[Federal Register Volume 84, Number 232 (Tuesday, December 3, 2019)]
[Notices]
[Pages 66266-66268]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2019-26089]
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SURFACE TRANSPORTATION BOARD
[Docket No. FD 34936]
Port of Moses Lake--Construction Exemption--Moses Lake, Wash.
On August 28, 2008, the Port of Moses Lake (the Port) filed a
petition seeking an exemption under 49 U.S.C. 10502 from the prior
approval requirements of 49 U.S.C. 10901 to construct approximately 7.6
miles of rail line as part of its Northern Columbia Basin Railroad
Project (NCBRP) in the City of Moses Lake, Wash. The Port's petition
involved construction of two lines, the first between the community of
Wheeler, Wash., and Parker Horn, Wash. (Segment 1), and the second
between existing trackage of the Columbia Basin Railroad Company, Inc.
(CBRW), and the east side of the Grant County International Airport
(Segment 2). Following the completion of the environmental review
process, which was conducted in conjunction with the Washington State
Department of Transportation, the Board authorized construction of the
environmentally preferred routes for Segments 1 and 2, subject to
environmental mitigation measures, finding that the construction
project met the standards for an exemption under 49 U.S.C. 10502.\1\
Port of Moses Lake--Constr. Exemption--Moses Lake, Wash. (August 2009
Decision), FD 34936 et al. (STB served Aug. 27, 2009).
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\1\ In the same 2008 petition, the Port also sought an exemption
under 49 U.S.C. 10502 from the prior approval requirements of 49
U.S.C. 10901 to acquire from CBRW approximately three miles of rail
line from Parker Horn near Stratford Road to a point near the Grant
County International Airport (Segment 3), which would connect
Segments 1 and 2. See Port of Moses Lake--Constr. Exemption--Moses
Lake, Wash., FD 34936 et al., slip op. at 1, 3 (STB served Aug. 27,
2009). The Board considered the acquisition request in Docket No. FD
34936 (Sub-No. 1) and granted the acquisition exemption in its
August 2009 Decision.
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On November 2, 2018, the Port filed a petition to reopen. In that
petition, the Port requested authorization from the Board under 49
U.S.C. 10502 for route modifications that account for land development
that has occurred along and near the proposed rail line since the
Board's August 2009 Decision.\2\ (Port Pet. 5-6, Nov. 2, 2018.) The
Port also sought to enable the Federal Railroad Administration (FRA) to
participate in a supplemental environmental review process for a
modified route.\3\ By decision served on January 28, 2019, the Board
reopened this proceeding to consider the Port's proposed route
modifications. Port of Moses Lake--Constr. Exemption--Moses Lake,
Wash., FD 34936 (STB served Jan. 28, 2019). The Board found that the
Port had presented new evidence and changed circumstances that
warranted reopening. Id. at 3. The Board found that it could not have
considered the proposed route modifications previously, as the proposed
revisions to the original route were designed to consider development
of the land along and near the originally proposed rail line that had
not occurred before the August 2009 Decision. Port of Moses Lake, FD
34936, slip op. at 3. OEA, along with the FRA participating as a
cooperating agency, then prepared a Supplemental EA to consider what,
if any, environmental impacts the proposed route modifications would
have and whether additional or different environmental conditions
should be recommended to mitigate those impacts.
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\2\ The petition sought to reopen only the proceeding relating
to construction authority (Docket No. FD 34936); the part of the
Port's project involving acquisition of the existing rail line
(Docket No. FD 34936 (Sub-No. 1)) remains unchanged.
\3\ To meet the Board's obligations under the National
Environmental Policy Act (NEPA), 42 U.S.C. 4321-4370i, and related
environmental laws, the Board prepares an Environmental Assessment
(EA) or an Environmental Impact Statement (EIS) addressing the
potential environmental impacts of all proposed rail constructions.
49 CFR 1105.6(a) & (b). The environmental review process, which is
undertaken by the Board's Office of Environmental Analysis (OEA), is
separate from the agency's consideration of the transportation
merits of the proposed modified project.
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In this decision, the Board authorizes the proposed modifications
to the Port's construction project, subject to OEA's final recommended
environmental mitigation measures. The environmental mitigation
measures are set forth in the Final Supplemental EA, as discussed
below.
Background
The Port is a noncarrier municipality of the State of Washington
that is chartered for economic development. It operates the Grant
County International Airport and the Grant County International Airport
Industrial Park, which has over one million square feet of building
space and over 1,000 acres of industrial and commercial land. (Port
Pet. 2, Aug. 28, 2008.) The Port states that NCBRP is one of the means
by which the Port seeks to promote economic development on industrial
lands near the airport and on land zoned for industry along Wheeler
Road. (Port Pet. 2, Nov. 2, 2018.) The Port further states that NCBRP
serves the purpose of moving rail traffic out of the downtown area of
the City of Moses Lake. (Id.)
Prior to the Board authorizing construction in 2009, OEA conducted
an environmental review that analyzed the environmental impacts
associated with the proposed project. After preparing, issuing, and
receiving public comment on a Preliminary EA, OEA issued a Final EA
recommending the environmentally preferred alignments for Segments 1
and 2 as well as proposed mitigation measures.\4\ OEA also issued a
Post EA that contained an executed Programmatic Agreement setting forth
the process to address any adverse effects to historic properties.
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\4\ For full descriptions of Segment 1 and Segment 2, see Final
EA 3-19 to 3-20, May 8, 2009, Port of Moses Lake--Constr.
Exemption--Moses Lake, Wash., FD 34936 et al. OEA's 2009
environmental review included analysis of the environmental impacts
associated with the proposed acquisition of Segment 3. As stated
above, however, the acquisition of Segment 3 is not at issue here.
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In its August 2009 Decision, the Board adopted the analysis and
conclusions of the Preliminary EA, Final EA, and Post EA, and imposed
the recommended mitigation measures. As noted above, the Board
authorized construction of the environmentally preferred routes for
Segment 1 and Segment 2. The Board found that, subject to the Port's
compliance with the mitigation measures, the construction, acquisition,
and operation of the proposed line would not significantly affect the
quality of the human environment. See August 2009 Decision, FD 34936 et
al., slip op. at 6-7.
According to the Port, the Board's authorization of the
construction of the route in 2009 coincided with a significant economic
downturn, which slowed implementation of the project and hampered the
Port's efforts to secure funding. (Port Pet. 3, Nov. 2, 2018.) The Port
indicates that it received state funding in 2015 and federal
[[Page 66267]]
funding from the U.S. Department of Transportation (USDOT)
(administered by the FRA) in 2017 and is now ready to proceed with the
NCBRP. (Id.) However, according to the Port, in the years since the
Board's authorization, the land along and near the proposed rail line
has been developed, and some modifications to the route originally
proposed are necessary to avoid the relocation of several new
commercial enterprises. (Id. at 3, 5.) Additionally, the Port states
that new development near the end of Segment 2 warrants a minor route
modification to ensure that the NCBRP can access all of the businesses
that would make use of rail service. (Id. at 5.)
Specifically, the Port proposes the following adjustments to the
proposed route, which it claims would reduce the impacts of the rail
project on the environment and the local community: (1) An adjustment
westward of the western end of Segment 1 to avoid buildings and reduce
the acreage of wetlands affected; (2) adjustments to Segment 1 to
enable the rail line to cross local roads at right angles, rather than
diagonally, which the Port claims would improve visibility, increase
safety, and otherwise reduce local impacts; and (3) modifications to
Segment 2 to better reach existing and future development in the Grant
County International Airport area, minimize impacts, and slightly
reduce the amount of track required. According to the Port, the
proposed route modifications would reduce the impact of the rail line
on existing land uses and better fulfill the objectives of the NCBRP.
(Id. at 3, 5-6.)
Discussion and Conclusions
Rail Transportation Analysis
The construction of new railroad lines requires prior Board
authorization, through either a certificate under 49 U.S.C. 10901 or,
as requested here, an exemption under 49 U.S.C. 10502 from the prior
approval requirements of Sec. 10901. Section 10901(c) directs the
Board to grant authority for rail line construction proposals unless it
finds the proposal ``inconsistent with the public convenience and
necessity.'' See Alaska R.R.--Constr. & Operation Exemption--A Rail
Line Extension to Port MacKenzie, Alaska, FD 35095, slip op. at 5 (STB
served Nov. 21, 2011), aff'd sub nom. Alaska Survival v. STB, 705 F.3d
1073 (9th Cir. 2013).
Under Sec. 10502(a), the Board must exempt a proposed rail line
construction from the prior approval requirements of section 10901 when
it finds that: (1) Those procedures are not necessary to carry out the
rail transportation policy of 49 U.S.C. 10101; and (2) either (a) the
proposal is of limited scope, or (b) the full application procedures
are not needed to protect shippers from an abuse of market power.
In the August 2009 Decision, the Board found that the Port met the
standards of 49 U.S.C. 10502 for an exemption from the prior approval
requirements of 49 U.S.C. 10901 for the construction of the proposed
rail line. The Board concluded that the requested exemption would
reduce the need for federal regulation (49 U.S.C. 10101(2)), ensure the
development of a sound rail transportation system with effective
competition to meet the needs of the shipping public (49 U.S.C.
10101(4)), foster sound economic conditions in transportation (49
U.S.C. 10101(5)), and reduce regulatory barriers to entry (49 U.S.C.
10101(7)). See August 2009 Decision, FD 34936 et al., slip op. at 4.
The Board also found that other aspects of the rail transportation
policy would not be affected. Finally, the Board found that regulation
of the proposed construction is not necessary to protect shippers from
the abuse of market power. Id.
No party has challenged the Board's 2009 conclusions on the
transportation merits of the proposal, and nothing in the record
developed since then calls those conclusions into question.\5\ The
Board therefore reaffirms those conclusions here and now turns to
consideration of the environmental aspects of the proposed
modifications to the project.
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\5\ On February 19, 2019, Ronald S. Piercy filed a comment
proposing an alternative route for Segment 1. On March 11, 2019, the
Port replied to Mr. Piercy's comment, noting that the issues raised
by Mr. Piercy are not relevant to the transportation merits of the
proposal. The Port further notes that the Board previously
considered and rejected an alternative routing, known as the
``Piercy Alternative,'' almost identical to that proposed now by Mr.
Piercy, in the Final EA, published in May 2009. (Port Reply 1-2.)
OEA addressed Mr. Piercy's comment in the Final Supplemental EA, as
discussed below.
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Environmental Analysis
NEPA requires Federal agencies to examine the environmental effects
of proposed federal actions and to inform the public concerning those
effects. Balt. Gas & Elec. Co. v. Nat. Res. Def. Council, 462 U.S. 87,
97 (1983). Under NEPA and related environmental laws, the Board must
consider significant potential beneficial and adverse environmental
impacts in deciding whether to authorize railroad construction as
proposed, deny the proposal, or grant it with conditions (including
environmental mitigation conditions). Lone Star R.R.--Track Constr. &
Operation Exemption--in Howard Cty., Tex., FD 35874, slip op at 4 (STB
served Mar. 3, 2016). While NEPA prescribes the process that must be
followed, it does not mandate a particular result. Robertson v. Methow
Valley Citizens Council, 490 U.S. 332, 350 (1989). Once the adverse
environmental effects, if any, of a proposed action have been
adequately identified and evaluated, an agency may conclude that other
values outweigh the environmental costs. Id.
The Environmental Review Process. On July 11, 2019, following the
reopening of this proceeding, OEA, with the FRA as a cooperating
agency, issued for public review and comment a Draft Supplemental EA
focusing on potential impacts arising from the Port's proposed
modifications to the original alignments of Segments 1 and 2 that had
been authorized by the Board in 2009. (Draft Supp. EA 1-2.) The Draft
Supplemental EA did not reevaluate components of the project that were
unchanged from those evaluated in the prior EA, including any potential
environmental impacts associated with Segment 3, which the Port is not
proposing to modify. (Id. at 1-3.) OEA preliminarily found the proposed
modifications to Segments 1 and 2, designated as Modification 1B for
Segment 1 and Modification 2B or 2C for Segment 2, to be preferable to
the original alignment that the Board authorized in 2009. (Id. at 7-1.)
OEA determined that the proposed modifications would avoid or limit the
project's impacts to the land development that has occurred in the
vicinity since 2009 and would increase the project's effectiveness by
ensuring that the new rail line is constructed near existing businesses
and facilities that are likely to use freight rail transportation.
(Id.) To avoid or minimize the potential environmental impacts of the
proposed project, the Draft Supplemental EA preliminarily recommended
revising certain mitigation measures imposed in the August 2009
Decision, removing one condition, and adding three new environmental
mitigation measures. (See Draft Supp. EA 6-1 to 6-12.) Based on the
analysis in the Draft Supplemental EA, OEA preliminarily concluded that
the proposed project, as conditioned, would not result in any
significant environmental impacts and that, therefore, an EIS would be
unnecessary in this proceeding. (Id. at 7-1.) OEA received five
comments on the Draft Supplemental EA.
On November 5, 2019, OEA issued the Final Supplemental EA. In the
Final Supplemental EA, OEA identified the environmentally preferred
alternative
[[Page 66268]]
for the proposed modifications to the rail line--Modification 1B for
Segment 1 and Modification 2C for Segment 2 (incorporating design
changes the Port proposed in comments on the Draft Supplemental EA)
\6\--based on the entire environmental record, including the comments
received on the Draft Supplemental EA and the final recommended
mitigation measures. (Final Supp. EA 5-1 to 5-2.) OEA considered and
responded to the five comments received on the Draft Supplemental EA,
which raised issues pertaining to fish, wildlife, and vegetation;
hazardous materials; socioeconomics and environmental justice; traffic
and transportation; water resources; and wetlands. (Id. at 3-1 to 3-
11.) OEA also responded to Mr. Piercy's comment on the Port's petition
to reopen, which raised issues pertaining to alternatives and traffic
and transportation. (Id. at 3-1 to 3-2.) Lastly, OEA set forth its
final recommended mitigation measures in Chapter 6 of the Final
Supplemental EA. (Id. at 6-1 to 6-12.)
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\6\ Final Supp. EA 1-3 to 1-6, 5-1 to 5-6.
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The Board's Analysis of the Environmental Issues. The Board adopts
the analysis and conclusions in both the Draft Supplemental EA and
Final Supplemental EA, and the final recommended mitigation measures.
The Board is satisfied that OEA, together with the FRA, has taken the
requisite hard look at the potential environmental impacts associated
with the Port's proposal and properly determined that, with the
recommended environmental mitigation in the Final Supplemental EA, the
proposed project will not have potentially significant environmental
impacts, and that preparation of an EIS is unnecessary.
Conclusion
In conclusion, after weighing the transportation merits and
environmental issues, and considering the entire record, the Board
authorizes the proposed route modifications to the Port's project that
have been assessed in the Draft and Final Supplemental EAs, subject to
compliance with the mitigation measures listed in Chapter 6 of the
Final Supplemental EA.
This action, as conditioned, will not significantly impact the
quality of the human environment or the conservation of energy
resources.
It is ordered:
1. Under 49 U.S.C. 10502, the Board exempts construction of the
Port's proposed route modifications from the prior approval
requirements of 49 U.S.C. 10901.
2. The Board adopts the environmental mitigation measures set forth
in the Final Supplemental EA and imposes them as conditions to the
exemption granted here.
3. Notice will be published in the Federal Register on December 3,
2019.
4. Petitions for reconsideration must be filed by December 23,
2019.
5. This decision is effective January 2, 2020.
Decided: November 26, 2019.
By the Board, Board Members Begeman, Fuchs, and Oberman.
Kenyatta Clay,
Clearance Clerk.
[FR Doc. 2019-26089 Filed 12-2-19; 8:45 am]
BILLING CODE 4915-01-P