[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