[Federal Register Volume 80, Number 98 (Thursday, May 21, 2015)]
[Notices]
[Pages 29390-29391]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2015-12409]


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DEPARTMENT OF TRANSPORTATION

Surface Transportation Board

[Docket No. FD 35915]


Tri-City Railroad Company--Petition for Declaratory Order

    By petition filed on March 19, 2015, Tri-City Railroad Company, LLC 
(TCRY) seeks a declaratory order concerning efforts by two Washington 
State communities to bisect TCRY's tracks with a proposed at-grade 
street crossing. TCRY, a Class III rail carrier, operates on 
approximately 16 miles of track, which is owned by the Port of 
Benton.\1\ The track runs through the City of Kennewick and the City of 
Richland (collectively the Cities).\2\ TCRY asks for a finding that 49 
U.S.C. 10501(b) preempts actions by the Cities to condemn and acquire a 
right-of-way for a proposed at-grade crossing, which would bisect 
TCRY's main and passing tracks.\3\ TCRY claims that the proposed at-
grade crossing would unreasonably interfere with current and planned 
railroad operations by rendering portions of the tracks unusable for 
switching and railcar storage operations.\4\ Moreover, TCRY asserts 
that the proposed at-grade crossing would create new hazards for both 
rail crews and members of the public.\5\
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    \1\ TCRY Pet. 4, Mar. 19, 2015.
    \2\ Id.
    \3\ Id. at 1-2 and 46-7.
    \4\ Id. at 1.
    \5\ Id.
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    TCRY states that the Cities filed two petitions with the Washington 
State Utilities and Transportation Commission (UTC) to approve the at-
grade crossing at issue here. TCRY claims that the first petition, 
filed in 2006, was denied because the UTC found that the Cities had 
failed to meet their burden to demonstrate that the

[[Page 29391]]

inherent and site-specific dangers of the crossing could be mitigated 
with the installation of safety devices.\6\ The Cities filed a second 
petition in 2013. TCRY notes that the UTC initially denied the 2013 
petition, but that it ultimately reversed itself and approved the 
crossing.\7\
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    \6\ Id. at 13-4.
    \7\ TCRY Pet. 18-20, Mar. 19, 2015.
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    The Cities subsequently served a pre-condemnation notice outlining 
the Cities' plan for condemning the right-of-way and offered $38,500 in 
compensation.\8\ On April 7, 2015, TCRY filed a supplemental affidavit 
of counsel with the Board and attached the Cities' Notice of Planned 
Final Action and the proposed condemnation ordinances. According to the 
Cities, approval of these ordinances would authorize the commencement 
of eminent domain (condemnation) proceedings against TCRY.\9\ Although 
the Cities were scheduled to consider the condemnation ordinances in 
April, the record is silent concerning the outcome.
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    \8\ Id. at 23.
    \9\ TCRY's Supplemental Aff. Ex. 1, Apr. 7, 2015.
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    The Cities did not file a reply to the petition for declaratory 
order as provided for in 49 CFR1104.13(a), but they did file a notice 
of appearance on March 20, 2015.
    The Board has discretionary authority under 5 U.S.C. 554(e) and 49 
U.S.C. 721 to issue a declaratory order to eliminate a controversy or 
remove uncertainty. Here, a controversy exists as to whether the 
proposed condemnation action to construct an at-grade crossing is 
preempted under 10501(b), and the record is incomplete. The Board will 
therefore institute a declaratory order proceeding and consider the 
matter under the modified procedure rules at 49 CFR pt. 1112.
    The Board will treat TCRY's March 19 petition as its opening 
statement. Replies and comments from interested parties are due June 8, 
2015. TCRY's rebuttal to all replies and comments shall be due June 17, 
2015.
    It is ordered:
    1. A declaratory order proceeding is instituted. This proceeding 
will be handled under the modified procedure on the basis of written 
statements submitted by the parties. All parties must comply with the 
Rules of Practice, including 49 CFR parts 1112 and 1114.
    2. Replies are due June 8, 2015.
    3. TCRY's rebuttal is due June 17, 2015.
    4. Notice of the Board's action will be published in the Federal 
Register.
    5. This decision is effective on its service date.

    Decided: May 18, 2015.

    By the Board, Rachel D. Campbell, Director, Office of 
Proceedings.
Raina S. White,
Clearance Clerk.
[FR Doc. 2015-12409 Filed 5-20-15; 8:45 am]
BILLING CODE 4915-01-P