[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