[Federal Register Volume 74, Number 232 (Friday, December 4, 2009)]
[Notices]
[Pages 63821-63822]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-28936]
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DEPARTMENT OF TRANSPORTATION
Surface Transportation Board
[STB Finance Docket No. 35305]
Arkansas Electric Cooperative Corporation--Petition for
Declaratory Order
AGENCY: Surface Transportation Board, DOT.
ACTION: Institution of declaratory order proceeding; request for
notices of intent to participate and comments; and issuance of
procedural schedule.
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SUMMARY: In response to a petition filed by Arkansas Electric
Cooperative Corporation (AECC) on October 2, 2009, and the reply of
BNSF Railway Company (BNSF), the Board is instituting a declaratory
order proceeding under 49 U.S.C. 721 and 5 U.S.C. 554(e).\1\ The issues
before the Board arise from Tariff 6041-B Items 100 and 101 (Tariff
provisions), issued by BNSF on May 27, 2009, which require that Powder
River Basin (PRB) coal shippers using the Joint Line \2\ or the Black
Hills Subdivision must ensure that the emission of coal dust from the
cars does not exceed the coal dust emissions standards set by BNSF. The
issues raised in these filings include: (1) Whether the Tariff
provisions constitute an unreasonable rule or practice; (2) whether
BNSF may establish rules designed to inhibit the dispersion of coal
dust from coal trains operating over its lines; and (3) whether refusal
to provide service for non-compliance with the Tariff provisions or
other actions to enforce compliance would violate BNSF's common carrier
obligation. Due to the vital role transportation of coal by rail plays
in the nation's energy supply and the economy in general, the Board
seeks public comment and participation on this matter.
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\1\ By a separate decision, the Board will address the
imposition of a protective order in this proceeding.
\2\ The Joint Line is the rail line serving the southern PRB
that is jointly owned by BNSF and the Union Pacific Railroad Company
(UP) and operated and maintained by BNSF.
DATES: The effective date of this decision is December 1, 2009. Any
person who wishes to participate in this proceeding as a party of
record (POR) must file, no later than December 11, 2009, a notice of
intent to participate. Discovery will close on February 1, 2010.
Opening evidence and argument from all PORs is due on March 16, 2010.
Reply evidence and argument from all PORs is due on April 30, 2010.
Rebuttal evidence and argument from all PORs is due on May 17, 2010.\3\
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\3\ Although oral argument on these issues was requested by
BNSF, we are not ruling on that request at this time.
ADDRESSES: Any filing submitted in this proceeding must be submitted
either via the Board's e-filing format or in the traditional paper
format. Any person using e-filing should attach a document and
otherwise comply with the instructions at the E-FILING link on the
Board's Web site, at http://www.stb.dot.gov. Any person submitting a
filing in the traditional paper format should send an original and 10
copies (and also an electronic version), referring to STB Finance
Docket No. 35305, to: Surface Transportation Board, 395 E Street, SW.,
Washington, DC 20423-0001. In addition, one copy of each filing in this
proceeding must be sent (and may be sent by e-mail only if service by
e-mail is acceptable to the recipient) to each of the following: (1)
Eric Von Salzen (representing AECC), McLeod, Watkinson & Miller, One
Massachusetts Avenue, NW., Suite 800, Washington, DC 20001; (2) Samuel
M. Sipe, Jr. (representing BNSF), Steptoe & Johnson LLP, 1330
Connecticut Avenue, NW., Washington, DC 20036; (3) Joe Rebein
(representing UP), Shook, Hardy & Bacon LLP, 2555 Grand Blvd., Kansas
City, Missouri 64108; (4) John H. LeSeur (representing Western Coal
Traffic League (WCTL)), Slover & Loftus LLP, 1224 Seventeenth Street,
NW., Washington, DC 20036; and (5) any other person designated as a POR
on the service-list notice (as explained below, the service-list notice
will be issued as soon after December 11, 2009, as practicable).
Copies of written comments will be available for viewing and self-
copying at the Board's Public Docket Room, Room 131, and will be posted
to the Board's Web site.
FOR FURTHER INFORMATION CONTACT: Joseph H. Dettmar, (202) 245-0395.
[Assistance for the hearing impaired is available through the Federal
Information Relay Service (FIRS) at: 1-800-877-8339].
SUPPLEMENTARY INFORMATION: AECC is a generation and transmission
cooperative that provides wholesale electric power to electric
cooperatives throughout Arkansas. AECC is a co-owner, with other
utilities, of generation assets that burn millions of tons of PRB coal
annually. During normal operating conditions, three of these plants--
White Bluff at Redfield, AR, Independence at Newark, AR, and Flint
Creek at Gentry, AR--receive all of their PRB coal via the Joint Line.
On May 27, 2009, BNSF issued the Tariff provisions stating that
``[e]ffective November 1, 2009, Shipper shall take all steps necessary
to ensure that Trains handling cars loaded with Coal from any mine
origin that move over [the Joint Line or Black Hills Subdivision] shall
not emit more than an Integrated Dust Value (IDV.2) of [300 units or
245 units, respectively] in order to enhance retention of coal in rail
cars.'' AECC seeks a declaratory order stating that the Tariff
provisions constitute an unreasonable rule or practice and an illegal
refusal to provide service. AECC also asks that the order state that
BNSF must permit shippers to transport coal on the Joint Line and Black
Hills Subdivision without such restrictions.
[[Page 63822]]
On October 21, 2009, BNSF, a Class-I rail carrier operating in the
western United States, replied to AECC's petition contesting, among
other things, AECC's underlying presumption that the Tariff provisions
are injurious to coal shippers. BNSF states that coal dust contaminates
the ballast and can impact ballast integrity, ultimately causing
derailments. Therefore, BNSF claims the Tariff provisions are intended
to promote the safe, efficient, and uninterrupted flow of coal from
mine to generating station. BNSF itself requests the Board issue a
declaratory order stating that (1) BNSF is entitled to establish rules
designed to inhibit the dispersion of coal dust over its lines in the
interest of safe and efficient rail operations and of reliability of
service on its rail lines; and (2) BNSF's Tariff provisions are not
unreasonable.
Under 5 U.S.C. 554(e), the Board has discretionary authority to
issue a declaratory order to terminate a controversy or remove
uncertainty. The issues raised by AECC and BNSF merit further
consideration. A declaratory order proceeding is thus instituted in
this proceeding.
We received, on October 22, 2009, a letter from WCTL requesting
that we accept public input on the declaratory order proceeding.\4\ Due
to the significance of this matter to coal shippers, railroads, and
other interested parties, we are opening this declaratory order
proceeding for public participation. Any person who wishes to
participate in this proceeding as a POR must file, no later than
December 11, 2009, a notice of intent to participate and must adhere to
the procedural schedule established in the Appendix. To ensure each POR
receives all filings, the Board will serve, as soon after as
practicable, a notice containing the official service list (the
service-list notice). Each POR will be required to serve upon all other
PORs, within 10 days of the service date of the service-list notice,
copies of all filings previously submitted by that party (to the extent
such filings have not previously been served upon such other parties).
Each POR also will be required to file with the Board, within 10 days
of the service date of the service-list notice, a certificate of
service indicating that the service required by the preceding sentence
has been accomplished. Every filing made by a POR after the service
date of the service-list notice must have its own certificate of
service indicating that all PORs on the service list have been served
with a copy of the filing. Members of the United States Congress and
Governors are not parties of record and need not be served with copies
of filings, unless any Member or Governor has requested to be, and is
designated as, a POR.
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\4\ WCTL also requested leave to intervene, to which UP replied
on October 28, 2009. In a separate filing on October 21, 2009, UP
also requested leave to intervene. Because we are inviting public
participation in this proceeding, we need not address the requests
for leave to intervene, but we have made the requesting parties
PORs.
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In their filings, AECC and BNSF discuss the alleged adverse effects
of coal dust on rail roadbeds and ballast, implicating safety and
environmental issues. Because the Board's consideration of the issues
raised in this proceeding could relate to other Federal agencies' areas
of expertise, any agency with an interest in the outcome of these
issues is encouraged to comment.
Both AECC and BNSF request that a procedural schedule be adopted.
They both request that we allow for a 60-day period of discovery. While
the legal nature of a declaratory order proceeding might not always
necessitate discovery, due to the factually intense nature of the
dispute here we will permit discovery among BNSF, AECC, and any other
shippers potentially affected by the tariff, including shipper
organizations that represent those shippers. These entities may conduct
discovery pursuant to the Board's regulations at 49 CFR 1114.21, et
seq. In the interests of ensuring the necessary discovery is obtained
in a timely and efficient manner, we will assign and authorize a Board
employee to act as a discovery facilitator to entertain and rule upon
all disputes concerning discovery in this proceeding. Any appeals of
decisions by the discovery facilitator must be filed within 3 business
days of the date of the action and responses to appeals must be filed
within 3 business days thereafter. Appeals will be governed by the
standard at 49 CFR 1115.1(c).\5\
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\5\ 49 CFR 1115.1(c) states, in relevant part, that ``appeals
are not favored; they will be granted only in exceptional
circumstances to correct a clear error of judgment or to prevent
manifest injustice.''
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Board decisions, notices, and filings in this and other Board
proceedings are available on our Web site at http://www.stb.dot.gov.
Decided: November 30, 2009.
It is ordered:
1. A declaratory order proceeding under 5 U.S.C. 554 and 49 U.S.C.
721 is instituted.
2. The parties to this proceeding must comply with the procedural
schedule adopted by the Board in this proceeding as shown in the
Appendix.
3. The parties to this proceeding must comply with the procedural
requirements described in this decision.
4. The special appellate procedures set forth in this decision will
apply to rulings made by the Board employee assigned to act as a
discovery facilitator in this matter.
5. This decision is effective on December 1, 2009.
By the Board, Chairman Elliott, Vice Chairman Nottingham, and
Commissioner Mulvey.
Kulunie L. Cannon,
Clearance Clerk.
Appendix
Procedural Schedule
December 1, 2009.................. Declaratory order proceeding
instituted.
December 11, 2009................. Notices of intent to participate
due.
February 1, 2010.................. Close of discovery.
March 16, 2010.................... Opening evidence and argument due
from all PORs.
April 30, 2010.................... Reply evidence and argument due from
all PORs.
May 17, 2010...................... Rebuttal evidence and argument due
from all PORs.
[FR Doc. E9-28936 Filed 12-3-09; 8:45 am]
BILLING CODE 4915-01-P