[Federal Register Volume 86, Number 242 (Tuesday, December 21, 2021)]
[Notices]
[Pages 72366-72392]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2021-27560]



[[Page 72365]]

Vol. 86

Tuesday,

No. 242

December 21, 2021

Part III





 Surface Transportation Board





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Seven County Infrastructure Coalition--Rail Construction & Operation 
Exemption--In Utah, Carbon, Duchesne, and Uintah Counties, Utah; Notice

  Federal Register / Vol. 86 , No. 242 / Tuesday, December 21, 2021 / 
Notices  

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SURFACE TRANSPORTATION BOARD

[Docket No. FD 36284]


Seven County Infrastructure Coalition--Rail Construction & 
Operation Exemption--In Utah, Carbon, Duchesne, and Uintah Counties, 
Utah

    In 2020, the Seven County Infrastructure Coalition (Coalition) 
filed a petition for exemption under 49 U.S.C. 10502 from the prior 
approval requirements of 49 U.S.C. 10901 for authorization to construct 
and operate an approximately 85-mile rail line connecting two termini 
in the Uinta Basin (Basin) near South Myton Bench, Utah, and Leland 
Bench, Utah, to the national rail network at Kyune, Utah (the Line). 
According to the Coalition, the Line would provide shippers in the 
Basin with a viable alternative to trucking, which is currently the 
only available transportation option. (Pet. for Exemption 13-15.)
    On January 5, 2021, the Board issued a decision assessing the 
transportation merits of the proposed transaction and preliminarily 
concluding, subject to completion of the ongoing environmental review, 
that the proposal meets the statutory standard for an exemption on the 
transportation merits. Seven Cnty. Infrastructure Coal.--Rail Constr. & 
Operation Exemption--in Utah, Carbon, Duchesne, & Uintah Cntys., Utah 
(January 5 Decision), FD 36284, slip op. at 8-10 (STB served Jan. 5, 
2021) (86 FR 1564) (with Board Member Oberman dissenting). The Board 
noted that it was not granting the exemption or allowing construction 
to begin and that after the Board has considered the potential 
environmental impacts associated with this proposal and weighed those 
potential impacts with the transportation merits, it would issue a 
final decision either granting the exemption, with conditions, if 
appropriate, or denying it. Id. at 2. The Board received petitions for 
reconsideration of the January 5 Decision and denied those requests in 
a decision served on September 30, 2021. Seven Cnty. Infrastructure 
Coal.--Rail Constr. & Operation Exemption--in Utah, Carbon, Duchesne, & 
Uintah Cntys., Utah (September 30 Decision), FD 36284 (STB served Sept. 
30, 2021) (with Board Member Oberman dissenting).
    The Board's Office of Environmental Analysis (OEA), in cooperation 
with stakeholders, tribes, and federal, state, and local agencies, has 
completed a thorough environmental analysis that reviewed the potential 
environmental impacts that could result from the proposed project, 
culminating in a Final Environmental Impact Statement (Final EIS) 
served on August 6, 2021. OEA reviewed a number of build alternatives 
and a No-Action (or No-Build) Alternative to take a ``hard look'' at 
potential environmental impacts as required by the National 
Environmental Policy Act of 1969 (NEPA), 42 U.S.C. 4321-4370m-12. The 
environmental review process has included extensive opportunity for 
public participation as well as input from agencies and other 
interested parties. Based on this analysis, OEA identifies the Whitmore 
Park Alternative as its Environmentally Preferable Alternative for the 
Line because it would avoid or minimize major environmental impacts 
compared to the two other build alternatives, as discussed in more 
detail below. OEA also recommends environmental conditions (including 
both voluntary mitigation proposed by the Coalition and additional 
mitigation developed by OEA) to avoid, minimize, or mitigate the 
transaction's potential environmental impacts.
    In this decision, the Board will grant final approval for a 
construction and operation exemption for the Whitmore Park Alternative, 
subject to OEA's final recommended environmental mitigation measures, 
with minor changes. The environmental mitigation is set forth in 
Appendix B of this decision.

Background

    On May 29, 2020, the Coalition filed a petition for exemption from 
the prior approval requirements of 49 U.S.C. 10901 under 49 U.S.C. 
10502 to construct and operate the Line, which will connect with Union 
Pacific Railroad Company (UP) at Kyune, Utah. The Coalition notes that 
it is an independent political subdivision of the State of Utah, whose 
member counties include Carbon, Daggett, Duchesne, Emery, San Juan, 
Sevier, and Uintah Counties. (Pet. for Exemption 5.) It was formed to, 
among other things, identify and develop infrastructure projects that 
will promote resource utilization and development. (Id.)
    The Coalition asserts that goods produced or consumed in the Basin 
now can be transported only by truck and that the proposed project 
would give shippers an additional freight transportation option, 
eliminating longstanding transportation constraints. (Id. at 13-15.) It 
explains that adding a rail transportation option would provide local 
industries the opportunity to access new markets and increase their 
competitiveness in the national marketplace, and that the removal of 
transportation constraints would benefit oil producers, mining 
companies, ranchers, farmers, and other local industries. (Id. at 15.)
    The Coalition argues that regulation of the construction and 
operation of the proposed line under section 10901 is not needed to 
carry out the rail transportation policy (RTP) at 49 U.S.C. 10101, that 
the project would promote several provisions of the RTP, and that an 
application under section 10901 is not required to protect shippers 
from an abuse of market power. (Pet. for Exemption 21-22.) In 
considering the petition, the Coalition asked that the Board follow a 
two-step approach, addressing the transportation aspects of the project 
in advance of the environmental issues. (Id. at 26-28.)
    The Board received filings both supporting and opposing the 
petition for exemption. Several government officials filed comments in 
support of the petition for exemption. January 5 Decision, FD 36284, 
slip op. at 3.\1\ The opponents included the Center for Biological 
Diversity (CBD), the Argyle Wilderness Preservation Alliance (Argyle), 
and numerous individuals. Id. at 1.
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    \1\ To date, the Board has received letters supporting the 
project from the Ute Indian Tribe of the Uintah and Ouray 
Reservation (Ute Indian Tribe), U.S. Senators Mitt Romney and Mike 
Lee and U.S. Representatives Rob Bishop, Chris Stewart, John Curtis, 
Burges Owens, and Blake Moore. The Board also received letters 
supporting the project from state officials, including Utah's former 
Governor Gary R. Herbert, its current Governor Spencer J. Cox, 
Lieutenant Governor Deidre M. Henderson, State Senate President J. 
Stuart Adams, and State House Speaker Brad Wilson.
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    In its January 5 Decision, the Board addressed the substantive 
comments, concluded that an application was not necessary, and found 
the requested approach of issuing a preliminary decision on the 
transportation merits appropriate. The Board preliminarily concluded, 
subject to completion of the ongoing environmental and historic review, 
that the proposed transaction meets the statutory standards for 
exemption under section 10502. January 5 Decision, FD 36284, slip op. 
at 1. As noted above, the Board stated that it was not granting the 
exemption or allowing construction to begin and that after the Board 
has considered the potential environmental impacts associated with this 
proposal and weighed those potential impacts with the transportation 
merits, it would issue a final decision either granting the exemption, 
with conditions, if appropriate, or denying it. Id. at 2.
    The Board received petitions for reconsideration of the January 5 
Decision from Eagle County, Colo., on

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January 25, 2021, and CBD on January 26, 2021. The agency denied those 
requests in its September 30 Decision, where among other things, the 
Board rejected arguments that an application was required because of 
concerns related to potential reactivation of the Tennessee Pass Line 
in Colorado and that the Board's consideration of the statutory 
standards for exemption in the January 5 Decision was inadequate. 
September 30 Decision, FD 36284, slip op. at 3, 5-7.
    During this time, OEA was conducting its environmental review of 
potential impacts from constructing and operating the Line. As part of 
this process, OEA issued a Notice of Intent to Prepare an EIS on June 
19, 2019, a Final Scope of Study for the EIS on December 13, 2019, and 
a Draft EIS on October 30, 2020. The Draft EIS analyzed three Action 
Alternatives for the proposed Line, as well as the No-Action 
Alternative. The three alternatives examined were the Indian Canyon 
Alternative, Wells Draw Alternative, and Whitmore Park Alternative. 
(Draft EIS S-5.) Each of the Action Alternatives would extend from two 
terminus points in the Basin near Myton, Utah, and Leland Bench to a 
proposed connection with UP's existing Provo Subdivision near Kyune. 
(Id. at S-7.). A map of the Action Alternatives is found at Appendix A 
of this decision. The Indian Canyon Alternative, Wells Draw 
Alternative, and Whitmore Park Alternative would be approximately 81 
miles, 103 miles, and 88 miles in length, respectively. (Draft EIS S-
7.) In its request for authority, the Coalition identified the Whitmore 
Park Alternative as its preferred route for the Line.
    Based on the analysis in the Draft EIS, OEA concluded that 
construction and operation of any of the Action Alternatives would 
result in environmental impacts, some of which would be significant. 
(Id. at S-7 to 13.) OEA preliminarily concluded, however, that, among 
the three Action Alternatives, the Whitmore Park Alternative would 
result in the fewest significant impacts on the environment. (Id. at S-
12.)
    OEA invited agency and public comment on the Draft EIS, including 
its preliminary conclusion on the Whitmore Park Alternative and the 
conditions OEA preliminarily recommended to mitigate the impacts of 
constructing and operating any of the Action Alternatives. OEA 
established a comment period, which it agreed to extend several times 
upon request, until February 12, 2021. OEA also conducted six online 
public meetings during the comment period. In total, OEA received 1,934 
comment submissions on the Draft EIS, including both written and oral 
comments. (Final EIS S-5.)
    In the Final EIS, OEA includes all of the comments received on the 
Draft EIS and OEA's responses to substantive comments, as well as all 
changes to the analysis that resulted from the comments. OEA concludes 
that the Whitmore Park Alternative is indeed the Environmentally 
Preferable Alternative, and that if the Board decides to permit 
construction and operation of a rail line, the Board should authorize 
that alternative to minimize impacts of construction and operation on 
the environment. (Final EIS 2-48.) OEA also provides its final 
recommendations for environmental mitigation to minimize potential 
environmental impacts. (Id. at Chapter 4.)
    On August 25, 2021, the State of Utah (State) filed in support of 
the Coalition's project but asked that OEA modify several mitigation 
measures that OEA recommends in the Final EIS. In addition, the U.S. 
Environmental Protection Agency (USEPA) filed comments on the Final EIS 
on September 2, 2021, recommending certain changes to an air emissions 
dispersion model that OEA ran as part of the environmental review 
process. On October 1, 2021, the Ute Indian Tribe filed a comment in 
response to the Final EIS stating that it supports the rail 
construction project. CBD filed a comment on October 18, 2021, and 
supplemental exhibits on November 8, 2021, raising objections to the 
exemption sought by the Coalition, the Final EIS, and a related 
Biological Opinion (BO) issued by the U.S. Fish and Wildlife Service 
(USFWS) on September 20, 2021.\2\
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    \2\ CBD simultaneously filed a petition asking that the Board 
accept its comment into the record. It claims that the Board has a 
compelling interest in accepting the filing, partly to allow the 
agency to fully consider the impacts of the project. (CBD Comment 1, 
Oct. 18, 2021.) The Coalition filed in opposition to CBD's request 
on October 22, 2021. In the interest of a complete record, CBD's 
filing as well as the other filings commenting on the Final EIS will 
be accepted into the record. See Alaska R.R.--Constr. & Operation 
Exemption--Rail Line Between N. Pole & Delta Jct., Alaska, FD 34658, 
slip op. at 6 (STB served Jan. 6, 2010).
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Discussion and Conclusions

    The construction and operation 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 section 10901. Section 10901(c) is a 
permissive licensing standard that directs the Board to grant rail line 
construction proposals unless the agency finds the proposal 
``inconsistent with the public convenience and necessity.'' Thus, 
Congress has established a presumption that rail construction projects 
are in the public interest and should be approved unless shown 
otherwise. See Alaska R.R.--Constr. & Operation Exemption--Rail Line 
Extension to Port MacKenzie, Alaska, FD 35095 (STB served Nov. 21, 
2011), aff'd sub nom. Alaska Survival v. STB, 705 F.3d 1073 (9th Cir. 
2013).
    Under section 10502(a), the Board must exempt a proposed rail line 
construction from the prior approval requirements of section 10901 when 
the Board finds that: (1) Application of those procedures is not 
necessary to carry out the RTP of 49 U.S.C. 10101; and (2) either (a) 
the proposal is of limited scope, or (b) the full application 
procedures are not necessary to protect shippers from an abuse of 
market power.
    In the January 5 Decision, the Board determined that the Line would 
enhance competition by providing shippers in the area with a freight 
rail option that does not currently exist and that the Line would 
foster sound economic conditions in transportation, consistent with 
section 10101(4) and (5). January 5 Decision, FD 36284, slip op. at 9. 
Additionally, the Board found that section 10101(2) and section 
10101(7) would be furthered by an exemption because it would minimize 
the need for federal regulatory control over the rail transportation 
system and reduce regulatory barriers to entry by minimizing the time 
and administrative expense associated with the construction and 
commencement of operations. January 5 Decision, FD 36284, slip op. at 
9.
    The Board also discussed Argyle's claims that section 10101(8), 
concerning public safety, and section 10101(11), concerning safe 
working conditions, would be undermined by the project because rail 
traffic could cause forest fires and substantial truck traffic. Id. at 
8. The Board noted that it takes these concerns seriously and that they 
would be examined as part of OEA's environmental review and further 
examined by the Board in its final decision. Id. at 9.
    Nothing in the environmental record calls into question the Board's 
determination in the January 5 Decision that section 10101(2), (4), 
(5), and (7) would be furthered by the rail construction project. 
Moreover, as discussed below and in the Final EIS, nothing in the 
environmental record raises significant concerns regarding section 
10101(8) and (11). The Board

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therefore reaffirms its analysis here and now turns to consideration of 
the environmental aspects of the proposed project.

Environmental Analysis

1. The Requirements of NEPA
    NEPA requires federal agencies to examine the environmental impacts 
of proposed major federal actions and to inform the public concerning 
those effects. See 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 environmental impacts in 
deciding whether to authorize a railroad construction as proposed, deny 
the proposal, or grant it with conditions (including environmental 
mitigation conditions). The purpose of NEPA is to focus the attention 
of the government and the public on the likely environmental 
consequences of a proposed action before it is implemented to minimize 
or avoid potential adverse environmental impacts. See Marsh v. Or. Nat. 
Res. Council, 490 U.S. 360, 371 (1989). While NEPA prescribes the 
process that must be followed, it does not mandate a particular result. 
See Robertson v. Methow Valley Citizens Council, 490 U.S. 332, 350 
(1989). Thus, once the adverse environmental effects have been 
adequately identified and evaluated, the Board may conclude that other 
values outweigh the environmental costs. Id. at 350-51.
    The Board has assessed the Action Alternatives, OEA's final 
recommended environmental mitigation, and OEA's conclusions regarding 
the environmental impacts associated with this construction proposal. 
The Board has also fully considered the entire environmental record, 
including the Draft EIS, public comments, the Final EIS, and the 
comments received following issuance of the Final EIS from the State, 
CBD, USEPA, and the Ute Indian Tribe. CBD, generally, argues that the 
Final EIS fails to sufficiently analyze and disclose environmental 
impacts or recommend appropriate mitigation. (CBD Comment 2-6, Oct. 18, 
2021.) Most of these objections, however, are objections CBD already 
had raised when commenting on the Draft EIS. Below, the Board briefly 
discusses OEA's analysis of several major issues previously raised in 
comments on the Draft EIS and then responds to the major issues raised 
following issuance of the Final EIS by CBD and the State as well as 
USEPA's request to modify some of the recommended environmental 
mitigation in the Final EIS. The Draft EIS and Final EIS discuss many 
issues beyond what the Board addresses in this decision; however, the 
Board adopts OEA's analysis and conclusions in those documents, even if 
specific issues are not addressed here.
    In the Final EIS, OEA identifies the major environmental impacts 
that could result from construction and operation of the Line. These 
major impacts include impacts on water resources, impacts on special 
status species, impacts from wayside noise during rail operations, 
impacts related to land use and recreation, socioeconomic impacts, and 
issues of concern to the Ute Indian Tribe, including impacts on 
cultural resources. During the EIS process, OEA also analyzed other 
types of environmental impacts that OEA concluded would not be 
significant if the Coalition's voluntary mitigation measures and OEA's 
recommended mitigation measures were implemented. These minor impacts 
include impacts on vehicle safety and delay, impacts related to rail 
operations safety, impacts on big game, impacts on fish and wildlife, 
impacts on vegetation, impacts related to geology and soils, impacts on 
hazardous waste sites, impacts from construction-related noise, 
vibration impacts, impacts related to energy resources, impacts on 
paleontological resources, and visual impacts.
2. Range of Alternatives
    NEPA requires that federal agencies consider reasonable 
alternatives to the proposed action. Citizens Against Burlington, Inc. 
v. Busey, 938 F.2d 190, 195-96 (D.C. Cir. 1991). To be considered, an 
alternative must be `` `reasonable [and] feasible' in light of the 
ultimate purpose of the project.'' Protect Our Cmtys. Found. v. Jewell, 
825 F.3d 571, 580-81 (9th Cir. 2016) (quoting City of Carmel-by-the-Sea 
v. U.S. Dep't of Transp., 123 F.3d 1142, 1155 (9th Cir. 1997)); see 
also Busey, 938 F.2d at 195 (``rule of reason'' applies to the 
selection and discussion of alternatives). Here, the three Action 
Alternatives were developed as part of a years-long review of routes by 
the Utah Department of Transportation (UDOT) and the Coalition, and 
finally OEA. (Final EIS Sec. 2.2.) OEA determined the range of 
reasonable alternatives by first looking at potential conceptual 
routes. (Id.) In evaluating these conceptual routes, OEA looked at many 
factors, including logistical constraints, the potential for 
disproportionately significant environmental impacts, and construction 
and operations costs. (Id.) As explained in detail in Chapter 2 of the 
Final EIS, the primary reasons certain identified conceptual routes 
were not moved forward for analysis in the EIS were because they were 
infeasible due to the prevailing topography surrounding the Basin and 
because they would require substantial cut-and-fill and large or 
numerous bridges, as well as numerous large tunnels to pass through 
mountains. For these reasons and after extensive analysis, OEA 
determined that there were three reasonable Action Alternatives, one of 
which was the Environmentally Preferable Whitmore Park Alternative. 
(Id. at Chapter 2.)
    CBD contends that the Final EIS does not consider a reasonable 
range of alternatives. (CBD Comment 70-71, Oct. 18, 2021.) CBD, 
however, does not identify any alternative routes that OEA did not 
analyze that CBD contends are reasonable. Nor does CBD provide any 
evidence that conceptual routes not moved forward for analysis as 
alternatives in the EIS are in fact reasonable. CBD asserts that OEA 
should have considered electrified rail or another ``solutionary 
alternative.'' (Id. at 71.) Electrified rail, however, would not 
satisfy the proposed project's purpose and need because of the capital 
costs associated with electrification. (Final EIS App. T-83-84.) Those 
costs, including installing power generating stations and overhead 
powerlines for the entire length of the approximately 85-mile rail 
line, would render the Line infeasible.\3\ As a result, OEA's 
determination as to the range of reasonable alternatives is consistent 
with NEPA and the ``rule of reason'' applicable to every environmental 
analysis. See Busey, 938 F.2d at 195-96; Jewell, 825 F.3d at 581 (any 
potential alternative must be viewed in the context of its feasibility 
and consistency with agency goals); Env't Def. Fund, Inc. v. Andrus, 
619 F.2d 1368, 1375 (10th Cir. 1980). The Board adopts OEA's analysis 
and concludes that the Final EIS's selection of alternatives, along 
with the extensive discussion in the Final EIS regarding why numerous 
theoretical alternatives were not feasible or did not otherwise meet 
the project's purpose and need, was reasonable and in compliance with 
NEPA.
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    \3\ Additionally, there is a significant possibility that the 
infrastructure required for an electrified rail line itself could 
adversely affect biological resources, including the greater sage-
grouse. (See, e.g., Final EIS 3.4-33 (discussing potential adverse 
effects on wildlife caused by power distribution lines, 
communications towers, and fences), 3.15-27 (discussing potential 
adverse effects on greater sage-grouse caused by power lines).)

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3. Special Status Species
    Special status species include species that are listed or proposed 
to be listed as threatened or endangered under the Endangered Species 
Act (ESA); candidate species for ESA listing; bald and golden eagles; 
and sensitive species listed by the U.S. Bureau of Land Management 
(BLM), the U.S. Forest Service (Forest Service), the State, or the Ute 
Indian Tribe. (Final EIS Sec. 3.4.1.) Any of the Action Alternatives 
would impact special status species. For example, the Action 
Alternatives would all cross suitable habitat for several plant species 
that are listed as threatened or endangered under the ESA, including 
Pariette cactus, Uinta Basin hookless cactus, Barneby ridge-cress, and 
Ute ladies'-tresses.\4\ (Id. at S-8.)
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    \4\ CBD criticizes the Final EIS for not conducting field 
surveys of all of the Action Alternatives to establish a baseline 
population for each of the threatened or endangered plants species 
and, instead, planning to conduct those surveys after the EIS 
process is completed. (CBD Comment 62-64, Oct. 18, 2021.) While 
field surveys were conducted to establish the presence and extent of 
suitable habitat for each threatened or endangered plant species 
along each of the Action Alternatives, OEA appropriately did not 
conduct clearance surveys that would establish baseline populations 
for those species as part of the EIS process. Per USFWS guidelines, 
clearance surveys are only valid for one year and, if construction 
is authorized, it is anticipated that construction would last two to 
three years and start no earlier than 2022. See USFWS's Utah Field 
Office Guidelines for Conducting and Reporting Botanical Inventories 
and Monitoring of Federally Listed, Proposed and Candidate Plants 
(USFWS 2011) at https://www.fws.gov/utahfieldoffice/Documents/Plants/USFWS%20UtahFO%20Plant%2 0Survey%20Guidelines%20Final.pdf. 
Therefore, any clearance surveys conducted during the EIS phase 
would be outdated at the time of construction and would not provide 
useful information about the locations of individual plants at the 
time that impacts on those plants would occur. (Final EIS T-198-99.) 
Although OEA did not conduct clearance surveys to establish baseline 
populations, OEA, in consultation with USFWS, used a combination of 
suitable habitat field surveys and USFWS mapping data as the best 
available data to assess impacts on threatened and endangered plant 
species, while also providing for clearance surveys to be conducted 
after the EIS process so that those clearance surveys will be in 
compliance with USFWS guidelines and will provide accurate data 
about the locations of individual plants at the relevant time.
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    The Coalition has presented voluntary mitigation measures to lessen 
the impacts to special status species. Additionally, OEA has consulted 
with USFWS and other appropriate agencies to develop appropriate 
measures for further avoiding, minimizing, or mitigating impacts on 
those species. (Id. at S-8.) For example, pursuant to VM-39 and one of 
OEA's mitigation measures, BIO-MM-9, the Coalition must comply with the 
terms and conditions of USFWS's BO, which specifies that the Coalition 
shall, as appropriate and possible, fund the permanent protection of 
habitat for ESA-listed plant species as compensatory mitigation for the 
loss of occupied habitat for those plants. (BO 64-71.) The Board is 
satisfied that, if implemented, the Coalition's voluntary mitigation 
measures and OEA's additional recommended mitigation measures related 
to biological resources would lessen impacts of construction and 
operation on animal and plant species, including ESA-listed species and 
any potential permanent loss of existing habitat in the rail-line 
footprint. (Final EIS 3.4-63.)
    Any of the Action Alternatives would also cross habitat for the 
greater sage-grouse, a bird species that is managed by BLM and the 
State. (Id. at S-8.) The Action Alternatives would each pass near one 
or more greater sage-grouse leks, which are areas where male grouse 
perform mating displays and where breeding and nesting occur. (Id.) 
Depending on the Action Alternative, several of those leks could 
experience significant increases in noise during construction and rail 
operations, which would disturb the birds and potentially cause them to 
abandon the leks. (Id.) OEA has determined that the Whitmore Park 
Alternative would avoid or minimize impacts on greater sage-grouse that 
would result under the other Action Alternatives because the Whitmore 
Park Alternative would be located the furthest distance away from the 
greatest number of leks and associated summer brood rearing habitat.\5\ 
(Final EIS S-8.) To lessen impacts on the greater sage-grouse, the 
Coalition also volunteered a number of mitigation measures. OEA 
recommends additional mitigation measures in the Final EIS. With both 
OEA's final recommended mitigation, and the Coalition's voluntary 
mitigation, all of which the Board will impose, the EIS properly finds 
that, particularly under the Whitmore Park Alternative, the impacts on 
greater sage-grouse would not be significant.\6\ (Id.)
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    \5\ Reduction in impacts, including those on greater sage-
grouse, is, in fact, one of the primary reasons that the Whitmore 
Park Alternative was developed. (Draft EIS 2-25.)
    \6\ CBD criticizes the data and methodology OEA used in its 
analysis of impacts on the greater sage-grouse, including the 
locations of the baseline ambient noise level measurements, the 
noise levels deemed to cause disturbance of greater sage-grouse, and 
a claimed failure to account for declining population levels. (CBD 
Comment 48-56, Oct. 18, 2021.) The Final EIS thoroughly explains why 
these criticisms are misplaced and how the data and methodologies 
used by OEA in the EIS are supported by the record. (See Final EIS 
3.4-45 to 46, 3.4-48 to 49, 3.4-58 to 62; App. T-184, T-203-05, T-
208-09.) Moreover, determining the best data and methodology upon 
which to rely is a determination that falls well within the agency's 
discretion. Jewell, 825 F.3d at 583-85 (upholding agency's 
discretionary decision not to conduct nocturnal migratory bird 
survey because agency's determination was a discretionary one and 
``founded on reasonable inferences from scientific data'').
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    In its comments on the Final EIS, the State asks that OEA remove 
BIO-MM-20, a Final EIS mitigation measure prohibiting construction 
during greater sage-grouse mating and nesting season. The State 
explains that eliminating the condition will help the Utah Division of 
Wildlife Resources and the Coalition negotiate a final mitigation 
agreement concerning the greater sage-grouse (State Comment 3, Aug. 25, 
2021.) The State later filed this agreement on September 27, 2021, and 
the document provides significant additional mitigation to further 
lessen impacts on the greater sage-grouse. (State Filing 5-6, Sept. 27, 
2021.)
    Among the mitigation in the final mitigation agreement are steps to 
lessen noise during construction and operation, including, to the 
greatest degree practicable, limiting railroad operational noise to no 
more than 10 decibels above the ambient level at the edge of the lek 
during breeding season (March 1 to May 15) and limiting use of horns to 
emergency situations.\7\ (State Filing 6, Sept. 27, 2021.) CBD asks 
that the Board prohibit train operations during greater sage-grouse 
mating season between 6:00 a.m. and 9:00 a.m. (CBD Comment 56, Oct. 18, 
2021.) The Board generally does not restrict how railroads choose to 
conduct their operations. In any event, it is not necessary to consider 
CBD's request as the final mitigation agreement provides more 
protection for the greater sage-grouse than the mitigation

[[Page 72370]]

recommended in the Final EIS, including limits on train noise and hours 
of operation. (Compare Final EIS Sec. 4-7 with State Filing 5-6, Sept. 
27, 2021.) Therefore, the Board will not adopt CBD's request to limit 
operations. However, as discussed below in the Board Mitigation 
section, the Board will grant the State's request to remove BIO-MM-20 
recommended in the Final EIS and instead will impose the measures in 
the final mitigation agreement.
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    \7\ CBD asserts that the mitigation proposed for the greater 
sage-grouse, as well as for numerous other resources and impacts, 
such as threatened and endangered plants, big game, geological 
hazards, revegetation of temporarily disturbed construction areas, 
and recreational resources, is insufficient because it includes 
plans to continue developing specific mitigation actions as the 
project progresses or as based on continuing consultation with other 
agencies and the Ute Indian Tribe. (CBD Comment 72-79, Oct. 18, 
2021.) However, explicit concrete detail and definitive actions not 
subject to further evaluation or refinement are not required in an 
agency's discussion and development of appropriate mitigation. 
Rather, what is required under both NEPA and the NEPA-implementing 
regulations of the Council on Environmental Quality is ``a 
reasonably complete discussion of possible mitigation measures.'' 
Busey, 938 F.2d at 206 (quoting Robertson v. Methow Valley Citizens 
Council, 490 U.S. 332, 352 (1989)); see also Theodore Roosevelt 
Conservation P'ship v. Salazar, 616 F.3d 497, 516-17 (D.C. Cir. 
2010) (upholding an adaptive management plan because NEPA does not 
require ``agencies to make detailed, unchangeable mitigation plans 
for long-term development projects''). The Final EIS's discussion of 
mitigation is reasonably complete and therefore complies with NEPA.
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    As part of the NEPA process for this project and pursuant to 
Section 7 of the ESA, on September 20, 2021, USFWS issued its BO 
evaluating the effects of the project on endangered and threatened 
species. The BO presents USFWS's conclusions regarding likely impacts 
on ESA-listed species and details the data and information on which it 
bases those conclusions. The BO concludes that the proposed project is 
not likely to jeopardize the continued existence of the ESA-listed 
plants or fish or result in the adverse modification of the endangered 
fishes' habitat. (BO 47-49.) CBD makes a generalized claim that the BO 
is flawed and asserts, among other things, that the BO does not rely on 
current data, arbitrarily limits the area of study, and fails to 
consider the effects of oil and gas development that would be spurred 
by the Line on listed plant species. (CBD Comment 6, Oct. 18, 2021.) 
However, the BO is a USFWS document that neither OEA nor the Board have 
the authority to revise. Moreover, CBD previously raised these claims 
of flaws in its comments on OEA's draft Biological Assessment (BA), 
which was appended to the Draft EIS.
    OEA addressed comments on the draft BA in the Final EIS and revised 
the BA in response to comments, as appropriate, before submitting the 
BA to USFWS to begin formal consultation with USFWS. (Final EIS T-203.) 
Thus, CBD's concerns do not lead the Board to conclude that it should 
not rely on the BO.
4. Wildfires
    OEA's analysis also thoroughly addresses the possibility of trains 
sparking wildfires along the routes of the Action Alternatives. OEA 
notes that the Forest Service has created a Wildfire Hazard Potential 
(WHP) map. (Final EIS 3.4-16.) According to the map, approximately 90% 
of the study areas for the Indian Canyon Alternative and Whitmore Park 
Alternative, and approximately 87.4% of the study area for the Wells 
Draw Alternative, are associated with very low, low, or moderate 
wildfire hazard potential. (Id.) The Final EIS further determined that 
the ``very high'' WHP is not present in the study areas for any Action 
Alternative. (Id.) Moreover, the Final EIS concludes that the 
probability of a train-induced forest fire is very low because trains 
only cause a small percentage of fires (id. at Table 3.4-7) and 
improvements in locomotive technology further lessen the risk. (Id. at 
3.4-42.)
    Nonetheless, to further reduce the risk of wildfires, OEA 
recommends mitigation requiring the Coalition to develop and implement 
a wildfire management plan in consultation with appropriate state and 
local agencies, including local fire departments (BIO-MM-7). Further, 
OEA recommends that the plan incorporate specific information about 
operations, equipment, and personnel on the Line that might be of use 
in case a fire occurs and should evaluate and include, as appropriate, 
site-specific techniques for fire prevention and suppression. OEA 
reasonably concludes that, if its recommended mitigation is 
implemented, the impacts of wildfire on vegetation would not be 
significant. (Id. at 3.4-42 to 43.)
    In response to comments received on the Draft EIS, OEA also 
considered impacts from rail operations along existing rail line 
segments downline of the proposed rail line for some biological 
resources, including impacts related to wildfires. (Id. at 3.4-43.) 
Trains originating or terminating on the proposed rail line could be an 
ignition source for wildfires along existing rail lines outside of the 
study area. However, because those existing rail lines are active rail 
lines that have been in operation for many years, construction and 
operation of the Line would not introduce a new ignition source for 
wildfires along the downline segments. (Id.) Moreover, for the reasons 
discussed above, the probability that a train would trigger a wildfire 
is very low, and nearly 90% of the area along the downline segments has 
no WHP or has a very low or low WHP. (Id. at Table 3.4-9.) OEA 
therefore concludes that the downline wildfire impact of the proposed 
rail line would not be significant. (Id. at 3.4-43.) The Board adopts 
OEA's reasonable analysis concerning wildfires and will impose OEA's 
final recommended mitigation regarding a wildfire management plan.
5. Land Use and Recreation
    Most of the area surrounding any of the Action Alternatives is 
rural and sparsely populated. The Indian Canyon Alternative and 
Whitmore Park Alternative both have five residences in their respective 
study areas, and nine residences are located in the study area of the 
Wells Draw Alternative. (Id. at 3.11-4.) However, all of the Action 
Alternatives could significantly affect land uses on public, private, 
or tribal lands. (Id. at S-9.) The Indian Canyon Alternative and 
Whitmore Park Alternative would each cross inventoried roadless areas 
within Ashley National Forest and Tribal trust land within the Ute 
Indian Tribe's reservation. (Id.) The Wells Draw Alternative would 
cross the Lears Canyon Area of Critical Environmental Concern and Lands 
with Wilderness Characteristics on BLM-administered lands. Noise and 
visual impacts would disturb recreational activities on those public 
lands, such as camping, hiking, and hunting, as well as recreational 
activities on private and tribal lands. (Id.)
    As the Final EIS explains, construction and operation of the Line 
would result in unavoidable consequences on land use and recreation, 
including the permanent loss of irrigated cropland and grazing land, 
the severance of properties, and visual and noise disruption of 
recreational activities on public and private lands. OEA concludes that 
these unavoidable impacts on land use and recreation would be locally 
significant because each of the Action Alternatives would permanently 
alter existing land use and the availability and quality of 
recreational activities in the study area, including special 
designation areas on public lands. However, the Coalition has proposed 
voluntary mitigation measures and OEA is recommending additional 
mitigation measures to avoid or minimize impacts on land use and 
recreation. (Id. at 3.11-28.) The Board adopts OEA's reasonable 
analysis of impacts on land use and recreation and will impose all of 
OEA's final recommended mitigation.
6. Vehicle Safety and Delay
    Construction and operation of any of the Action Alternatives would 
introduce new vehicles (such as construction vehicles) on public 
roadways and would require the construction of new at-grade road 
crossings. (Id. at S-10.) Among the three Action Alternatives, the 
Wells Draw Alternative would involve constructing the most at-grade 
road crossings and would result in the greatest potential for vehicle 
accidents and vehicle delays at those new crossings. Because it is the 
longest Action Alternative, construction of the Wells Draw Alternative 
would also result in the greatest vehicle disruption. (Id. at 3.1-20.) 
Because it is the shortest Action Alternative and would require the 
fewest new at-grade road crossings,

[[Page 72371]]

the Indian Canyon Alternative would result in the least impacts on 
vehicle safety and delay. (Id.)
    Any of the Action Alternatives would generate limited additional 
road traffic, primarily associated with employees commuting. (Id. at 
3.1-8.) On some local roads, operations would reduce truck traffic 
because some freight that is currently transported by truck would move 
by rail instead. (Id.)
    To minimize effects on vehicles, OEA recommends that the Board 
adopt the mitigation measures the Coalition has volunteered as well as 
various conditions OEA has crafted itself. The voluntary mitigation 
measures include a requirement for the Coalition to consult with 
appropriate federal, tribal, state, and local transportation agencies 
to determine the final design of the at grade crossing warning devices 
and to follow standard safety designs for at-grade road crossings, 
among other measures (VM 2). Additionally, OEA is recommending a 
mitigation measure that would require the Coalition to consult with 
private landowners and communities affected by new at-grade crossings 
to identify measures to mitigate impacts on emergency access and 
evacuation routes and incorporate the results of this consultation into 
the emergency response plan identified in VM-11 (VSD-MM-6). OEA is also 
recommending additional mitigation measures, (VSD-MM-4, VSD-MM-5), 
requiring the Coalition to support Operation Lifesaver educational 
programs in communities along the Line to help prevent accidents at 
highway/rail grade crossings and to adhere to Federal Highway 
Administration regulations for grade-crossing signage. OEA concludes 
that, if the recommended mitigation measures in the Final EIS are 
implemented, impacts from the new vehicles and at-grade road crossings 
would not significantly affect vehicle safety on public roadways or 
cause significant delay for people traveling on local roads. (Id. at S-
10.) The Board adopts OEA's reasonable analysis of impacts concerning 
vehicle safety and delay and will impose the mitigation recommended in 
the Final EIS.
7. Rail Operations Safety
    Operation of any of the Action Alternatives would involve the risk 
of rail-related accidents, potentially including collisions, 
derailments, or spills. (Id.) Because the Wells Draw Alternative is the 
longest of the Action Alternatives, OEA predicts that it would have the 
highest chance of accidents (0.24 to 0.72 accident per year), followed 
by the Whitmore Park Alternative (0.22 to 0.60 accident per year) and 
the Indian Canyon Alternative (0.20 to 0.56 accident per year). (Id. at 
3.2-7.) Given that approximately one in four accidents involving loaded 
trains would result in a release of some crude oil, OEA predicts that 
rail operations under the Wells Draw Alternative would result in a 
spill approximately once every 11 years (under the high rail traffic 
scenario) to approximately once every 33 years (under the low rail 
traffic scenario). (Id.) Under the Indian Canyon Alternative, a spill 
would be expected approximately once every 14 to 40 years, while OEA 
predicts that the Whitmore Park Alternative would experience a spill 
approximately once every 13 to 36 years, depending on the volume of 
rail traffic.\8\ (Id. at 3.2-7 to 8.)
---------------------------------------------------------------------------

    \8\ CBD criticizes the methodologies the Final EIS uses and 
claims that the Final EIS does not fully disclose its underlying 
data. However, OEA's analysis methods for assessing impacts related 
to rail operations safety are widely used and accepted and are 
consistent with OEA's past practice in railroad construction cases. 
Agencies are entitled to choose among reasonable methodologies, 
Jewell, 825 F.3d at 584-85, and the EIS fully explains its analysis. 
(Final EIS Sec. 3.2, App. T-40-41.)
---------------------------------------------------------------------------

    To minimize the likelihood and consequences of accidents during 
rail operations, the Coalition volunteered mitigation (VM-1, VM-15) to 
ensure that train operators using the Line would comply with the 
requirements of the Hazardous Materials Transportation Act, as 
implemented by the U.S. Department of Transportation, and with Federal 
Railroad Administration safety requirements, including any applicable 
speed limits and train-lighting requirements. In addition, OEA is 
recommending a mitigation measure (ROS-MM-2) that would require the 
Coalition to inspect, as part of its routine rail inspections or at 
least twice annually, both track geometry and local terrain conditions. 
Implementation of this measure would minimize the potential for 
problems with the track or track bed that could lead to accidents (ROS-
MM-2). To ensure that the consequences of a potential accident would be 
minimized, the Coalition also has committed to developing an internal 
Emergency Response Plan for operations on the Line. The plan would 
include a roster of agencies and people to contact for specific types 
of emergencies during rail operations and maintenance activities, 
procedures to be followed by particular rail employees in the event of 
a collision or derailment, emergency routes for vehicles, and the 
location of emergency equipment (VM-8). In addition, the Coalition's 
voluntary mitigation measure (VM-14) and OEA's recommended mitigation 
measure (ROS-MM-1), require the Coalition to immediately notify state 
and local authorities in the event of a release of crude oil and to 
immediately commence cleanup actions in compliance with federal, state, 
and local requirements.
    Because the operation of rail lines inherently involves the 
potential for accidents, some impacts related to rail operations safety 
in the project study area would be unavoidable. OEA concludes, however, 
that these impacts would be minimized and would not be significant if 
the Coalition's voluntary mitigation measures, OEA's recommended 
mitigation measures, and all applicable federal requirements are 
implemented. (Id. at 3.2-8.) The Board adopts OEA's reasonable analysis 
of impacts concerning the safety of rail operations and will impose the 
mitigation recommended in the Final EIS.
8. Air Quality and Greenhouse Gases (GHG)
    OEA explains in the Final EIS that during the rail construction 
phase, construction equipment would emit air pollutants, including 
criteria air pollutants that could contribute to poor air quality and 
GHGs that would contribute to climate change. (Id. at S-12.) Among the 
three Action Alternatives, the Wells Draw Alternative would result in 
the most construction-related air pollution and GHG emissions, followed 
by the Whitmore Park Alternative and the Indian Canyon Alternative. 
Emissions from rail construction activities would be temporary and 
would move continually during the construction period. (Id. at 3.7-38.) 
Construction-related air emissions would not cause concentrations of 
criteria air pollutants to exceed the National Ambient Air Quality 
Standards (NAAQS) \9\ and would not exceed the de minimis thresholds 
for air emissions within the Uinta Basin Ozone Nonattainment Area. (Id. 
at S-12.) With implementation of the Coalition's voluntary mitigation 
measure and OEA's recommended

[[Page 72372]]

mitigation measures, OEA concludes that impacts related to air quality 
and GHG emissions would not be significant. (Id. at 3.7-38.)
---------------------------------------------------------------------------

    \9\ Under the Clean Air Act, USEPA sets air quality standards 
for six principal pollutants which can be harmful to public health 
and the environment. USEPA designates areas where criteria air 
pollutant levels are less than the NAAQS as ``attainment'' areas and 
where pollutant levels exceed the NAAQS as ``nonattainment'' areas. 
USEPA designates former nonattainment areas that have attained the 
NAAQS as ``maintenance'' areas. USEPA has designated the Basin as an 
attainment area for all pollutants except ozone because measured 
concentrations of ozone in the eastern part of the Basin have 
exceeded the NAAQS in winter when the ground is covered by snow and 
stagnant atmospheric conditions are present (ozone levels at other 
times have been less than the NAAQS). (See Final EIS 3.7-8.)
---------------------------------------------------------------------------

    The State responded to the Final EIS, asking that OEA remove AQ-MM-
4, a condition requiring biodiesel fuel to be used during rail 
construction, and AQ-MM-8, a condition requiring the use of renewable 
diesel fuel during rail construction. (State Comment 2, Sept. 27, 
2021.) The State notes that it already has a Utah Clean Diesel Program 
and that OEA's recommended measures would pose a regulatory burden. 
(Id.) The Board disagrees with the State's opinion that requiring the 
Coalition to use alternatives to traditional diesel fuel during 
construction in order to reduce GHG emissions would pose an undue 
regulatory burden. Therefore, the Board will not remove these 
conditions but will further clarify them in the Board Mitigation 
section below. Similarly, the State asks that AQ-MM-9 be removed to 
encourage voluntary ozone-reduction activities in coordination with the 
Utah Department of Environmental Quality. (Id.) That condition 
requires, to the extent practicable, that the Coalition avoid 
conducting project-related construction activities that could result in 
the emission of ozone precursors within the Uinta Basin Ozone 
Nonattainment Area in January and February to minimize emissions of 
ozone. The Board will not remove this condition but, in response to the 
Coalition's concerns, will modify it to explain that if the Coalition 
cannot avoid such construction during January and February, it must 
consult with OEA and the Utah Department of Environmental Quality's Air 
Quality Division to identify and implement other appropriate ozone-
reduction activities for those months.\10\
---------------------------------------------------------------------------

    \10\ CBD states that OEA should use the most recent global 
warming potential (GWP) values in calculating GHG emissions from the 
Line and other projects in the area. (CBD Comment 37, Oct. 18, 
2021.) OEA appropriately used the GWP values from the 
Intergovernmental Panel on Climate Change's (IPCC) Fourth Assessment 
Report from 2007, consistent with international GHG reporting 
standards under the United Nations Framework Convention on Climate 
Change.
---------------------------------------------------------------------------

    OEA also examined projected air emissions from rail operations over 
the Line and finds in the Final EIS that the primary source of 
emissions would be locomotives. (Final EIS 3.7-38.) Because it is the 
longest Action Alternative, the Wells Draw Alternative would result in 
the most emissions of all pollutants, followed by the Whitmore Park 
Alternative and then the Indian Canyon Alternative. (Id.) Based on the 
air quality modeling, OEA concludes that operation of the Line would 
not cause air pollutant concentrations to exceed the NAAQS at any 
location. (Id.) Therefore, OEA finds that operation of the Line would 
not result in significant air quality impacts. (Id. at 3.7-39.)
    OEA recommends mitigation measures related to GHG emissions, but, 
as the Final EIS explains, operation of the Line would still result in 
unavoidable GHG emissions even if these measures are implemented. (Id.) 
\11\ However, GHG emissions from rail operations would represent a 
small percentage (less than one percent) of existing statewide GHG 
emissions in Utah, (Final EIS Table 3.7-1), and would not contribute 
significantly to global climate change, (id. at 3.7-39).
---------------------------------------------------------------------------

    \11\ CBD states that the Board should require the railroad to 
achieve net-zero emissions, including emissions from oil and gas 
production in the Basin and downstream uses of oil transported on 
the rail line. (CBD Comment 44-45, Oct. 18, 2021.) This would be an 
unprecedented mitigation that is not mandated by any federal or 
applicable state regulatory requirement and would likely be 
impossible to implement as proposed.
---------------------------------------------------------------------------

    USEPA's comments on the Final EIS discuss several technical issues 
related to a computer model that OEA used to predict the dispersion of 
air pollutants from locomotive emissions along the Line. Those issues, 
however, also were raised in USEPA's comments on the Draft EIS, and 
OEA, in response, made changes to its analysis in the Final EIS. (Final 
EIS App. M (Air Quality Emissions and Modeling Data); App. T-251.) 
USEPA also expresses concern that OEA's use of a ``flagpole height'' 
(i.e., the height above the ground for which the model predicts the 
concentration of a pollutant) for one of the modeling scenarios 
described in the Final EIS might under-predict air pollutant 
concentrations for that modeling scenario. After receiving USEPA's 
letter, OEA reran the model scenario without using a flagpole height, 
as USEPA had recommended, and found the new results to be identical to 
the results reported in the Final EIS. Therefore, no further air 
quality modeling is necessary to support OEA's conclusions, and the 
Board agrees with OEA's determination that the Line would not 
significantly affect air quality in the project area.\12\
---------------------------------------------------------------------------

    \12\ As part of its further claim that OEA's analysis of climate 
change is insufficient, CBD lists multiple methods that it asserts 
OEA should have used in its analysis of climate change, such as 
social cost of carbon, carbon budgeting, and carbon ``lock-in.'' 
(CBD Comment 37-42, Oct. 18, 2021.) Use of these methodologies, 
however, is not required under NEPA or its implementing regulations, 
and the existence of alternative tools for analysis does not support 
a conclusion that the methodologies used in the EIS were 
insufficient. (Final EIS, App. T-280, T-283, T-430-31); see also 
Jewell, 825 F.3d at 584-85 (agencies are entitled to choose among 
reasonable methodologies).
---------------------------------------------------------------------------

9. Increased Oil and Gas Drilling and Other Cumulative Impacts
    Under NEPA, agencies must analyze direct, indirect, and cumulative 
impacts. 40 CFR 1502.16, 1508.7, 1508.8, 1508.25 (as applicable in 
2019). To do that, OEA reviewed information on relevant past, present, 
and reasonably foreseeable projects and actions that could have impacts 
that coincide in time and location with the potential impacts of the 
proposed rail line. (Final EIS S-13.) OEA identified 27 relevant 
projects, including facility and infrastructure improvements, watershed 
improvements, road improvements, two interstate electric power 
transmission projects, one crude oil processing facility, one 
Programmatic Agreement for cultural resource preservation, projects on 
Forest Service lands, and projects on BLM-administered lands. (Id.) 
Based on the cumulative impacts analysis, OEA concludes that the 
impacts of those projects in combination with the impacts of 
construction and operation of the Line could result in cumulative 
adverse impacts on water resources, biological resources, 
paleontological resources, land use and recreation, visual resources, 
and socioeconomics. (Id.)
    Apart from these 27 projects, OEA's cumulative impacts assessment 
also includes an analysis of potential future oil and gas development 
in the Basin and the potential future construction and operation of new 
rail terminal facilities near Myton and Leland Bench, Utah. (Id.) 
Although OEA expected that the Line would divert to rail transportation 
some oil that in the past has been trucked to terminals outside the 
Basin, OEA assumed, for purposes of the cumulative-impacts analysis, 
that all oil transported on the Line would come from new production. 
(Id. at 3.15-4.) For the analysis of potential cumulative impacts, OEA 
developed two potential scenarios for future oil and gas development in 
the Basin that correspond to the Coalition's estimated range of rail 
traffic. (Id. at 3.15-3.) Under the high oil production scenario, total 
oil production in the Basin would increase by an average of 350,000 
barrels per day and result in 3,330 wells over the first 15 years. (Id. 
at 3.15-4 to 6.)
    As explained in the Final EIS, construction and operation of any of 
the Action Alternatives would, along with oil and gas development 
activities in the Basin, contribute to increased vehicle trips in the 
cumulative impacts study area that could increase the potential for 
vehicle safety and delay impacts. (Id. at 3.15-10.) Under the high oil 
production

[[Page 72373]]

scenario, traffic would increase by a maximum of 6% on the major 
roadways, leaving substantial remaining capacity. (Id. at 3.15-13.) 
Local roads, however, have smaller roadway capacity, and OEA concludes 
that the increase in traffic on local roads used to serve the terminals 
could result in significant cumulative impacts on vehicle delay in the 
absence of road improvements or other mitigation. (Id.)
    Additionally, OEA concludes that vehicle traffic stemming from 
increased oil and gas development would not result in significant 
cumulative impacts on vehicle safety. (Id. at 3.15-15.) OEA notes, 
among other things, that vehicle safety in the study area is generally 
good and that crash rates in Uintah and Duchesne Counties, where most 
oil and gas activity is occurring, are below the national average. 
(Id.)
    As to air quality and climate change, OEA assumed that total air 
pollutant emissions each year would vary according to the number of 
wells constructed in that year. (Id. at 3.15-33.) Once a well is 
producing, emissions occur from operations and maintenance activities, 
which generate truck trips to the well site, and from trucks that 
transport the crude oil to the rail terminals. Emissions also occur 
from venting, flaring, equipment leaks, and engine exhaust from 
equipment located at operating wells. (Id. at 3.15-34.) OEA estimated 
aggregate emissions from potential future oil and gas development based 
on the best available information regarding emissions from oil and gas 
production in the Basin. (Id. at Table 3.15-11.) However, OEA 
determined the specific locations of localized air quality impacts in 
the cumulative impacts study area are not known because there are no 
available data on the characteristics or local site conditions of 
potential future oil and gas development projects. (Id. at 3.15-33.)
    OEA adds that refiners would refine the crude oil transported by 
the Line into various fuels and other products. To the extent that the 
crude oil would be refined into fuels that would be combusted to 
produce energy, emissions from the combustion of the fuels would 
produce GHG emissions that would contribute to global warming and 
climate change. (Id. at 3.15-35.) Downstream end use emissions 
associated with the combustion of the crude oil that could be 
transported on the Line under the high oil production scenario could 
represent up to approximately 0.8% of nationwide GHG emissions and 0.1% 
of global GHG emissions. (Id. at 3.15-36.) However, the actual volumes 
of crude oil that would move over the Line would depend on various 
independent variables and influences, including general domestic and 
global economic conditions, commodity pricing, the strategic and 
capital investment decisions of oil producers, and future market demand 
for crude oil from the Basin, which would be determined by global crude 
oil prices and capacity at oil refineries, among other factors. (Id. at 
3.15-3). Furthermore, to the extent that crude oil transported on the 
Line could be refined into products other than fuel and, to the extent 
that the fuels produced from crude oil transported on the Line could 
displace other fuels from the market, GHG emissions from downstream end 
uses would be lower, and potentially significantly lower, than these 
estimates.
    OEA also reasonably explains that benefits would result from the 
increase in annual oil production. Notably, increased production would 
generate long-term employment, labor income, and spending on goods and 
services in the cumulative impacts study area.\13\ Increased production 
would also generate state and local revenue through taxes. 
Additionally, new wells drilled on state land or accessing state 
minerals would generate additional revenue for Utah through royalties 
and lease payments. (Id. at 3.15-51.)
---------------------------------------------------------------------------

    \13\ Constructing and operating any of the Action Alternatives 
would also generate direct, indirect, and induced employment, 
including for tribal members, and create state and local revenue. 
(Id. at 3.13-26 to 33.)
---------------------------------------------------------------------------

    CBD asserts that the Final EIS is insufficient because it fails to 
treat a potential future increase in oil and gas production in the 
Basin and downstream emissions from the end uses of oil transported on 
the Line as indirect impacts of the project. And, as a result, CBD 
argues that the Final EIS does not sufficiently disclose the impacts of 
increased oil and gas production in the Basin that could occur as a 
result of the Line. (CBD Comment 8-14, Oct. 18, 2021.)
    Indirect effects are reasonably foreseeable effects that are caused 
by the action but that are later in time or farther removed in 
distance. 40 CFR 1508.8. An indirect effect is more than something that 
could not occur ``but for'' the federal action at issue and, instead, 
to be an indirect effect of an action under NEPA requires a reasonably 
close causal connection. Dep't of Transp. v. Pub. Citizen, 541 U.S. 
752, 767-68, 770-72 (2004); see also Metro. Edison Co. v. People 
Against Nuclear Energy, 460 U.S. 766, 774 (1983). Thus, when an agency 
``has no ability to prevent a certain effect due to its limited 
statutory authority over the relevant actions, the agency cannot be 
considered a legally relevant `cause' of the effect'' for NEPA 
purposes. Dep't of Transp. v. Pub. Citizen, 541 U.S. at 770. Here, the 
Board has no authority or jurisdiction over development of oil and gas 
in the Basin nor any authority to control or mitigate the impacts of 
any such development. Accordingly, contrary to CBD's argument, the fact 
that this oil and gas development likely would not occur ``but for'' 
the Board granting authority to construct and operate the Line does not 
make this an indirect effect. OEA properly declined to treat oil and 
gas development as an indirect effect.
    This does not mean that OEA did not consider effects of potential 
oil and gas development in the Basin. Rather, OEA determined that 
impacts from potential oil and gas development should be considered as 
a cumulative impact and conducted a full and appropriate analysis of 
those impacts. (Final EIS Sec. 3.15.4.1.) Cumulative impacts are those 
which result from the incremental impact of the action when added to 
other past, present, and reasonably foreseeable future actions 
regardless of what agency or person undertakes such other actions. 40 
CFR 1508.7. Oil and gas development that may occur following 
authorization of the Line would entail many separate and independent 
projects that have not yet been proposed or planned and that could 
occur on private, state, tribal, or federal land and could range in 
scale from a single vertical oil well to a large lease involving many 
horizontal wells.\14\ As a result, the Board agrees with OEA that this 
development was properly considered as a cumulative impact.\15\
---------------------------------------------------------------------------

    \14\ Furthermore, regardless of whether the EIS labeled the 
impacts from oil and gas development in the Basin as indirect or 
cumulative impacts, OEA conducted a full analysis of those effects. 
The impacts and the analysis of those impacts would be the same no 
matter which label is used.
    \15\ CBD levels several additional criticisms of OEA's analysis 
of potential oil and gas development in the Basin, including claims 
of inconsistent statements and conclusions. But the Board will not 
directly address those here because a fair reading of the Final EIS 
shows that they are based on mischaracterizations of the statements 
in the Final EIS that CBD relies on and the thorough analysis OEA 
conducted. (See CBD Comment 10-13, Oct. 18, 2021; Final EIS Sec. 
3.15.4.1.)
---------------------------------------------------------------------------

    CBD asserts that OEA erred in relying, in part, on the results of 
an EIS prepared by the BLM for the Monument Butte Oil and Gas 
Development Project to predict potential air emissions that could 
result from future oil and gas production in the Basin as part of OEA's 
cumulative impacts analysis.\16\ (CBD Comment 3-4,

[[Page 72374]]

26-36, Oct. 18, 2021.) The Monument Butte EIS was a study of a proposed 
oil development project in the Basin and OEA relied, in part, on the 
results of that study to make conclusions about the cumulative air 
quality impacts of potential future oil and gas production in the Basin 
when considered in combination with the potential air quality impacts 
that could result from construction and operation of the Line. (Final 
EIS 3.15-32.) OEA's use of the results of the Monument Butte EIS in the 
cumulative impacts analysis was reasonable and appropriate because the 
Monument Butte EIS provides the best available information regarding 
potential air emissions from oil and gas production projects in the 
Basin. (Final EIS App. T-266, T-401-407.)
---------------------------------------------------------------------------

    \16\ CBD also asserts that the EIS fails to properly account for 
Clean Air Act requirements for Uinta Basin as a nonattainment area. 
(CBD Comment 33-35, Oct. 18, 2021.) The record contradicts CBD's 
claim that the EIS failed to consider those impacts or 
comprehensively explain how it came to conclusions regarding the 
same. (See Final EIS Sec. 3.7.1.1; 3.15.5.7; App. M; App. T-268-69, 
T-271-76, T-401-02.)
---------------------------------------------------------------------------

10. Downline Impacts
    As part of its analysis of impacts, OEA examined downline impacts 
of the project, i.e., reasonably foreseeable impacts that could occur 
outside the project area as a result of construction and/or operation 
of trains using the Line. (See Final EIS, Sec. 3.1 (Vehicle Safety and 
Delay), Sec. 3.2 (Rail Operations Safety), Sec. 3.6 (Noise and 
Vibration), Sec. 3.7 (Air Quality and Greenhouse Gases).) The Board's 
regulations at 49 CFR 1105.7(e)(11)(v) governing review of potential 
downline impacts refer to the general thresholds for environmental 
review concerning air quality and noise. 49 CFR 1105.7(e)(5); 
1105.7(e)(6). Consistent with prior practice and based on its 
experience, OEA determined that these regulatory thresholds should also 
apply to the analysis of downline impacts on freight rail safety and 
grade-crossing safety and delay in the EIS here. See Tongue River 
R.R.--Constr. & Operation--in Custer, Powder River, & Rosebud Cntys., 
Mont., FD 30186, Draft EIS at Sec.17.1 (STB served Apr. 17, 2015). That 
approach is reasonable, as the rationale for finding that minimal 
increases in train traffic on existing rail lines over which trains 
already operate are unlikely to cause significant impacts on air 
quality and, furthermore, that noise applies equally to potential 
effects on rail safety and grade-crossing safety and delay.
    There are many different potential destinations for Uinta Basin oil 
transported by train and even more practical routes available to reach 
those destinations. Because it is not possible to identify specific 
refineries that would receive shipments of Uinta crude oil, in order to 
assess downline impacts, OEA first identified potential refinery 
destinations for Uinta crude oil using a regional approach. (See Final 
EIS App. C.) After those regions were identified, OEA then considered 
potential routing to those destinations and where the estimated 
project-related rail traffic would exceed the Board's regulatory 
thresholds. (Id.) Using the predicted number and length of trains, 
OEA's analysis of likely regional destinations, and the projected 
reasonably foreseeable routes for this traffic, OEA identified a 
downline impact study area eastward from Kyune to the northern, 
southern, and eastern edges of the Denver Metro/North Front Range that 
met the Board's regulatory thresholds for analysis and assessed impacts 
in that downline study area. (Id.) Using its analysis of predicted 
destinations, OEA further concluded that rail traffic outside of the 
downline study area would be dispersed and that no individual rail 
lines outside of the downline study area can reasonably be expected to 
experience an increase in rail traffic in excess of OEA's analysis 
thresholds. Therefore, the Final EIS concludes that an analysis of 
downline impacts on existing rail lines outside of the downline study 
area would not be appropriate.
    CBD objects to both the application of the Board's regulatory 
thresholds to rail safety and delay, environmental justice, and GHG 
emissions from refining Uinta crude oil, as well as the validity of the 
thresholds themselves. According to CBD, the Board's thresholds prevent 
analysis of reasonably foreseeable impacts. (CBD Comment 14-18, Oct. 
18, 2021.) As noted above, the regulatory thresholds place reasonable 
limits on OEA's assessment of certain impacts because minimal increases 
in train traffic on existing rail lines already in use are not likely 
to result in significant additional impacts required to be analyzed 
under NEPA. And indeed, CBD points to nothing that would indicate that 
the downline impacts here would be significant but instead relies on 
speculation. (Id.)
    NEPA does not require agencies to examine every possibility that an 
impact could occur no matter how speculative, nor does it require 
agencies to analyze the impacts of effects over which it has no control 
because evaluation of those impacts would not inform the agency's 
decision-making. See Dep't of Transp. v. Pub. Citizen, 541 U.S. at 768-
70; Jewell, 825 F.3d at 583 (agencies are entitled to make reasonable 
inferences based upon the data); Andrus, 619 F.2d at 1375-76 
(discussion of environmental effects must be governed by ``rule of 
reason'' and NEPA does not require every action to be discussed in 
exhaustive detail). Because the Board cannot regulate downline train 
operations by other carriers as part of this proceeding, it cannot 
regulate or mitigate impacts caused by those downline operations. The 
type of analysis that CBD claims is necessary is therefore neither 
required nor useful. As a result, OEA's application of the thresholds 
here was appropriate, reasonable, and consistent with NEPA and the 
regional analysis of downline rail operations complies with NEPA.
    CBD also asserts that OEA should have included in its downline 
analysis impacts from operation of trains carrying Uinta crude oil on 
the Tennessee Pass Line. (CBD Comment 18-19, Oct. 18, 2021.) The 
Tennessee Pass Line is a line of railroad in Colorado that is owned by 
UP and has been out of service for many years. See Colo., Midland & 
Pac. Ry.--Lease & Operation Exemption Containing Interchange 
Commitment--Union Pac. R.R., FD 36471, slip op. at 1, 4-5 (STB served 
Mar. 25, 2021). As discussed in the Board's September 30 Decision, even 
if it were in service, the Tennessee Pass Line would be unlikely to 
carry Uinta crude oil. September 30 Decision, FD 36284, slip op. at 6. 
Among other things, the Board noted that the modeling program used by 
OEA to examine the patterns for traffic coming off the Line did not 
forecast any traffic travelling over the Tennessee Pass Line. (Final 
EIS, App. C, C-4, C-6.) Instead, OEA projects that ``all rail traffic 
moving from Kyune to destinations in the east would travel over the 
existing rail line between Kyune and Denver, Colorado.'' (Id. at C-4.) 
\17\ Thus, the Board agrees with OEA that analysis of impacts from use 
of the Tennessee Pass Line is not reasonably foreseeable and, 
therefore, not appropriate for consideration in the EIS.
---------------------------------------------------------------------------

    \17\ The Coalition provided additional support for OEA's 
independent analysis by submitting a verified statement from Rio 
Grande Pacific Corporation, the proposed operator of the Line, 
stating that it has no intention of routing trains originating on 
the Line over the Tennessee Pass Line and that using the Tennessee 
Pass Line to transport crude oil would be impractical and the 
highest-cost option. (Coal. Reply, V.S. Hemphill 2, Jan. 26, 2021.)
---------------------------------------------------------------------------

11. Tribal Concerns
    OEA coordinated and consulted with tribes in accordance with NEPA, 
Executive Order 13175, and Section 106 of the National Historic 
Preservation Act (NHPA). (Final EIS 5-7.) Through government-to-
government consultation

[[Page 72375]]

with the Ute Indian Tribe,\18\ OEA identified impacts related to 
vehicle safety and delay, rail operations safety, biological resources, 
air emissions, and cultural resources as areas of concern for the 
tribe. (Id. at S-9.) To mitigate the impacts, OEA has crafted 
mitigation measures that require the Coalition to work with the Ute 
Indian Tribe to address issues of tribal concern. In particular, OEA 
worked with the Ute Indian Tribe and other Section 106 consulting 
parties to develop a Programmatic Agreement, which has been executed, 
that sets forth how cultural resources would be protected if the Board 
were to authorize the Line. (Id. at S-9 to 10.) In addition, OEA has 
identified impacts on the Pariette cactus and the Uinta Basin hookless 
cactus as disproportionately high and adverse impacts on an 
environmental justice community. Because those species are culturally 
important to the Ute Indian Tribe, OEA is recommending mitigation 
requiring the Coalition to consult with the Ute Indian Tribe regarding 
impacts on those special status plant species and to abide by the 
tribe's requirements for addressing the impacts. (Id. at S-10.)
---------------------------------------------------------------------------

    \18\ As noted earlier, the Ute Indian Tribe filed a letter on 
October 1, 2021, in support of the project.
---------------------------------------------------------------------------

NHPA

    In accordance with Section 106 of NHPA, OEA surveyed the project 
area, identified historic properties, and consulted with interested 
parties regarding the potential effects of the project on these 
properties. Construction of the proposed rail line would physically 
alter and potentially destroy cultural resources located within the 
below-ground portion of the area of potential effects (APE) (the 
project footprint plus a 50-foot buffer). (Id. at 3.9-13.) The APE for 
the Indian Canyon Alternative includes 16 known historic properties, 
the APE for the Wells Draw Alternative includes 19 known historic 
properties, and the APE for the Whitmore Park Alternative includes 16 
known historic properties. (Id. at 3.9-13 to 16.) Some of these 
resources could be altered or destroyed during construction of the 
Line. (Id.)
    Because the APEs have not been surveyed comprehensively, OEA 
concludes that additional cultural resources, such as previously 
unidentified archeological sites, are likely to be present in the APEs 
and could be impacted by construction and operation of the proposed 
rail line. (Id. at 3.9-17.) To ensure that any adverse effects on 
historic and cultural resources are appropriately avoided, minimized, 
or mitigated, OEA recommends that the Coalition be required to comply 
with the terms of the executed Programmatic Agreement discussed above. 
(VM-42, VM-43). The Board adopts OEA's thorough and reasonable analysis 
under NHPA and will impose the recommended mitigation requiring the 
Coalition to comply with the Programmatic Agreement.

Environmentally Preferable Alternative

    Based on OEA's analysis and consultation with appropriate 
government agencies, the Ute Indian Tribe, other interested 
stakeholders, and the public, OEA concludes that, among the three 
Action Alternatives, the Whitmore Park Alternative would result in the 
fewest significant impacts on the environment. (Final EIS S-13.) In 
particular, the Whitmore Park Alternative would permanently affect the 
smallest area of water resources, including wetlands and perennial 
streams; would minimize impacts on greater sage-grouse leks and 
associated summer brood rearing habitat, as discussed above; and avoid 
impacts on subdivided residential areas. (Id.)
    The Final EIS explains that, compared to the Wells Draw 
Alternative, the Whitmore Park Alternative would permanently and 
temporarily affect a smaller area of wetlands and intermittent streams, 
as well as a smaller number of springs. (Id.) It would avoid impacts on 
special use areas on BLM-administered lands, including Areas of 
Critical Environmental Concern, Lands with Wilderness Characteristics, 
and areas classified by BLM as sensitive to visual impacts. The 
Whitmore Park Alternative also would affect a smaller area of suitable 
habitat for the Pariette cactus and Uinta Basin hookless cactus than 
the Wells Draw Alternative and would avoid potential impacts on 
moderately suitable habitat for the threatened Mexican spotted owl and 
a smaller area of big game habitat. (Id.) In addition, it would result 
in fewer total emissions of criteria air pollutants and GHGs during 
construction and rail operations; would cross a smaller area of land 
that may be prone to landslides; would displace fewer residences; would 
involve a lower risk for accidents at at-grade road crossings; and 
would cross a smaller area with high potential for wildfires. (Id.)
    Compared to the Indian Canyon Alternative, the Whitmore Park 
Alternative would permanently and temporarily affect a smaller area of 
wetlands, a smaller area of riparian habitat, and a smaller number of 
springs and would also require fewer stream realignments. (Id. at S-
14.) It would avoid noise impacts on residences during rail operations, 
as well as visual and other impacts on residential areas in the Argyle 
Canyon and Duchesne Mini-Ranches areas of Duchesne County. (Id.) The 
Whitmore Park Alternative would generate more employment, labor income, 
and local and state tax revenue during construction than the Indian 
Canyon Alternative and would cross a smaller area of geological units 
that may be prone to landslides and a smaller area of land with high 
wildfire hazard potential. (Id.) For these reasons, OEA recommends that 
the Board authorize the Whitmore Park Alternative if it grants final 
approval to the Line. (Id.) For the reasons discussed above and in the 
Draft and Final EIS, the Whitmore Park Alternative is the alternative 
the Board approves.

Board Conclusions on Environmental Analysis

    Upon consideration of the Draft EIS, the environmental comments 
submitted to the Board, and the Final EIS, the Board is satisfied that 
the Draft and Final EIS have taken the requisite ``hard look'' at the 
potential environmental impacts associated with this transaction. The 
Draft and Final EIS adequately identify and assess the environmental 
impacts discovered during the course of the environmental review, 
carefully consider a reasonable range of alternatives (including a No 
Action Alternative), and include extensive environmental mitigation to 
avoid or minimize potential environmental impacts. Accordingly, the 
Board adopts the Draft and Final EIS and all of OEA's analysis and 
conclusions, including those not specifically addressed here. The Board 
finds that OEA's recommended Environmentally Preferable Alternative 
(Whitmore Park Alternative) best satisfies the purpose and need for the 
Line, while minimizing potential impacts to residential areas, water 
resources, and greater sage-grouse leks and associated summer brood 
rearing habitat.

Board Mitigation

    The Draft and Final EIS demonstrate that construction of the 
Whitmore Park Alternative would result in impacts on the environment, 
including impacts not discussed in this decision. However, the 
mitigation measures voluntarily proposed by the Coalition along with 
the mitigation developed by OEA during its environmental review should 
minimize the potential environmental effects of the transaction to the 
extent practicable. The Board will therefore impose the voluntary 
mitigation measures developed by the Coalition

[[Page 72376]]

and, except as discussed above, all of the additional mitigation 
measures recommended by OEA. In addition to the impacts discussed 
above, the mitigation measures appropriately address a number of other 
environmental issues assessed in the Draft and Final EIS, including 
impacts concerning water resources, wayside noise, and hazardous 
materials. The Board will also adopt the changes to mitigation measures 
concerning air quality and the greater sage-grouse following issuance 
of the Final EIS, which are discussed above, as well as modify a 
condition in the Final EIS concerning big game migration routes, BIO-
MM-19.\19\ The Coalition will also be required to comply with the 
executed Programmatic Agreement developed to address potential adverse 
impacts to cultural resources.
---------------------------------------------------------------------------

    \19\ Specifically, in light of concerns by CBD, (see CBD Comment 
58-62, Oct. 18, 2021), the Board will amend the condition to require 
the big game corridor crossing plan to evaluate the use of big game 
overpasses or underpasses (including standards for design), wildlife 
friendly fencing, reduced train speeds in high-risk areas, use of 
sound signaling, and barriers in collision hotspots.
---------------------------------------------------------------------------

Weighing Environmental Impacts and Transportation Merits and 
Considering Appropriateness of an Exemption

    The Board recognizes that, as with most other rail construction 
projects, the construction and operation of this Line is likely to 
produce unavoidable environmental impacts. But the Board also finds 
that the construction and operation of the Environmentally Preferred 
Whitmore Park Alternative, with the extensive mitigation conditions 
imposed, will minimize those impacts to the extent practicable. And the 
construction and operation of this Line will have substantial 
transportation and economic benefits. As noted above, the Line will 
bring rail service to an area of Utah that does not currently have 
service, provide shippers that must now rely on trucks another shipping 
option, and create jobs. (See, e.g., Congressional Letter 1, June 28, 
2021.) Rail service will eliminate longstanding transportation 
constraints. The availability of a more cost-effective rail 
transportation option could also support the diversification of local 
economies in the Basin, which could support additional employment and 
expand the regional economy. (See Governor Cox & Lieutenant Governor 
Henderson Letter 1, Aug. 30, 2021.) Moreover, the Board notes the Ute 
Indian Tribe's support of the project and the benefits that the Tribe 
has stated that it will provide. While the No-Action Alternative would 
avoid the potential environmental impacts of the rail project, it would 
not bring these benefits to the Basin or meet the goals of the counties 
making up the Coalition or the Ute Indian Tribe. The environmental 
impacts identified in the Draft and Final EIS have been sufficiently 
mitigated so that they do not outweigh the Line's transportation 
benefits. Moreover, as explained in the Board's January 5 Decision 
(slip op. at 5-6), the Board can grant the Coalition's request for 
authority even if all issues involving financing are not yet resolved 
because the grant of authority is permissive, not mandatory, and the 
ultimate decision on whether to proceed will be in the hands of the 
Coalition and the marketplace, not the Board.\20\ A grant of authority 
permits a new line to be built if the necessary financing is obtained. 
Without moving forward with the process needed to obtain Board 
authority, however, no new rail lines could be built, regardless of how 
viable the projects might be.
---------------------------------------------------------------------------

    \20\ The Board notes that the Coalition has stated its ``plans 
for financing the project through a private partner'' and that ``the 
project will be privately financed.'' (Coal. Reply 12-13, July 21, 
2020.)
---------------------------------------------------------------------------

    Concerning the appropriateness of an exemption, one would further 
the RTP goals at section 10101 (2), (4), (5), and (7). As noted above, 
however, Argyle claims that the RTP goals at section 10101(8), 
concerning public safety, and section 10101(11), concerning safe 
working conditions, would be undermined by the project. (Argyle Reply 
9, July 7, 2020.) Argyle asserts that there will be a substantial 
increase in local truck traffic if oil production were to increase to 
the extent claimed by the Coalition. (Id. at 10.) Argyle also claims, 
among other things, that rail activities could trigger forest fires and 
notes that Argyle Canyon was heavily damaged by a fire in 2012. (Id.) 
Similarly, CBD argues that the project's many significant environmental 
impacts, the undefined nature of certain mitigation measures proposed 
in the EIS and BO, and questions about the project's financial 
viability require more extensive proceedings to determine whether the 
project is financially able to avoid and/or mitigate the project's 
environmental effects and operate without detriment to the public 
health and safety. (CBD Comment 6, Oct. 18, 2021.)
    These concerns do not warrant denying the petition for exemption. 
The Board properly considered the statutory standards that govern 
exemption requests in the January 5 Decision and the September 30 
Decision. The record developed in this proceeding is substantial, and 
additional regulatory processes would not likely add to the substance 
of what has been presented. OEA has demonstrated in its Final EIS that 
there only would be a small risk of forest fire based on various 
factors such as the geography crossed by the Whitmore Park Alternative 
and that any harm would be lessened by the extensive mitigation 
measures the Board imposes here. Similarly, truck traffic would not 
significantly increase on major roads as a result of construction and 
operation of the Line and problems on local roads would be lessened by 
the mitigation measures the Board will impose. As for CBD's concerns 
regarding the mitigation, these were previously raised in CBD's 
comments on the Draft EIS and were appropriately addressed by OEA in 
the Final EIS. Further, the Board is modifying a number of the 
mitigation measures that CBD and the State identified as unclear or 
inadequately defined. The Board need not revisit the financial concerns 
CBD raises as the Board already discussed those issues in its January 5 
Decision.
    In sum, the transportation merits of the project outweigh the 
environmental impacts and the Coalition has demonstrated that an 
exemption from section 10901 is appropriate. There also is a 
presumption that rail construction projects are in the public interest. 
Section 10901(c) provides that the Board ``shall issue a certificate 
[authorizing construction activities] [. . .] unless the Board finds 
that such activities are inconsistent with the public convenience and 
necessity.'' Recognizing the presumption, the Board finds that this 
project should be approved.

Conclusions

    The Board is satisfied that the Whitmore Park Alternative will meet 
the transportation goals of the project. Accordingly, the Board 
reaffirms here the analysis it discussed in the January 5 Decision.
    After weighing the transportation merits and environmental impacts 
and considering the entire record, the Board finds that the Coalition's 
petition for exemption under section 10502 from the prior approval 
requirements of section 10901 should be granted. The Board is granting 
final approval of the construction and operation of the Environmentally 
Preferable Alternative--Whitmore Park Alternative--subject to 
compliance with the environmental mitigation measures listed in 
Appendix B of this decision.
    It is ordered:
    1. The filings commenting on the Final EIS are accepted into the 
record.

[[Page 72377]]

    2. Under 49 U.S.C. 10502, the Board exempts the Coalition's 
construction and operation of the above-described rail line from the 
prior approval requirements of 49 U.S.C. 10901.
    3. The Board adopts the environmental mitigation measures set forth 
in Appendix B to this decision and imposes them as conditions to the 
exemption granted here.
    4. Notice will be published in the Federal Register.
    5. Petitions for reconsideration must be filed by January 4, 2022.
    6. This decision is effective on January 14, 2022.
    Decided: December 15, 2021.
    By the Board, Board Members Begeman, Fuchs, Oberman, Primus, and 
Schultz. Board Member Oberman dissented with a separate expression

Board Member Oberman, Dissenting

    I respectfully dissent from today's decision (Today's Decision) 
granting the Coalition's petition for exemption. The project's 
environmental impacts outweigh its transportation merits, and I would 
accordingly deny the Coalition authority to construct the Line.
    As an initial matter, as I explained in my dissent to the January 5 
Decision, the Board should not have utilized a so-called two-step 
process and granted preliminary approval of the transportation merits 
before completion of the environmental review. In addition, the Board 
should have required the Coalition to submit additional information 
before concluding that an application under 49 U.S.C. 10901 was not 
necessary. I raised grave concerns then regarding the Line's financial 
viability given the increasingly uncertain global market for crude oil, 
and the likelihood that it would be the public--and not private 
investors--who would bear the cost of constructing an ultimately 
unprofitable rail project. These concerns have grown over the last 
year, as the world economy has accelerated its transition away from use 
of the internal combustion engine and corresponding need for crude oil. 
Ever increasing doubt about the future market for oil undermines the 
project's transportation merits and counsels against an exemption.
    But now that the environmental review has been completed, I have 
concluded not only that the financial viability of the Line is in 
serious doubt but also that the Line's environmental impacts 
significantly outweigh its transportation merits. In my view, it should 
be underscored that the Board has the power to deny construction 
approval based on weighing all of the environmental impacts that will 
arise from oil and gas development in the Basin, and the Board should 
consider those impacts as the reasonably foreseeable, indirect effects 
that they are, especially since the ``entire purpose'' of this Line is 
to stimulate and support oil production in the Basin. Assessing these 
impacts solely within a cumulative impact analysis, as Today's Decision 
does, badly understates their significance, and in particular the 
significance of downstream greenhouse gas emissions that will result 
from the combustion of oil moved over the Line. The critical question 
presented in this proceeding is whether the Line would serve the public 
interest given its centrality to oil development in the Basin and the 
broader and dire global warming crisis, as well as the very serious, 
significant, and unavoidable environmental impacts that Today's 
Decision does in fact attribute to the project.
    Absent some particularized national need for increased oil from the 
Basin, of which there is none, I cannot support construction of the 
Line.

Transportation Merits

    As noted in my dissent to the January 5 Decision, it is beyond 
controversy that the project's financial success depends entirely upon 
increased oil production in the Uinta Basin. January 5 Decision, FD 
36284, slip op. at 14 (Board Member Oberman dissenting). But yet, 
questions abound regarding the ``future global demand for oil,'' as 
well as the ``quantity of oil reserves in the Basin, the demand for the 
specific type of oil found there, and whether there are sufficient 
proven reserves to provide long term business for the proposed 
railroad.'' Id. at 16, 17.
    Although the price of oil has rebounded since the January 5 
Decision, it remains volatile. Moreover, since that time, government 
and business leaders have advanced new commitments and policies to 
achieve carbon neutrality in the coming years, with diminished use of 
the internal combustion engine--and resulting oil consumption--playing 
a significant role. At the federal level, the United States has 
rejoined the Paris Agreement and the Biden Administration has set a 
goal of achieving net-zero emissions economy-wide by 2050. See Tackling 
the Climate Crisis at Home and Abroad, Exec. Order No. 14008, 86 FR 
7619 (Jan. 27, 2021). The President has even more recently called for 
50% of all new passenger cars and light trucks sold in the United 
States to be zero-emission by 2030 and, to help achieve this goal, has 
directed the Environmental Protection Agency and Department of 
Transportation to develop new emission and fuel efficiency 
standards.\1\ Strengthening Am. Leadership in Clean Cars & Trucks, 
Exec. Order 14037, 86 FR 43583 (Aug. 5, 2021). Critically, Congress 
recently passed the Infrastructure Investment and Jobs Act, which, 
among other things, provides $7.5 billion for electric vehicle charging 
stations, $5.75 billion for the replacement of public transit vehicles 
with zero emission vehicles, and establishes a carbon reduction program 
at the Department of Transportation. See Public Law 117-58 (2021).\2\
---------------------------------------------------------------------------

    \1\ See also Executive Order on Catalyzing Clean Energy 
Industries and Jobs through Federal Sustainability, Exec. Order 
14057, 86 FR 70935 (Dec. 8, 2021) (directing executive agencies to 
achieve 100% zero-emission vehicle acquisitions by 2035).
    \2\ On November 19, 2021, the House of Representatives passed 
the Build Back Better Act, which among other things, raises the 
electric vehicle tax credit to $12,500 and provides tens of billions 
of dollars for electric vehicle infrastructure and the replacement 
of heavy-duty vehicles with zero emissions vehicles. See H.R. 5376, 
117th Cong. (2021).
---------------------------------------------------------------------------

    States as well have passed new legislation meant to curb oil 
consumption and have continued to award grants for, or have otherwise 
initiated, green infrastructure projects, including to support vehicle 
electrification. See, e.g., Act of Mar. 18, 2021, ch. 263, 2021 Va. 
Legis. Serv. (H.B. 1965) (West) (codified at Va. Code Ann. section 
10.1-1307 & 10.1-1307.04) (establishing low-emissions and zero-
emissions vehicle program for motor vehicles, consistent with 
California standards, with a model year of 2025 or later); Washington 
Climate Commitment Act, ch. 316, 2021 Wash. Sess. Laws 2606 (creating, 
among other things, greenhouse gas cap-and-invest program that includes 
declining limits on major emission sources); Press Release, Cal. Energy 
Comm'n, California Announces $17.5 million for Public Electric Vehicle 
Charging in 13 Rural Counties (May 17, 2021) (advancing September 2020 
executive order requiring sales of all new passenger vehicles in 
California to be zero-emission by 2035).\3\ Such action has not been 
limited to the United States. For example, the European Commission in 
July proposed expanding the EU's emissions trading scheme, 
strengthening vehicle emissions standards, including by

[[Page 72378]]

requiring that all new cars be zero emission by 2035, and introducing a 
carbon price on imports. Press Release, European Commission, European 
Green Deal: Commission Proposes Transformation of EU Economy and 
Society to Meet Climate Ambitions (July 16, 2021).\4\ And, on May 26, 
2021, a Dutch court stunningly ordered Royal Dutch Shell (Shell) to 
reduce its carbon dioxide emissions, arising both from its business 
operations and sold energy-carrying products, by net 45% by the end of 
2030, relative to 2019 levels. Rb. Hague 26 mei 2021, 
ECLI:NL:RBDHA:2021:5337 (Vereniging Milieudefensie/Royal Dutch Shell 
PLC).\5\
---------------------------------------------------------------------------

    \3\ Available at: https://www.energy.ca.gov/newsroom/news-releases. This builds on the California Public Utilities 
Commission's (CPUC) prior approval of a $437 million electric 
vehicle charging program to be implemented by Southern California 
Edison. See Press Release, CPUC, CPUC Expands SCE Charge Ready 2 
Transportation Electrification Program (Aug. 27, 2020), https://docs.cpuc.ca.gov/PublishedDocs/Published/G000/M345/K822/345822512.PDF.
    \4\ Available at: https://ec.europa.eu/commission/presscorner/detail/en/IP_21_3541.
    \5\ Available at: https://uitspraken.rechtspraak.nl/inziendocument?id=ECLI:NL:RBDHA:2021:5339. Since then, Shell has 
sold its assets in the Permian Basin and pulled out of a 
controversial plan to develop a new oil field near the Shetland 
Islands. See Press Release, Shell, Shell Completes Sale of Permian 
Business to ConocoPhillips (Dec. 1, 2021), https://www.shell.com/media/news-and-media-releases.html; Danica Kirka, Shell Pulls Out of 
Controversial Cambo Project in Scotland, Associated Press, December 
3, 2021, https://apnews.com/article/business-europe-environment-economy-scotland-ef91aa323b36cb3d8f3d7dcf9b616a36.
---------------------------------------------------------------------------

    In response to these trends, and ominously for the future of oil 
proposed to be extracted from the Basin and the Line's fiscal 
foundation, car manufacturers are increasingly committing to the sale 
of electric vehicles in the coming years. Immediately following 
President Biden's executive order on clean cars and trucks, Ford, 
General Motors and Stellantis jointly announced their intention to 
achieve sales of 40-50% of annual U.S. volumes of electric vehicles by 
2030. Press Release, General Motors, Ford, GM and Stellantis Joint 
Statement of Electric Vehicle Annual Sales (Aug. 5, 2021).\6\ 
Volkswagen has set a similar global sales target for 2030, while by 
that date Ford has separately committed to sell only electric passenger 
vehicles in Europe. Press Release, Volkswagen Group, NEW AUTO: 
Volkswagen Group Set to Unleash Value in Battery-Electric Autonomous 
Mobility World (July 13, 2021); \7\ Press Release, Ford Motor Co., Ford 
Europe Goes All-In on EVs on Road to Sustainable Profitability (Feb. 
17, 2021).\8\
---------------------------------------------------------------------------

    \6\ Available at: https://media.gm.com.
    \7\ Available at: https://www.volkswagen-newsroom.com/en/press-releases.
    \8\ Available at: https://media.ford.com/content/fordmedia/feu/en/news.html.
---------------------------------------------------------------------------

    Other automakers have announced time horizons for transitioning to 
fully electrified vehicle fleets, including as early as 2025. See, 
e.g., Press Release, Volvo Car USA, Volvo Cars to be Fully Electric by 
2030 (Mar. 2, 2021); \9\ Press Release, Tata Motors, Jaguar Land Rover 
Reimagines the Future of Modern Luxury by Design (Feb. 15, 2021) 
(announcing that Jaguar vehicles will be ``all-electric'' by 2025); 
\10\ see also Press Release, Nissan Motor Corp., Nissan Unveils 
Ambition 2030 Vision to Empower Mobility and Beyond (Nov. 28, 2021) 
(announcing investments of $17.6 billion over the next five years to 
accelerate the electrification of its vehicle lineup).\11\ Prevailing 
company valuations highlight the internal combustion engine's bleak 
future, with electric vehicle manufacturers Tesla and Rivian currently 
having enterprise values of approximately $1 trillion and $100 billion, 
respectively, making them the first and third most valuable automobile 
manufactures by market capitalization. See Yahoo Finance, https://finance.yahoo.com/screener/predefined/auto_manufacturers/ (last visited 
Dec. 14, 2021).
---------------------------------------------------------------------------

    \9\ Available at: https://www.media.volvocars.com/us/en-us/media/pressreleases/list.
    \10\ Available at: https://www.tatamotors.com/investors/jlr-press-release-archive/.
    \11\ Available at: https://global.nissannews.com/en/pages/all-news-archive.
---------------------------------------------------------------------------

    Not surprisingly, the American oil majors uniformly identify 
increased political and social attention to greenhouse gas emissions as 
risks that may result in reduced demand for their oil. See, e.g., 
ConocoPhilips, Annual Report (Form 10-K) 27 (Feb. 16, 2021) (``[T]he 
new administration has recommitted the United States to the Paris 
Agreement, and a significant number of U.S. state and local governments 
and major corporations headquartered in the U.S. have also announced 
their intention to satisfy [the Paris Agreement] commitments.''); 
Pioneer Natural Resources Co., Annual Report (Form 10-K) 28 (Mar. 1, 
2021) (noting that numerous proposals ``have been made and could 
continue to be made at the international, national, regional and state 
levels of government to monitor and limit existing emissions of GHGs as 
well as to restrict or eliminate such future emissions''); Chevron 
Corp., Annual Report (Form 10-K) 22 (Feb. 25, 2021) (``[I]f new 
legislation, regulation, or other governmental action contributes to a 
decline in the demand for the company's products, this could have a 
material adverse effect on the company and its financial condition.''); 
Occidental Petroleum Corp., Annual Report (10-K) 10 (Feb. 26, 2021) 
(explaining that government action relating to greenhouse gas emissions 
could impose increased operating and maintenance costs, such as 
``higher rates charged by service providers'' or ``promote the use of 
alternative sources of energy and thereby decrease demand for oil'').
    This risk is being increasingly reflected in the financial markets. 
As noted in my dissent to the January 5 Decision, investment managers--
under pressure from their clients to pursue environmentally sustainable 
investing--have begun aligning their portfolios with net-zero 
emissions. January 5 Decision, FD 36284, slip op. at 16 (Board Member 
Oberman dissenting).\12\ This includes putting pressure directly on oil 
producers to develop more sustainable business strategies. For example, 
on May 26, 2021, Exxon Mobil Corporation's shareholders elected to its 
Board--over the opposition of company management--three insurgent 
directors from a small hedge fund, Engine No. 1. Exxon Mobil Corp., 
Current Report (Form 8-K/A) 3 (June 21, 2021). These nominees were 
advanced for the express purpose of directing the company towards a 
``long-term commitment to only funding projects that can break-even at 
much more conservative oil and gas prices,'' and to explore growth 
areas in ``net-zero emission energy sources and clean energy 
infrastructure.'' Exxon Mobil Corp., Definitive Proxy Statement 
(Schedule 14A) 5 (March 15, 2021). In its proxy statement, Engine No. 1 
emphasized ``growing long-term oil and gas uncertainty'' arising from a 
``decarbonizing world.'' \13\ Id. at 1.
---------------------------------------------------------------------------

    \12\ On May 20, 2021, President Biden signed an executive order, 
Climate-Related Financial Risk, which sets forth a policy of 
``advancing consistent, clear, intelligible, comparable, and 
accurate disclosure of climate-related financial risk . . . .'' 
Climate-Related Financial Risk, Exec. Order No. 14030, 86 FR 27967 
(May 26, 2021). The executive order acknowledges the risk to the 
competitiveness of companies and markets, as well as workers and 
communities, should financial institutions fail to adequately 
account for ``the global shift away from carbon-intensive energy 
sources and industrial processes.'' Id. at 27967.
    \13\ The hedge fund Third Point Investors also recently 
announced that it had taken a stake in Shell in part to advance a 
growth strategy focused on ``aggressive investment in renewables and 
other carbon reduction technologies.'' Available at https://thirdpointlimited.com/wp-content/uploads/2021/10/Third-Point-Q3-2021-Investor-Letter-TPIL.pdf.] Weeks later, Shell announced plans 
to simplify its share structure to accelerate ``delivery of its 
strategy to become a net-zero emissions business.'' Press Release, 
Royal Dutch Shell, Notice of General Meeting--Shell Seeks 
Shareholder Approval to Change Articles to Implement a Simplified 
Structure (Nov. 15, 2021), https://www.shell.com/media/news-and-media-releases/2021/november-press-release.html.
---------------------------------------------------------------------------

    It bears emphasizing that the political and business developments 
described above constitute only the latest and a small set of examples 
of the global

[[Page 72379]]

transition away from fossil fuels. This broad and rapidly accelerating 
trend calls into question both the viability of the Coalition's over $1 
billion rail construction project as well as its ability to raise money 
from private funding sources. It confirms the significant concerns I 
raised previously about the extent to which the project will both 
require the backing of, and put at risk, public funds. January 5 
Decision, FD 36284, slip op. at 19 (Board Member Oberman dissenting). 
These concerns have been exacerbated by the Coalition's decision not to 
supply (and indeed, to redact) oil and traffic projections from its 
consultant's pre-feasibility study, creating the ineluctable inference 
that the withheld data, if revealed, would undermine the commercial 
viability of the project. January 5 Decision, FD 36284, slip op. at 14-
15 & n.5 (Board Member Oberman dissenting). The majority's continuing 
to turn a blind eye to this glaring omission is even more perplexing in 
light of the dramatic changes in the world oil market detailed above.
    But make no mistake: The writing is on the wall. The Board has 
previously made clear that ``significant questions surrounding the 
financial feasibility of [a] proposed rail project'' may diminish its 
transportation merits and warrant against the granting of an exemption 
under section 10502. Tex. Cent. R.R. & Infrastructure, Inc.--Petition 
for Exemption--Passenger Rail Line Between Dallas & Houston, Tex. 
(Texas Central), FD 36025, slip op. at 14-15 (STB served July 16, 2020) 
(citing the RTP factors at 49 U.S.C. 10101(4) and 10101(5) as a basis 
for denying a petition for exemption given ``questions about increased 
costs and funding sources,'' the magnitude of the project, and the 
substantial public interest). Although the Board in Texas Central 
permitted the petitioner there to proceed via application, so as to 
provide additional information about the project's financial 
feasibility, an application in this case would not have changed the 
fact that the Line's transportation merits are greatly impaired by a 
future that has little use for the product it will be built to deliver. 
Moreover, and as explained in the following section, regardless of 
whether the Coalition had proceeded via application or petition for 
exemption, the Line's environmental impacts outweigh its transportation 
merits.

Environmental Impacts

    Consideration of the Line's environmental effects must treat as 
indirect effects those impacts associated with oil development in the 
Basin that will be supported by the Line, including downstream 
greenhouse gas emissions that will result from the oil's eventual 
combustion. Contrary to the position taken in Today's Decision, the 
Board has the power to act on these impacts, including by denying 
construction authority, and accordingly has an obligation to consider 
them as reasonably foreseeable effects of the project. Only in doing 
so, may the Board reach the central question in this case: Whether it 
is in the public interest for the Board to authorize the building of a 
railroad for the near exclusive purpose of facilitating oil and gas 
development, given all that we know today about the worsening global 
warming crisis and the role played by fossil fuel combustion. That 
question lies at the heart of whether the transportation merits of the 
project outweigh its environmental impacts, including the troubling and 
unavoidable disturbance to wetlands and wildlife that are in fact 
acknowledged by the majority as effects of this project. In my view, 
the Line is not worth these costs.
    With respect to downstream greenhouse gas emissions, the Final EIS 
recognized that construction of the Line ``would increase 
transportation capacity to ship an additional 130,000 to 350,000 
barrels of oil on average each day from existing oil fields . . . .'' 
(Final EIS 3.15-51; see also id. 3.15-3 to 3.15-4.) Further, it assumed 
that the oil from this new production would ultimately be refined into 
fuel and combusted, and it estimated that the resulting emission of 
carbon dioxide equivalents would total 19,785,953 metric tons annually 
under a low oil production scenario and 53,269,873 metric tons annually 
under a high oil production scenario, the latter of which would 
represent approximately 0.8% of nationwide greenhouse gas emissions and 
0.1% of global greenhouse gas emissions. (Id. at 3.15-36.) The Final 
EIS also identified other, more localized impacts of oil and gas 
development on water resources, biological resources, soils, noise, 
land use, cultural resources, and socioeconomics, including from the 
drilling of new wells. (See generally id. section 3.15.) These impacts 
are acknowledged in Today's Decision. Today's Decision 17.
    However, they are considered only for the purpose of assessing the 
project's cumulative impacts. Accordingly, and importantly, the Final 
EIS does not consider as an indirect impact the harm caused to the 
environment by downstream combustion of increased oil production 
enabled by the Line's construction. The Final EIS focuses instead only 
on the incremental de minimis effect of emissions from construction and 
operation of the Line when added to emissions from downstream 
combustion. (Final EIS 3.15-32); see also Twp. of Bordentown, NJ v. 
FERC, 903 F.3d 234, 258 (3d Cir. 2018) (explaining that a cumulative 
impact analysis looks at the marginal impact of the jurisdictional 
project when added to the non-jurisdictional projects' impacts). The 
majority approved this approach and in so doing obscured the centrality 
of the Line's construction to oil and gas development in the Basin, 
which will foreseeably cause far larger emissions from combustion of 
oil that will be moved over the Line.\14\ See Twp. of Bordentown, 903 
F.3d at 258 (``Where the other projects' impacts are themselves already 
significant or greatly outweigh the jurisdictional projects' impacts, 
such that the jurisdictional project will not meaningfully influence 
the extent of the already significant environmental impacts, the 
cumulative impacts test is inapposite.'').
---------------------------------------------------------------------------

    \14\ In contrast to the estimated emissions from the production 
scenarios discussed above, the Final EIS estimated that 
``[greenhouse gas] emissions from rail operations . . . would 
represent a small percentage (ranging from 0.9 percent to 3.5 
percent) of regional and statewide GHG emissions . . . and would not 
contribute significantly to global climate change.'' (Final EIS 3.7-
39.) Not surprisingly, the majority did not find cumulative adverse 
effects on greenhouse gas emissions or air quality, but rather 
identified only cumulative adverse effects on water resources, 
biological resources, paleontological resources, land use and 
recreation, visual resources, and socioeconomics. Today's Decision 
16.
---------------------------------------------------------------------------

    Considering the environmental impacts of oil development in the 
Basin only in the context of a cumulative impact analysis, and not as 
reasonably foreseeable impacts attributable to the Line itself, 
materially affects how those effects are factored by the Board when 
weighing the Line's transportation merits against its environmental 
impacts. See Landmark West! v. U.S. Postal Serv., 840 F. Supp. 994, 
1011 (S.D.N.Y. 1993) (explaining that a cumulative impact analysis 
``entails the consideration of the foreseeable actions of others as 
background factors, but does not require that the impacts of others' 
actions be weighed in assessing the significance'' of the agency's 
actions, only the ``marginal impacts of its own actions''), aff'd, 41 
F.3d 1500 (2d Cir. 1994).\15\ Today's Decision justifies this approach 
by relying on Department of Transportation v. Public Citizen, 541 U.S. 
752 (2004), contending that the

[[Page 72380]]

Board cannot be the ``legally relevant'' cause of impacts from oil and 
gas development, and therefore those impacts cannot be considered 
indirect impacts of the construction project. Today's Decision 18. 
Today's Decision emphasizes that the Board has no authority or 
jurisdiction over development of oil and gas in the Basin nor any 
authority to control or mitigate the impacts of any such development. 
Id. Importantly, and although not said in so many words, its reliance 
on Public Citizen necessarily implies that the Board cannot be the 
cause of such impacts because it lacks the power to act on them when 
deciding whether to approve or deny the Coalition's petition.
---------------------------------------------------------------------------

    \15\ Even though the labeling of the effects of oil and gas 
development in the Basin as indirect or cumulative impacts may not 
have affected their analysis within the Final EIS (Today's Decision 
18 n.15), it does affect how they are weighed by the Board.
---------------------------------------------------------------------------

    I disagree. In Public Citizen, the Supreme Court indeed held that 
where an ``agency has no ability to prevent a certain effect due to its 
limited statutory authority over the relevant actions, the agency 
cannot be considered a legally relevant `cause' of the effect,'' and 
hence need not consider such effects under NEPA. 541 U.S. at 770. That 
case, however, is readily distinguishable. At issue in Public Citizen 
was the planned lifting of a moratorium by the President (with 
authority from Congress) on cross-border truck traffic from Mexico and 
related regulations under review by the Federal Motor Carrier Safety 
Administration (FMCS). Although the regulations had to be issued before 
Mexican traffic could enter the United States, by statute the rules 
were limited to safety and financial responsibility issues. Id. at 758-
59. The Supreme Court concluded that the FMCSA had no obligation to 
evaluate emissions from the truck traffic when assessing the 
environmental impact of its regulations because FMCSA ``simply lack[ed] 
the power to act on'' any such emissions data. Id. at 768. Key to this 
holding was the Supreme Court's finding that FMCSA had ``no ability to 
countermand the President's lifting of the moratorium'' or otherwise 
``categorically'' prevent such traffic from entering the United States. 
Id. at 766 (emphasis added). As the Supreme Court explained, the 
``legally relevant cause of entry of the Mexican trucks is not FMCSA's 
action, but instead the actions of the President in lifting the 
moratorium and those of Congress in granting the President this 
authority while simultaneously limiting FMCSA's discretion.'' Id. at 
769.
    The scope of Public Citizen becomes even more apparent when 
considering how the case has been applied in other circumstances 
involving downstream greenhouse gas emissions. For example, in Sierra 
Club v. FERC (Freeport), the D.C. Circuit held that the Federal Energy 
Regulatory Commission (FERC) had no obligation to consider such 
emissions when approving facility upgrades at a liquified natural gas 
terminal that would be used to support export operations. 827 F.3d 36, 
47-48 (D.C. Cir. 2016). This was because the Department of Energy (DOE) 
has exclusive jurisdiction over the export of natural gas as a 
commodity and had already authorized the terminal in Freeport to export 
gas. Id. at 40. DOE merely delegated to FERC licensing authority over 
the siting, construction, expansion, and operation of specific 
facilities. Id. at 40-41. Citing Public Citizen, the D.C. Circuit 
concluded that FERC could not be the ``legally relevant'' cause of 
emissions from gas exported from the terminal because DOE's 
``intervening'' and ``independent decision to allow exports--a decision 
over which [FERC] has no regulatory authority--[broke] the NEPA causal 
chain and absolve[d]'' FERC of responsibility to consider impacts it 
``could not act on.'' Id. at 47-48.
    Public Citizen, which the majority relied upon, and Freeport, which 
shows its application, lay bare the flaw in the majority's reasoning. 
Had Congress itself authorized construction of a railroad out of the 
Basin, or vested that authority in another federal agency, but left to 
the Board the narrower responsibility of deciding where that line 
should be placed and the details of its construction, then perhaps 
Public Citizen would be instructive. But here, the Board has 
independent and plenary authority, and exclusive jurisdiction, over 
whether a line of railroad should be built in the first instance. 49 
U.C.S. 10501, 10901. See Alaska Survival v. STB, 705 F.3d 1073, 1086 
(9th Cir. 2013) (emphasizing that the decision as to ``which 
communities are entitled to important railroad development projects'' 
is ``committed in the first instance to the agency authorized by 
Congress to approve rail line construction projects, the STB''). That 
the Board has no authority or jurisdiction over development of oil and 
gas in the Basin, (Today's Decision 18),\16\ and generally cannot 
restrict the types of products and commodities that are transported on 
already constructed rail lines, (Final EIS 3.15-36),\17\ are not the 
types of overarching limitations like that at issue in Public Citizen 
which would diminish, let alone inform, the Board's authority over rail 
construction.
---------------------------------------------------------------------------

    \16\ See Birkhead v. FERC, 925 F.3d 510, 519 (D.C. Cir. 2019) 
(rejecting argument that agency cannot be legally relevant cause of 
emissions from gas transported via agency-approved pipeline ``due to 
its lack of jurisdiction over any entity other than the pipeline 
applicant'').
    \17\ The Final EIS cites to Riffin v. STB, 733 F.3d 340, 345-47 
(D.C. Cir. 2013), for the established proposition ``that railroads 
have a common carrier obligation to carry all commodities, including 
hazardous materials, upon reasonable request . . . .'' (Final EIS 
3.15-6 (emphasis added).) While that may be true, it has nothing to 
do with the Board's authority to license rail construction and its 
obligation to consider environmental impacts when doing so.
---------------------------------------------------------------------------

    The D.C. Circuit's decision in Sierra Club v. FERC (Sabal Trail) is 
on point. That case involved FERC's decision to approve the 
construction and operation of certain interstate natural gas pipelines 
in the southeastern United States. Sabal Trail, 867 F.3d 1357, 1363 
(D.C. Cir. 2017). As here, at issue was whether Public Citizen excused 
FERC's decision not to attribute to the pipeline, and consider, 
greenhouse gas emissions arising from the end-use combustion of gas to 
be moved over the pipeline. Id. at 1365, 1371-72. In its decision, the 
D.C. Circuit made clear that the relevant question is not `` `What 
activities does [an agency] regulate?' but instead . . . `What factors 
can [the agency] consider when regulating in its proper sphere?' '' Id. 
at 1373. In other words, is an agency ``forbidden to rely'' on the 
effects of the impact as ``justification'' for denying a license? Id. 
The Court found that FERC was ``not so limited.'' Id. Critical to its 
analysis was that Congress gave FERC broad power over the construction 
and operation of interstate pipelines, expansively directing it to 
consider the ``public convenience and necessity'' when reviewing an 
application. Id. (citing 15 U.S.C. 717f(e).) The Court emphasized that 
FERC balances the ``public benefits against the adverse effects of the 
project,'' including ``adverse environmental effects,'' and can deny 
construction authority ``on the ground that [it] would be too harmful 
to the environment.'' Sabal Trail, 867 F.3d at 1373. For all of these 
reasons, the Court concluded that FERC ``is a `legally relevant cause' 
of the direct and indirect environmental effects of the pipelines it 
approves.'' Id. (emphasis added).\18\
---------------------------------------------------------------------------

    \18\ See also WildEarth Guardians v. Zinke, 368 F. Supp. 3d 41, 
73 (D.D.C. 2019) (holding that because Bureau of Land Management 
(BLM) could decline to sell an oil and gas lease if the 
``environmental impact of those leases--including use of the oil and 
gas produced--would not be in the public's long-term interest,'' BLM 
was required to consider downstream greenhouse gas emissions ``as 
indirect effects of oil and gas leasing''), appeal dismissed per 
stipulation, 2021 WL 3176109 (D.C. Cir. Apr. 28, 2021).
---------------------------------------------------------------------------

    As in Sabal Trail, here too the Board has a broad statutory 
obligation not to authorize rail construction when doing so would be 
``inconsistent with the public convenience and necessity.'' 49 U.S.C. 
10901(c). And although in this case the Coalition has proceeded via a 
petition for exemption from the prior

[[Page 72381]]

approval requirements of section 10901, use of the exemption process 
does not affect the level of environmental review a project receives. 
Cal. High-Speed Rail Auth.--Constr. Exemption--in Merced, Madera, and 
Fresno Cntys., Cal., FD 35724, slip op. at 21-22 (STB served June 13, 
2013). The Board has also made clear that environmental impacts can 
lead it to categorically decline to authorize rail construction, 
including when considering a petition for exemption. Alaska R.R.--
Constr. & Operation Exemption--Rail Line Between N. Pole & Delta 
Junction, Alaska, FD 34658, slip op. at 10 (STB served Jan. 6, 2010). 
In either circumstance, and as in Today's Decision, the Board weighs 
the project's transportation merits against its environmental impacts 
when determining whether to grant construction authority. (Today's 
Decision 23-25.) This is in keeping with NEPA, which requires the Board 
to consider the environmental impacts of a decision permitting rail 
construction, regardless of whether it does so by granting an 
application under section 10901 or an exemption under section 
10502.\19\ 42 U.S.C. 4332(C).
---------------------------------------------------------------------------

    \19\ In any event, the Board may not exempt construction from 
section 10901 where regulation is necessary to carry out the RTP, 
including those factors calling for the development of a sound rail 
transportation system to meet the public need, operation of 
transportation facilities without detriment to public health and 
safety, and energy conservation. 49 U.S.C. 10502; 49 U.S.C. 
10101(4), (8), (14). In my view, these policy directives broadly 
warrant the Board's consideration of the environmental impacts to be 
caused by oil development in the Basin, including downstream 
greenhouse gas emissions.
---------------------------------------------------------------------------

    I see no reason why the Line's construction would not otherwise be 
a sufficient cause of the oil and gas development impacts and 
downstream emissions identified in the Final EIS. It may well be the 
case that oil development ``may occur, and is already taking place, 
without the proposed rail line,'' (Final EIS T-44), and that the 
``actual volumes of crude oil that would move over the Line would 
depend on various independent variables and influences,'' (Today's 
Decision 17). However, the Coalition's own position has been that 
trucking oil produced from the Basin to distant markets is cost 
prohibitive and that ``the lack of rail access has effectively capped 
oil production in the Basin.'' (Pet. 13-14.) As the Coalition puts it, 
a rail line would ``enable local producers to increase their output 
under appropriate market conditions.'' (Id. at 15.) It cannot be 
disputed that ``but for'' the proposed rail line, significantly less 
oil will be extracted from the Basin. See Mid States Coal. for Progress 
v. STB, 345 F.3d 520, 548-50 (8th Cir. 2003) (requiring that agency 
consider emissions from combustion of coal transported over rail line 
as it was ``almost certainly true'' that the line would increase the 
``availability of inexpensive coal'' and ``any adverse effects that 
result from burning coal'').\20\
---------------------------------------------------------------------------

    \20\ The Final EIS suggests that this aspect of Mid States would 
not stand today, given the Supreme Court's subsequent decision in 
Public Citizen. (Final EIS T-440.) But as explained above, the Court 
in Public Citizen grounded its holding on FCMSA's inability to 
prevent the relevant environmental effect ``due to its limited 
statutory authority over the relevant actions.'' 541 U.S. at 770. 
Mid States did not address whether the Board had the authority to 
deny or condition its construction approval on the emissions it 
originally failed to consider. Mid States appears still to be 
relevant for the proposition that the Board may be the legally 
relevant cause of downstream impacts that would not occur ``but 
for'' the agency's construction approval.
---------------------------------------------------------------------------

    Of course, a `` `but for' causal relationship is insufficient to 
make an agency responsible for a particular effect under NEPA . . . .'' 
Public Citizen, 541 U.S. at 767. Instead, ``NEPA requires analysis of 
an effect only where there is a reasonably close causal relationship 
between the environmental effect and the alleged cause, analogous to 
the doctrine of proximate cause from tort law.'' (Final EIS T-43 
(citing Public Citizen, 541 U.S. at 767).) As the Supreme Court has 
made clear, proximate cause ``turns on policy considerations'' and 
where best to ``draw a manageable line between those causal changes 
that may make an actor responsible for an effect and those that do 
not.'' Public Citizen, 541 U.S. at 767 (citations omitted) (emphasis 
added). Notably, in Public Citizen, prevailing policy dictated that the 
FCMSA could not possibly be the proximate cause of the motor carrier 
emissions at issue since, again, FMCSA had ``no ability categorically 
to prevent the cross-border operation of Mexican motor carriers.'' Id. 
at 768. That is, in Public Citizen the Court's analysis of proximate 
cause turned on its conclusion that the FMCSA's lacked authority over 
the traffic.
    As explained above, Public Citizen does not ``excuse'' the Board 
from considering impacts from oil and gas development. Sabal Trail, 867 
F.3d at 1373. And it otherwise seems well within the range of 
reasonable policy considerations--and frankly, the only reasonable 
policy consideration--for the Board to weigh these impacts when making 
its final decision, at least with respect to this particular line. As 
noted in my prior dissent, there is no question that increased oil 
production is the ``singular rationale'' for the Line: Its potential 
use by other industries is ancillary to the movement of oil and not 
valuable enough standing alone to justify the line's construction and 
continued operation. January 2020 Decision, slip op. at 14 (Board 
Member Oberman dissenting) (citing Pet. 13-17). That is, increased oil 
output, its refinement into petroleum, and that petroleum's ultimate 
sale and combustion are not only ``reasonably foreseeable,'' they are 
``the project's entire purpose.''  \21\Sabal Trail, 867 F.3d at 1372.
---------------------------------------------------------------------------

    \21\ When weighing the project's transportation merits against 
its environmental impacts, Today's Decision stresses that a ``rail 
transportation option could also support the diversification of 
local economies in the Basin, which could support additional 
employment and expand the regional economy.'' (Today's Decision 24.) 
But it gives no weight to the nature of the industry the Line is 
meant to support and that industry's impact on climate change. While 
local economic development may be a reason to support the Line's 
construction, if the majority is to weigh the economic benefits of 
that development, it should weigh all of its harms as well. When 
that is done, it is apparent that the project's environmental 
impacts outweigh its benefits.

---------------------------------------------------------------------------

[[Page 72382]]

    Moreover, there can be no question about the significance of the 
threat that global warming poses to the environment as well as to our 
continued prosperity. Days after OEA issued the Final EIS, the United 
Nations' Intergovernmental Panel on Climate Change's (IPCC's) Working 
Group I released its contribution to the IPPC's Sixth Assessment 
Report, which presents the most up-to-date understanding of the current 
state of the climate.\22\ The report presents a dire picture. Among 
other things, it concludes that: (i) It is ``unequivocal'' that human 
influence has warmed the atmosphere, ocean, and land; (ii) global 
surface temperature in the first two decades of the 21st century was 
.99 [deg]C higher than 1850-1900; (iii) human-induced climate change is 
``already affecting many weather and climate extremes in every region 
across the globe''; (iv) evidence attributing heatwaves, heavy 
precipitation, droughts, and tropical cyclones to human influences has 
strengthened in the last several years; (v) global warming of 1.5 
[deg]C and 2 [deg]C will be exceeded during the 21st century unless 
deep reductions in greenhouse gas emissions occur in the coming 
decades; \23\ and (vi) with further global warming, every region around 
the world will increasingly experience extreme climate events, 
including heavy precipitation, flooding, and droughts. IPCC 2021 at 
SPM-5, SPM-10, SPM-17, and SPM-32.
---------------------------------------------------------------------------

    \22\ See Richard Allan, et al., Summary for Policymakers in 
Climate Change 2021: The Physical Science Basis. Contribution of 
Working Group I to the Sixth Assessment Report of the 
Intergovernmental Panel on Climate Change (IPCC 2021 Summary for 
Policymakers) (Val[eacute]rie Masson-Delmonte et al., eds., in 
press), https://www.ipcc.ch/report/ar6/wg1/downloads/report/IPCC_AR6_WGI_Full_Report.pdf.
    \23\ According to the Climate Action Tracker--an independent 
scientific analysis that tracks government climate action and 
measures it against the globally agreed Paris Agreement--current 
policies in place around the world are projected to result in 2.7 
[deg]C warming above pre-industrial levels. Temperature, Climate 
Action Tracker, https://climateactiontracker.org/global/temperatures/# (last updated Nov. 9, 2021).
---------------------------------------------------------------------------

    These effects are already being felt. July 2021 was the hottest 
month ever recorded, according to global data from the National Oceanic 
and Atmospheric Administration (NOAA), with parts of the world 
witnessing record high temperatures, unprecedented heat waves, floods, 
and other extreme weather events.\24\ The World Meteorological 
Organization (WMO), an agency of the United Nations, has predicted that 
the annual mean global temperature is likely to be at least 1 [deg]C 
above pre-industrial levels in each of the next five years, with a 90% 
chance that at least one of those years will be the warmest on record. 
Press Release, WMO, New Climate Predictions Increase Likelihood of 
Temporarily Reaching 1.5 [deg]C in Next 5 Years (May 27, 2021).\25\ The 
past seven years are on track to be the warmest on record. Press 
Release, World Meteorological Organization, State of Climate in 2021: 
Extreme Events & Major Impacts (Oct. 21, 2021). As detailed above, our 
national and state governments and many leading components of the 
private sector have accelerated their response to the growing 
environmental disaster. Decarbonization is national policy.
---------------------------------------------------------------------------

    \24\ See NOAA, It's Official: July was Earth's Hottest Month on 
Record (Aug. 13, 2021), available at: https://www.noaa.gov/news-features. On July 11, 2021, the National Weather Service recorded a 
temperature of 54 [deg]C (129.2 [deg]F) in Death Valley, which tied 
the record (set last year) for the hottest formally recognized 
daytime temperature ever. July and August also saw unprecedented 
heat waves in the Pacific Northwest, national high temperature 
records set in Spain, Tunisia, and Turkey, Germany ravaged by 
floods, and parts of China receiving a year's worth of rain in just 
three days. Press Release, World Meteorological Organization, State 
of Climate in 2021: Extreme Events & Major Impacts (Oct. 21, 2021), 
available at: https://public.wmo.int/en/media/press-release.
    \25\ Available at: https://public.wmo.int/en/media/press-release.
---------------------------------------------------------------------------

    The growing threat from global warming is too great, and its 
connection to the combustion of fossil fuel too obvious, for the 
environmental impacts of Line-induced oil and gas development in the 
Basin to be treated as anything other than what they are: Reasonably 
foreseeable effects of the rail construction project itself. For the 
reasons explained above, the Board has the power to act on impacts 
resulting from that development when deciding whether to approve the 
petition, and can and should engage with the central question presented 
in this matter: Whether a railroad built for the purpose of supporting 
oil and gas development, given the need for decarbonization and the 
harmful effects of global warming, is within the public interest. 
Robertson v. Methow Valley Citizens Council, 490 U.S. 332, 349-50 
(1989) (holding that under NEPA an agency must ``carefully consider'' 
information concerning significant environmental impacts when 
``reaching its decision''). Such an approach properly situates the 
significant environmental impacts that nobody appears to disagree are 
attributable to the Line's construction and operation--among other 
things, impacts on surface waters and the loss of wetlands, disruption 
to habitat of threatened and endangered species, and disturbance of the 
use of otherwise pristine land--all of which are unavoidable and cannot 
be mitigated. (Final EIS S-8 to S-9.) Is the Line worth all of this 
given the activity it is intended to support? Without evidence that 
there is some particularized need for oil from the Basin, in the face 
of overwhelming evidence to the contrary, and given the irrefutable 
fact that this oil's use will contribute to the global warming crisis, 
I cannot say that it is.
    I dissent.

Jeffrey Herzig,
Clearance Clerk.

Appendix A

Map of Alternatives

[[Page 72383]]

[GRAPHIC] [TIFF OMITTED] TN21DE21.014

Appendix B

Environmental Mitigation Conditions

Voluntary Mitigation Measures

Construction and Rail Operations Safety

    VM-1. The Seven County Infrastructure Coalition (Coalition) will 
follow all applicable federal Occupational Safety and Health 
Administration (OSHA), Federal Railroad Administration (FRA), tribal, 
and state construction and operational safety regulations to minimize 
the potential for accidents and incidents during construction and 
operation of the rail line.

Grade Crossing Safety

    VM-2. The Coalition will consult with appropriate federal, tribal, 
state, and local transportation agencies to determine the final design 
of the at-grade crossing warning devices. Implementation of all grade-
crossing warning devices on public roadways will be subject to review 
and approval, depending on location, by the Ute Indian Tribe of the 
Uintah and Ouray Reservation (Ute Indian Tribe), Utah Department of 
Transportation (UDOT), U.S. Forest Service (Forest Service), or Carbon, 
Duchesne, or Uintah Counties. The Coalition will follow standard safety 
designs for each at-grade crossing for proposed warning devices and 
signs. These designs will follow the Federal Highway Administration 
Manual on Uniform Traffic Control Devices for Streets and Highways as 
implemented by UDOT and the American Railway Engineering and 
Maintenance-of-Way Association standards for railroad warning devices. 
They will also comply with applicable UDOT, tribal, city, and county 
requirements.
    VM-3. For construction of road crossings, when reasonably 
practical, the Coalition will consult with tribal and local 
transportation officials regarding detours and associated signs, as 
appropriate, or maintain at least one open lane of traffic at all times 
to allow the quick passage of emergency and other vehicles.
    VM-4. The Coalition will develop a plan to consult with private 
landowners to determine the final details and reasonable signage for 
grade crossings on private roads.
    VM-5. Where practical, at-grade crossings for minor roads and 
private roads will be combined and consolidated into right-angle, at-
grade crossings for safety, and in order to reduce the total the number 
of highway-rail at-grade crossings.
    VM-6. The Coalition will consult with affected communities 
regarding ways to improve visibility at highway-rail at-grade 
crossings, including by clearing vegetation or installing lights at the 
crossing during construction.

Hazardous Materials Handling and Spills During Construction

    VM-7. Prior to initiating any project-related construction 
activities, the Coalition will develop a spill prevention, control, and 
countermeasures plan in consultation with federal, tribal, state and 
local governments. The plan will specify measures to prevent the 
release of petroleum products or other hazardous materials during 
construction activities and contain such discharges if they occur.
    VM-8. In the event of a spill over the applicable reportable 
quantity, the Coalition will comply with its spill prevention, control, 
and countermeasures plan and applicable federal, state, local and 
tribal regulations pertaining to spill containment, appropriate clean-
up, and notifications.
    VM-9. The Coalition will require its construction contractor(s) to 
implement measures to protect workers' health and safety and the 
environment in the event that undocumented hazardous materials are 
encountered during construction. The Coalition will document all 
activities associated with hazardous material spill sites and hazardous 
waste sites and will notify the appropriate state, local, and tribal 
agencies according to applicable regulations. The goal of the measures 
is to ensure the proper handling and disposal of

[[Page 72384]]

contaminated materials including contaminated soil, groundwater, and 
stormwater, if such materials are encountered. The Coalition will use 
disposal methods that comply with applicable solid and hazardous waste 
regulations.
    VM-10. The Coalition will ensure that gasoline, diesel fuel, oil, 
lubricants, and other petroleum products are handled and stored to 
reduce the risk of spills contaminating soils or surface waters. If a 
petroleum spill occurs in the project area as a result of rail 
construction, operation, or maintenance and exceeds specific quantities 
or enters a water body, the Coalition (or its agents) will be 
responsible for promptly cleaning up the spill and notifying 
responsible agencies in accordance with federal, state, and tribal 
regulations.

Hazardous Materials Transport and Emergency Response

    VM-11. The Coalition will prepare a hazardous materials emergency 
response plan to address potential derailments or spills. This plan 
will address the requirements of the Pipeline and Hazardous Materials 
Safety Administration and FRA requirements for comprehensive oil spill 
response plans. The Coalition will distribute the plan to federal, 
state, local, and tribal emergency response agencies. This plan shall 
include a roster of agencies and people to be contacted for specific 
types of emergencies during rail construction, operation and 
maintenance activities, procedures to be followed by particular rail 
employees, emergency routes for vehicles, and the location of emergency 
equipment.
    VM-12. The Coalition will work with the affected communities to 
facilitate the development of cooperative agreements with other 
emergency service providers to share service areas and emergency call 
response.
    VM-13. After construction is completed, the Coalition will 
implement a desktop simulation of its emergency response drill 
procedures with the voluntary participation of local emergency response 
organizations. If necessary, the Coalition will update the hazardous 
materials emergency response plan based on the findings and 
observations of the simulated emergency response.
    VM-14. In the event of a reportable hazardous materials release, 
the Coalition will notify appropriate federal, state, and tribal 
environmental agencies as required under federal, state, and tribal 
law.
    VM-15. The Coalition will comply with FRA, Pipeline and Hazardous 
Materials Safety Administration, Transportation Security Administration 
regulations and tribal ordinances or plans applicable to the safe and 
secure transportation of hazardous materials.

Topography, Geology, and Soils

    VM-16. The Coalition will limit ground disturbance to only the 
areas necessary for project-related construction activities.
    VM-17. During project-related earth-moving activities, the 
Coalition will require the contractor to remove topsoil and segregate 
it from subsurface soils. Where practical, the contractor will also 
stockpile topsoil to be applied later during reclamation activities in 
disturbed areas along the right-of-way.
    VM-18. The Coalition will place the topsoil and other excavated 
soil stockpiles in areas away from environmentally or culturally 
sensitive areas and will use appropriate erosion control measures on 
and around stockpiles to prevent or contain erosion.
    VM-19. The Coalition will submit a notice of intent to request 
permit coverage under Utah Pollutant Discharge Elimination System 
Construction General Permit UTRC00000 for construction stormwater 
management.
    VM-20. The Coalition will submit an application for coverage under 
the National Pollutant Discharge Elimination System stormwater 
construction permits pursuant to Section 402 of the Clean Water Act for 
construction stormwater management on tribal land.
    VM-21. The Coalition will develop a stormwater pollution prevention 
plan, which will include construction Best Management Practices (BMPs) 
to control erosion and reduce the amount of sediment and pollutants 
entering surface waters, groundwater, and waters of the United States. 
The Coalition will require its construction contractor(s) to follow all 
water quality control conditions identified in all permits, including 
the Section 404 permit from the U.S. Army Corps of Engineers (Corps) 
and the Section 401 Water Quality Certification from the Utah 
Department of Environmental Quality (UDEQ) and the U.S. Environmental 
Protection Agency (USEPA).
    VM-22. The Coalition will revegetate disturbed areas, where 
practical and in consultation with the Ute Indian Tribe as applicable, 
when construction is completed. The goal of reclamation will be the 
rapid and permanent re-establishment of native groundcover on disturbed 
areas to prevent soil erosion, where feasible. If weather or seasonal 
conditions prevent vegetation from being quickly re-established, the 
Coalition will use measures such as mulching, erosion-control blankets, 
or dust-control palliatives to prevent erosion until vegetative cover 
is established. The Coalition will monitor reclaimed areas for 3 years. 
For areas where efforts to establish vegetative cover have been 
unsuccessful after 1 year, the Coalition will reseed annually for up to 
3 years as needed.

Air Quality

    VM-23. Where practical and in consultation with the Ute Indian 
Tribe as applicable, the Coalition will implement appropriate fugitive-
dust controls such as spraying water or other dust treatments in order 
to reduce fugitive-dust emissions created during project-related 
construction activities. The Coalition will require its construction 
contractor(s) to regularly operate water trucks on haul roads to reduce 
dust generation.
    VM-24. The Coalition will work with its contractor(s) to make sure 
that construction equipment is properly maintained and that mufflers 
and other required pollution-control devices are in working condition 
in order to limit construction-related air pollutant emissions.

Water Resources

    VM-25. The Coalition will obtain a permit from the Corps under 
Section 404 of the Clean Water Act before initiating project-related 
construction activities in wetlands and other jurisdictional waters of 
the United States. The Coalition will comply with all conditions of the 
Section 404 permit.
    VM-26. The Coalition will obtain a Section 401 Water Quality 
Certification from the State of Utah and USEPA. The Coalition will 
incorporate the conditions of the Section 401 Water Quality 
Certification into its construction contract specifications and will 
monitor the project for compliance.
    VM-27. The Coalition will minimize impacts on wetlands to the 
extent practicable in the final design of the selected alternative. 
After all practicable steps have been taken to minimize impacts on 
wetlands, the Coalition agrees to prepare a compensatory mitigation 
plan for any remaining wetland impacts in consultation with the Ute 
Indian Tribe where applicable. Compensatory mitigation may include any 
one or a combination of the following five methods: Restoring a 
previously existing wetland or other aquatic site, enhancing an 
existing aquatic site's functions, establishing (that is, creating) a 
new aquatic site, preserving an existing aquatic site, and/

[[Page 72385]]

or purchasing credits from an authorized wetland mitigation bank.
    VM-28. Bridges at perennial streams will be designed to maintain a 
natural substrate.
    VM-29. The Coalition will obtain stream alteration permits from the 
Utah Division of Water Rights for crossing waters of the state, and any 
applicable tribal permits, and will comply with all conditions of the 
permits.
    VM-30. The Coalition will construct stream crossings during low-
flow periods, when practical.
    VM-31. When practical and in consultation with the Ute Indian Tribe 
where applicable, the Coalition will relocate natural streams using 
bioengineering methods, where relocation is needed and is unavoidable.
    VM-32. For streams and rivers with a floodplain regulated by the 
Federal Emergency Management Agency or the Ute Indian Tribe, the 
Coalition will design the stream crossing with the goal of not impeding 
floodwaters and not raising water surface elevations to levels that 
would change the regulated floodplain boundary. If flood elevations 
change, the Coalition will coordinate with Federal Emergency Management 
Agency and/or tribal or local floodplain managers to obtain a Letter of 
Map Revision where construction of bridges, culverts, or embankments 
results in an unavoidable increase greater than 1 foot to the 100-year 
water surface elevations.

Biological Resources

    VM-33. The Coalition will comply with any conditions and mitigation 
commitments contained in a biological opinion for sensitive species 
that could potentially be impacted by the project.
    VM-34. The Coalition will require its contractor(s) to comply with 
the requirements of the Migratory Bird Treaty Act in consultation with 
the Ute Indian Tribe as applicable. The following measures will be 
conducted by the Coalition and/or its contractor(s).
    a. Where practical, any ground-disturbing, ground-clearing 
activities or vegetation treatments will be performed before migratory 
birds begin nesting or after all young have fledged.
    b. If activities must be scheduled to start during the migratory 
bird breeding season, the Coalition will take steps to prevent 
migratory birds from establishing nests in the potential impact area. 
Birds can be hazed to prevent them from nesting until egg(s) are 
present in the nest. The Coalition or its agents will not haze or 
exclude nest access for migratory birds and other sensitive avian 
species.
    c. If activities must be scheduled during the migratory bird 
breeding season, a qualified biologist will perform a site-specific 
survey for nesting birds starting no more than 7 days prior to ground-
disturbing activities or vegetation treatments. Birds with eggs or 
young will not be hazed, and nests with eggs or young will not be moved 
until the young are no longer dependent on the nest. A qualified 
biologist will confirm that all young have fledged.
    d. If nesting birds are found during the survey, the Coalition will 
establish appropriate seasonal or spatial buffers around nests. 
Vegetation treatments or ground-disturbing activities within the buffer 
areas will be postponed, where feasible, until the birds have left the 
nest. A qualified biologist will confirm that all young have fledged.
    VM-35. The Coalition will execute a Mitigation Agreement with the 
Utah Division of Wildlife Resources (UDWR) to address impacts within 
the Carbon Sage-grouse Management Area (CSGMA). The Coalition has 
discussed several potential mitigation strategies with UDWR and other 
local, state, tribal and federal stakeholders during the EIS process. 
The final CSGMA Mitigation Agreement will define the appropriate 
mitigation ratio for the project type and its impacts and the final 
mitigation approach.
    VM-36. The Coalition shall comply with the Ute Indian Tribe's 
Greater Sage-Grouse Conservation Ordinance as applicable.
    VM-37. If the selected alternative impacts U.S. Bureau of Land 
Management (BLM) lands, the Coalition will request that BLM join as a 
signatory to the CSGMA Mitigation Agreement.
    VM-38. The Coalition will prepare a noxious and invasive weed 
control plan in consultation with the Ute Indian Tribe as applicable. 
Where practical, the Coalition will include the policies and strategies 
in Utah's Strategic Plan for Managing Noxious and Invasive Weeds when 
designing response strategies for noxious and invasive weeds.
    VM-39. The Coalition will comply with any conditions and mitigation 
commitments contained in a biological opinion for sensitive plant 
species that could potentially be impacted by the project.
    VM-40. The Coalition will work with UDWR, the Ute Indian Tribe, and 
adjacent landowners to define areas of the right-of-way that can be 
left without fences to maintain big game migration corridors.
    VM-41. Where practical and necessary, the Coalition will install 
wildlife-safe fences to confine livestock within grazing allotments.

Cultural Resources

    VM-42. The Coalition will work with the Ute Indian Tribe and others 
to develop training materials to educate construction supervisors about 
the importance of protecting cultural resources and the procedures for 
handling undocumented discoveries. The Coalition will make reasonable 
efforts to include the Ute Indian Tribe in the presentation of these 
materials.
    VM-43. The Coalition will comply with the requirements of the 
Programmatic Agreement being developed by the Office of Environmental 
Analysis (OEA), the Advisory Council on Historic Preservation, Utah 
State Historic Preservation Office, Ute Indian Tribe, and other federal 
and state agencies in consultation with federally recognized tribes and 
other consulting parties.

Land Use

    VM-44. If temporary construction easements on private property are 
needed, the Coalition will document the preconstruction conditions and, 
to the extent practical, will restore the land to its preconstruction 
condition after construction is complete.
    VM-45. The Coalition will consult with landowners regarding grazing 
allotments and will install temporary fences during construction to 
allow continued grazing, where practicable. Once construction is 
complete, the Coalition will replace all permanent fences removed 
during construction.
    VM-46. Where practical, the Coalition will maintain livestock 
access to water sources or will relocate water sources, maintain 
vehicle and livestock access to grazing allotments, and install safety 
fences and signs for grazing allotment entrances and exits to enable 
continuance of livestock operations within grazing allotments.
    VM-47. The Coalition will secure agreements with utilities to 
establish responsibility for protecting or relocating existing 
utilities, if impacted by construction.
    VM-48. The Coalition will coordinate with water districts to 
develop irrigation infrastructure protection or relocation plans, if 
irrigation infrastructure will be impacted by construction.

Community Outreach

    VM-49. The Coalition will appoint a community liaison to consult 
with affected communities, businesses, and agencies and seek to develop 
cooperative solutions to local concerns regarding construction 
activities.
    VM-50. The Coalition will appoint a tribal community liaison to 
address the

[[Page 72386]]

needs and concerns of Ute Indian Tribe members and communities and seek 
to develop cooperative solutions to concerns regarding construction 
activities and rail operations.
    VM-51. The Coalition will maintain a project website throughout the 
duration of construction to provide regular updates regarding 
construction progress and schedule.
    VM-52. The Coalition will install construction warning and detour 
signs throughout the corridor and at recreation sites around the 
project area as needed.

Noise and Vibration

    VM-53. The Coalition, in consultation with the Ute Indian Tribe, 
will comply with FRA regulations (49 Code of Federal Regulations [CFR] 
Part 210) establishing decibel limits for train operation.
    VM-54. The Coalition will work with its contractor(s) to make sure 
that project-related construction and maintenance vehicles are 
maintained in good working order with properly functioning mufflers to 
control noise.

Recreation

    VM-55. If needed for the selected alternative, the Coalition will 
obtain approval from the Forest Service and will follow the conditions 
of the permit regarding access to, or temporary closure of, 
recreational features during construction.
    VM-56. The Coalition will work with its construction contractor to 
maintain access to Forest Service roads during construction, where 
feasible.

Additional Mitigation Measures

Vehicle Safety and Delay

    VSD-MM-1. The Coalition shall design and construct any new 
temporary or permanent access roads and road realignments to comply 
with the reasonable requirements of the UDOT Roadway Design Manual 
(UDOT 2020), other applicable road construction guidance (e.g., county 
road right-of-way encroachment standards), and land management agency 
or landowner requirements (e.g., BLM H-9113-1 Road Design Handbook) 
regarding the establishment of safe roadway conditions.
    VSD-MM-2. During project-related construction activities, the 
Coalition and its contractors shall comply with speed limits and 
applicable laws and regulations when operating vehicles and equipment 
on public roadways.
    VSD-MM-3. The Coalition shall obtain and abide by the reasonable 
requirements of applicable permits and approvals for any project-
related construction activities within UDOT rights-of way or state 
highways where UDOT has jurisdiction and off-system roads that are 
maintained by UDOT.
    VSD-MM-4. For each of the public at-grade crossings on the rail 
line, the Coalition shall provide and maintain permanent signs 
prominently displaying both a toll-free telephone number and a unique 
grade-crossing identification number in compliance with Federal Highway 
Administration regulations (23 CFR part 655). The toll-free number 
would enable drivers to report promptly any accidents, malfunctioning 
warning devices, stalled vehicles, or other dangerous conditions.
    VSD-MM-5. The Coalition shall make Operation Lifesaver educational 
programs available to communities, schools, and other organizations 
located along the rail line. Operation Lifesaver is a nationwide, 
nonprofit organization that provides public education programs to help 
prevent collisions, injuries, and fatalities at highway/rail grade 
crossings.
    VSD-MM-6. The Coalition shall consult with private landowners and 
communities affected by new at-grade crossings or that are adjacent to 
the rail line to identify measures to mitigate impacts on emergency 
access and evacuation routes and incorporate the results of this 
consultation into the Coalition's emergency response plan. These 
measures may include identifying new ingress and egress routes that 
could be used to improve safety in the event of an emergency.

Rail Operations Safety

    ROS-MM-1. In the event of a reportable hazardous materials release, 
the Coalition shall notify appropriate local (county and city) agencies 
in addition to appropriate federal, state, and tribal environmental 
agencies as required under federal, state, and tribal law.
    ROS-MM-2. As part of routine rail inspections or at least twice 
annually, the Coalition shall use appropriate technology to inspect 
both track geometry (horizontal and vertical layout of tracks) and 
local terrain conditions to identify problems with either the track or 
the surrounding terrain. The track inspection shall be designed and 
conducted so as to identify changes in track geometry that could 
indicate broken rails or welds, misalignments, and other technical 
issues with the track itself. The visual inspection of terrain shall be 
designed and conducted so as to identify evidence of subsidence, 
rockslides, undermining of the track, erosion, changes in runoff 
patterns, or other issues that could lead to structural weakening of 
the track bed and potentially cause an accident.

Water Resources

    WAT-MM-1. To the extent practicable, the Coalition shall design 
culverts and bridges to maintain existing surface water drainage 
patterns, including hydrology for wetland areas, and not cause or 
exacerbate flooding. Project-related supporting structures (e.g., 
bridge piers) shall be designed to minimize scour (sediment removal) 
and increased flow velocity, to the extent practicable. The Coalition 
shall consider use of multi-stage culvert designs in flood-prone areas, 
as appropriate.
    WAT-MM-2. The Coalition shall design culverts and bridges on land 
managed by federal, state, or tribal agencies to comply with reasonable 
applicable agency requirements. All surface water crossings on land 
under the jurisdiction of the Ute Indian Tribe shall be designed in 
consultation with the tribe's Business Committee, Tribal Water Quality 
Department, the Tribal Fish and Wildlife Department, and the Tribal 
Water Resources Department to ensure that those crossings would not 
adversely affect the quality of surface waters on the tribe's Uintah 
and Ouray Reservation.
    WAT-MM-3. The Coalition shall design all stream realignments in 
consultation with the Corps and Utah Division of Water Rights as part 
of the Section 404 permit mitigation plan development and Utah Stream 
Alteration Program, respectively, to ensure that effects on stream 
functions are taken into account and minimized. The Coalition shall 
also consult with the Ute Indian Tribe through the tribe's Business 
Committee, Tribal Water Quality Department, the Tribal Fish and 
Wildlife Department, and the Tribal Water Resources Department 
regarding the design of stream realignments to ensure that those 
realignments would not adversely affect the quality of surface waters 
on the tribe's Uintah and Ouray Reservation. To the extent practicable, 
the Coalition shall design realigned streams to maintain existing 
planform, geomorphology, bed material and flows.
    WAT-MM-4. The Coalition shall design, construct, and operate the 
rail line and associated facilities to maintain existing water patterns 
and flow conditions and provide long-term hydrologic stability by 
conforming to natural stream gradients and stream channel alignment and 
avoiding altered subsurface flow (i.e., shallow aquifer subsurface 
flow) to the extent practicable.

[[Page 72387]]

    WAT-MM-5. During project-related construction, the Coalition shall 
minimize, to the extent practicable, soil compaction and related 
effects (e.g., increase runoff and erosion), provide surface treatments 
to minimize soil compaction (e.g., break up compacted soils during 
reclamation to promote infiltration), and take actions to promote 
vegetation regrowth after the facilities (e.g., temporary staging 
areas) are no longer needed to support construction.
    WAT-MM-6. During project-related construction, the Coalition shall 
implement erosion prevention, sediment control, and runoff control and 
conveyance BMPs to limit the movement of soils and sediment-laden 
runoff. On lands managed by federal, state, or tribal agencies, the 
Coalition shall design and implement these BMPs in consultation with 
the applicable agency. BMPs may include, but are not limited to, 
seeding disturbed ground and stockpiled soil, seed mixes, silt fences, 
sediment traps, ditch checks, and erosion monitoring. The Coalition 
shall coordinate with the appropriate land management agency, private 
landowner, or the Ute Indian Tribe to select seed mixes for use in 
restoration and reclamation activities. This may require consultation 
with range and ecology specialists to determine seed mixes and timing 
of seeding appropriate to the ecological site. Within Ashley National 
Forest, disturbed ground area, including stockpiled soil for later 
reclamation, shall be seeded to prevent erosion and the influx of weeds 
and invasive species. The Forest Rangeland Management or Ecology 
specialists shall be consulted for the appropriate seed mix and timing 
of seeding on Forest Service lands.
    WAT-MM-7. During project-related construction, the Coalition shall 
use temporary barricades, fencing, and/or flagging around sensitive 
habitats (e.g., wetlands, flowing streams) to contain project-related 
impacts within the construction area. The Coalition shall locate 
staging areas in previously disturbed sites to the extent practicable, 
avoiding sensitive habitat areas whenever possible.
    WAT-MM-8. The Coalition shall remove all project-related 
construction debris (including construction materials and soils) from 
surface waters and wetlands as soon as practicable following 
construction.
    WAT-MM-9. The Coalition shall implement stormwater BMPs to convey, 
filter, and dissipate runoff from the rail line during rail operations. 
These could include, but would not be limited to, vegetated swales, 
vegetated filter strips, streambank stabilization, and channelized flow 
dissipation, as appropriate. On lands managed by federal, state, or 
tribal agencies, the Coalition shall design and implement stormwater 
BMPs in consultation with the applicable agency.
    WAT-MM-10. During rail operations, the Coalition shall ensure that 
all project-related culverts and bridges are clear of debris to avoid 
flow blockages, flow alteration, and increased flooding. The Coalition 
shall inspect all project-related bridges and culverts semi-annually 
(or more frequently, as seasonal flows dictate) for debris accumulation 
and shall remove and properly dispose of debris promptly.
    WAT-MM-11. To address the closing of active groundwater wells and 
permanent impacts on springs, the Coalition shall consult with the 
owner, the Utah Division of Water Rights, and the Ute Indian Tribe, as 
appropriate, to attempt to replace each active well closed with a new 
well and to mitigate the water rights associated with springs, as 
practicable.
    WAT-MM-12. The Coalition shall consider potential future changes in 
precipitation patterns caused by climate change when designing surface 
water crossings (bridges and culverts) and other rail line features.

Biological Resources

    BIO-MM-1. The Coalition shall implement appropriate measures to 
reduce collision risks for birds resulting from project-related power 
communications towers. The Coalition shall incorporate the design 
recommendations in the U.S. Fish and Wildlife Service (USFWS) 
Recommended Best Practices for Communication Tower Design, Siting, 
Construction, Operation, Maintenance, and Decommissioning (USFWS 2018) 
to avoid or minimize the risk of bird mortality at communications 
towers.
    BIO-MM-2. During project-related construction, the Coalition shall 
comply with any federal, state, tribal, or local in-water work windows 
and timing restrictions for the protection of fish species, and other 
reasonable requirements of in-water work permits issued by UDWR and the 
Corps.
    BIO-MM-3. During project-related construction, the Coalition shall 
use a bubble curtain or other noise-attenuation method (e.g., wood or 
nylon pile caps) when installing or proofing pilings below the ordinary 
high water line of a fish-bearing stream to minimize underwater sound 
impacts on fish.
    BIO-MM-4. During project-related construction, the Coalition shall 
use a block-net to remove and exclude fish from in-water work areas. 
The Coalition shall deploy the block-net toward the water from land, 
with the two ends of the net maintained on shore and the middle portion 
of the net deployed in the water. Any fish handling, exclusion, and 
removal operation shall be consistent with any reasonable requirements 
of in-water permits from UDWR and the Corps.
    BIO-MM-5. The Coalition shall minimize, to the extent practicable, 
the area and duration of project-related construction activities within 
riparian areas and along streambanks. Where construction activities 
within riparian areas or along streambanks are unavoidable, the 
Coalition shall implement appropriate erosion control materials to 
stabilize soil and reduce erosion. Following the completion of project-
related construction on a segment of rail line, the Coalition shall 
promptly restore and revegetate riparian areas using native vegetation.
    BIO-MM-6. The Coalition shall design culverts and bridges to allow 
aquatic organisms to pass relatively unhindered, to the extent 
practicable.
    BIO-MM-7. The Coalition shall develop and implement a wildfire 
management plan in consultation with appropriate state, tribal, and 
local agencies, including local fire departments. The plan shall 
incorporate specific information about operations, equipment, and 
personnel on the rail line that might be of use in case a fire occurs 
and shall evaluate and include as appropriate site-specific techniques 
for fire prevention and suppression. The plan shall also include a 
commitment for the Coalition and consulting parties to revisit the plan 
on a regular basis (e.g., every 5 years; but to be determined during 
plan development) to determine if environmental conditions have changed 
(e.g., drier conditions) to the point where aspects of the plan would 
need to be revised to address those changing conditions.
    BIO-MM-8. The Coalition shall protect bald and golden eagles by 
adhering to the Bald and Golden Eagle Protection Act. In addition, the 
Coalition shall follow the USFWS National Bald Eagle Management 
Guidelines (USFWS 2007), as applicable.
    BIO-MM-9. The Coalition shall comply with the terms and conditions 
of the USFWS Biological Opinion for the protection of federally listed 
threatened and endangered plants and animals that could be affected by 
the rail line, and to ensure compliance with Endangered Species Act 
Section 7.
    BIO-MM-10. The Coalition shall implement the requirements of the 
Ute Indian Tribe for minimizing impacts on

[[Page 72388]]

wildlife, fish, and vegetation on Tribal trust lands.
    BIO-MM-11. Prior to project-related construction, the Coalition 
shall acquire and abide by the reasonable requirements of all 
appropriate federal and state permits to possess, relocate, or 
disassemble a bald or golden eagle nest, and/or work within 0.5 mile of 
a bald or golden eagle nest, regardless of whether the nest is active 
or inactive. The Coalition shall also follow the guidelines for 
avoiding and minimizing impacts set out in the Utah Field Office 
Guidelines for Raptor Protection from Human and Land Use Disturbances 
for the protection of bald and golden eagles, as applicable.
    BIO-MM-12. Rail employees engaged in routine rail line inspections 
that observe carcasses along the rail line shall remove carcasses away 
from the rail line to minimize potential eagle strikes. Carcass data 
shall be recorded, including species, location, and number, and 
submitted to UDWR. The Coalition will consult with UDWR to determine 
the best way to submit this data and the frequency at which it will be 
transmitted.
    BIO-MM-13. The Coalition shall abide by the BLM Utah Greater Sage-
Grouse Approved Resource Management Plan Amendment for approved Action 
Alternatives that affect BLM land, and will follow the reasonable 
requirements of the Utah Conservation Plan for Greater Sage-Grouse.
    BIO-MM-14. During project-related construction, the Coalition shall 
employ ecologically sound methods to remove all cleared vegetation and 
green debris from construction areas, including trees from woodland and 
timber clearing. On lands managed by federal, state, or tribal 
agencies, the Coalition shall consult with the appropriate agencies 
regarding methods for removal or cleared vegetation and green debris 
and shall implement those agencies' requirements.
    BIO-MM-15. Prior to any project-related construction, the Coalition 
shall consult with the appropriate County Weed Boards/Departments and 
the Ute Indian Tribe to develop and implement a plan to address the 
spread and control of nonnative invasive plants during project-related 
construction. For any construction activities on lands managed by 
federal, state, or tribal agencies, the Coalition shall seek input on 
the plan from the appropriate land management agency. The plan shall 
incorporate the reasonable requirements and recommendations of those 
agencies and shall identify and address (1) planned seed mixes, (2) 
weed prevention and eradication procedures, (3) equipment cleaning 
protocols, (4) revegetation methods, (5) protocols for monitoring 
revegetation, and (6) ongoing inspection of the rail right-of-way for 
noxious weeds and invasive species during rail operations.
    BIO-MM-16. If the Surface Transportation Board (Board) authorizes 
the Indian Canyon Alternative or Whitmore Park Alternative, the 
Coalition shall comply with the reasonable mitigation conditions 
imposed by the Forest Service in any special use permit allowing the 
Coalition to cross National Forest System Lands, including complying 
with the USDA Forest Service Guide to Noxious Weed Prevention Practices 
and the Ashley National Forest Noxious Weeds Management Supplement.
    BIO-MM-17. Prior to any project-related construction, the Coalition 
shall consult with the Ute Indian Tribe, USFWS, and UDWR to develop and 
implement a reclamation and revegetation plan for areas that would be 
temporarily disturbed by construction activities. For any construction 
activities on lands managed by federal, state, or tribal agencies, the 
Coalition shall seek input on the plan from the appropriate agency. The 
reclamation and revegetation plan shall incorporate the reasonable 
requirements and recommendations of those agencies and shall clearly 
identify and address (1) the areas to be reclaimed and revegetated; (2) 
the proposed reclamation and revegetation materials, methods, and 
timing; and (3) the proposed monitoring schedule and contingency plans.
    BIO-MM-18. The Coalition shall not use bird hazing (or scaring) 
techniques around documented leks in the Carbon SGMA during 
construction.
    BIO-MM-19. The Coalition shall consult with the Ute Indian Tribe, 
UDWR, OEA, and appropriate land management agencies to develop and 
implement a big game movement corridor crossing plan. The plan shall 
address the need for dedicated big game crossings of the rail line, the 
need to limit fencing (if applicable), and the need for additional data 
collection. The plan shall specifically evaluate the use of big game 
overpasses or underpasses (including standards for design), wildlife 
friendly fencing, reduced train speeds in high-risk areas, and sound 
signaling and sound barriers in collision hotspots. The plan shall use 
the latest available big game movement corridor data from UDWR and the 
Ute Indian Tribe.
    BIO-MM-20. The Coalition shall comply with the provisions of the 
Final Mitigation Approach and Agreement for Potential Impacts to 
Greater Sage-grouse executed by the Coalition and UDWR.

Geology, Soils, Seismic Hazards, and Hazardous Waste Sites

    GEO-MM-1. The Coalition shall design and construct the rail line to 
balance cut and fill earthwork quantities, to the extent practicable, 
in order to minimize the quantities of materials required to be 
excavated, transported, or placed off site.
    GEO-MM-2. The Coalition shall conduct geotechnical investigations 
to identify soils and bedrock in cut areas with potential for mass 
movement or slumping. The geologic hazard investigations shall be 
conducted in accordance with Utah Geological Survey Circular 122. Where 
appropriate, the Coalition shall implement engineering controls to 
avoid mass movement or slumping. If mass movement or slumping of soils 
or bedrock occurs during project-related construction, the Coalition 
shall promptly institute appropriate remedial actions. The Coalition 
shall periodically monitor the railbed during operations to identify 
changes related to use, cumulative effects of weight and vibration, and 
changes in underlying soils to prevent deterioration from settling, 
deformation, collapse, and erosion.
    GEO-MM-3. The Coalition shall conduct geotechnical investigations 
to identify areas within the rail right-of-way where soils with high 
corrosivity to concrete or steel could affect the rail line. The 
Coalition shall implement appropriate site-specific measures to address 
the soil corrosivity in areas identified during the geotechnical 
investigations, potentially including replacing soils with high 
corrosivity with non-corrosive engineered soils, as applicable. If soil 
materials are removed and replaced due to corrosivity to steel or 
concrete, the Coalition shall consult with the appropriate land 
management agencies to determine the sites for disposal and the 
appropriate replacement soil materials. All replacement soil materials 
shall be certified weed-free engineered material, or shall be checked 
for the presence of weeds and sprayed for weeds to prevent bringing in 
invasive species.
    GEO-MM-4. The Coalition shall conduct geotechnical studies to 
identify unmapped abandoned mines that could affect the rail line and 
shall take actions to appropriately stabilize areas where unmapped 
mines are identified.
    GEO-MM-5. The Coalition shall conduct geotechnical investigations 
to identify areas within the rail right-of-way that are at risk of 
seismically

[[Page 72389]]

induced liquefaction. The geologic hazard investigations shall be 
conducted in general accordance with Utah Geological Survey Circular 
122. The Coalition shall implement appropriate site-specific measures 
to minimize the risk of liquefaction in areas identified during the 
geotechnical investigations, including replacing soils subject to 
liquefaction with engineered soils that are not prone to liquefaction, 
as applicable. If soil materials are removed and replaced due to 
liquefaction hazards, the Coalition shall consult with the appropriate 
land management agencies to determine the sites for disposal and the 
appropriate replacement soil materials. All replacement soil materials 
shall be certified weed-free engineered material, or shall be checked 
for the presence of weeds and sprayed for weeds to prevent bringing in 
invasive species.
    GEO-MM-6. The Coalition shall design and construct any tunnels in 
accordance with applicable OSHA guidelines for underground construction 
(OSHA 2003). Conformance shall include ventilation, air monitoring, and 
emergency procedures.
    GEO-MM-7. In consultation with applicable land management agencies 
and other agencies with expertise in avalanche mitigation, the 
Coalition shall identify areas with a high risk of snow slab avalanche 
that have the potential to affect the rail line and investigate the use 
of nonstructural and structural methods to control the effects of slab 
avalanches. Nonstructural methods can include triggering and closures. 
Structural methods can include avalanche dams and retarding structures, 
starting zone structures, and avalanche sheds.
    GEO-MM-8. Prior to construction, the Coalition shall conduct 
geophysical investigations to identify risks associated with the 
Duchesne-Pleasant Valley fault that could affect the rail line.

Noise and Vibration

    NV-MM-1. Before undertaking any project-related construction 
activities, the Coalition shall, with the approval of OEA and in 
consultation with appropriate tribal and local agencies, develop and 
implement a construction noise and vibration control plan to minimize 
project-related construction noise and vibration affecting residences 
along the rail line, including noise and vibration from general 
construction equipment, specialized equipment, and tunnel construction. 
For tunnel construction in particular, the plan shall include estimates 
of construction noise and vibration levels and identify measures that 
shall be taken if predicted construction noise or vibration levels 
exceed Federal Transit Administration (FTA) criteria. The Coalition 
shall also conduct noise and vibration monitoring for receptors that 
would exceed FTA criteria. The Coalition shall designate a noise 
control officer to develop the construction noise and vibration plan, 
whose qualifications shall include at least 5 years of experience with 
major construction noise projects, and board certification from the 
Institute of Noise Control Engineering or registration as a 
Professional Engineer in Mechanical Engineering or Civil Engineering.
    NV-MM-2. The Coalition shall minimize, to the extent practicable, 
construction-related noise disturbances in residential areas. The 
Coalition shall avoid nighttime construction and pile-driving near 
residential areas and employ quieter vibratory pile-driving or noise 
curtains for project-related construction where FTA construction noise 
criteria are exceeded.
    NV-MM-3. In consultation with OEA and appropriate tribal and local 
agencies, the Coalition shall employ reasonable and feasible noise 
mitigation for receptors that would experience noise impacts at or 
greater than the regulatory analytical threshold of 65 day-night 
average sound level (DNL) and an increase of 3 A-weighted decibels 
(dBA). The design goal for noise mitigation shall be a 10 dBA noise 
reduction. Using industry standard loudspeaker testing, the building 
sound insulation performance shall be determined in accordance with 
ASTM 966-90, Standard Guide for Field Measurements of Airborne Sound 
Insulation of Building Facades and Fa[ccedil]ade Elements. The 
calculated noise reduction shall be at least 5 dBA. Should the 
calculated noise reduction be less than 5 dBA then no mitigation is 
warranted as the receptor has sufficient sound insulation.
    NV-MM-4. The Coalition shall install and properly maintain rail and 
rail beds on the rail line according to American Railway Engineering 
and Maintenance of Way Association standards and shall regularly 
maintain locomotives, keeping mufflers in good working order to control 
noise. The Coalition shall install rail lubrication systems at curves 
along the rail line where doing so would reduce noise associated with 
wheel squeal for residential or other noise-sensitive receptors. The 
Coalition shall regularly inspect and maintain rail car wheels on 
trains that operate on the rail line in good working order and minimize 
the development of wheel flats (where a round wheel is flattened, 
leading to a clanking sound when a rail car passes).

Air Quality

    AQ-MM-1. In consultation with the TriCounty Health Department and 
the Ute Indian Tribe as applicable, the Coalition shall implement 
appropriate fugitive-dust controls such as spraying water or other dust 
treatments to reduce fugitive-dust emissions created during project-
related construction activities. During project-related construction, 
the Coalition shall ensure that construction contractors offer workers 
daily transportation to the work site from a central location to 
minimize vehicular traffic on unpaved roads in the area and thereby 
reduce exhaust emissions and fugitive dust.
    AQ-MM-2. The Coalition shall ensure that all engine-powered 
equipment and vehicles used in construction, operation, and maintenance 
of the rail line are subject to a regular inspection and maintenance 
schedule in order to minimize air pollutant emissions, greenhouse gas 
emissions, and fuel consumption. Preventive maintenance activities 
shall include, but shall not be limited to, the following actions:
     Replacing oil and oil filters as recommended by 
manufacturer instructions.
     Maintaining proper tire pressure in on-road vehicles.
     Replacing worn or end-of-life parts.
     Scheduling routine equipment service checks.
    AQ-MM-3. The Coalition shall develop and implement an anti-idling 
policy for both rail construction and operations and ensure that 
equipment operators receive training on best practices for reducing 
fuel consumption to reduce project-related air emissions. The anti-
idling policy shall include required warm-up periods for equipment and 
prohibit idling beyond these periods. The policy shall define any 
exceptions where idling is permitted for safety or operational reasons, 
such as when ambient temperatures are below levels required for 
reliable operation. In addition, the policy shall include provisions 
addressing the use of technologies such as idle management systems or 
automatic shutdown features, as appropriate.
    AQ-MM-4. During project-related construction, the Coalition shall 
require that construction contractors use renewable diesel fuel to 
minimize and control greenhouse gas emissions from diesel-fueled 
construction equipment and on-road diesel trucks, to the extent 
practicable. Renewable diesel refers to biofuel that is chemically 
identical to

[[Page 72390]]

diesel derived from petroleum, meets the most recent ASTM D975 
specification for Ultra Low Sulfur Diesel, and has a carbon intensity 
no greater than 50 percent of traditional diesel. If the Coalition 
believes that renewable diesel is not available at a reasonable price 
from suppliers within 200 miles of the construction site, the Coalition 
may request an exemption from OEA to instead require construction 
contractors use traditional diesel fuel with the highest biodiesel 
content reasonably available. The Coalition shall document the 
availability and price of renewable diesel to meet project demand in 
consultation with OEA.
    AQ-MM-5. The Coalition shall consider procuring alternative engine 
and fuel technologies, e.g., hybrid-electric diesel equipment, for 
construction and operation of the rail line to reduce greenhouse gas 
emissions.
    AQ-MM-6. The Coalition shall evaluate the feasibility of installing 
solar and wind microgeneration technologies on site offices, lodgings, 
and other project-related facilities to reduce the use of grid or 
privately generated electricity to reduce greenhouse gas emissions. As 
part of its evaluation, the Coalition shall consider the suitability of 
site conditions and location of solar and wind generation and the 
technical and economic feasibility of supplementing site electricity 
demands with renewable power.
    AQ-MM-7. The Coalition shall post signage and/or fencing during 
project-related construction, including tunnel construction, to ensure 
that members of the public would be unable to enter areas within the 
construction easement that could experience temporary adverse air 
quality impacts.
    AQ-MM-8. To the extent practicable, the Coalition shall avoid 
conducting project-related construction activities that could result in 
the emission of ozone precursors within the Uinta Basin Ozone 
Nonattainment Area in January and February to minimize emissions of 
ozone precursor chemicals in the nonattainment area. Construction-
related activities covered by this measure include the use of diesel-
powered construction equipment and the transportation by truck of 
materials to construction sites. If the Coalition believes that 
project-related construction activities that could result in the 
emission of ozone precursors in the Uinta Basin Ozone Nonattainment 
Area during January and February cannot practically be avoided during 
one or more years of the construction period, the Coalition shall 
consult with OEA and UDEQ's Air Quality Division to identify and 
implement other appropriate ozone-reduction activities for those 
months.

Energy

    ENGY-MM-1. The Coalition shall design any project-related road 
realignments to allow continued vehicle access to existing fixed energy 
facilities, such as oil pads, during and following construction of the 
rail line. The Coalition shall work with the owners of the energy 
facilities to coordinate continued access during construction and rail 
operations.
    ENGY-MM-2. The Coalition shall ensure that any oil and gas-
producing wells within the rail right-of-way are plugged and abandoned 
in accordance with Utah Administrative Code Rule R649-3-24, Plugging 
and Abandonment of Wells. The Coalition shall consult with the Utah 
Division of Oil, Gas, and Mining prior to undertaking any construction 
activities that could affect existing wells and shall follow that 
agency's reasonable recommendations regarding appropriate safety 
procedures for the abandonment of wells.
    ENGY-MM-3. The Coalition shall design any crossings or relocations 
of pipelines or electrical transmission lines in accordance with 
applicable Utah Division of Public Utilities' regulations and 
guidelines. The Coalition shall consult with appropriate utility 
providers to develop a plan to ensure that construction activities that 
could affect existing electrical transmission lines or energy pipelines 
avoid any interruption of utility service to customers to the extent 
possible.
    ENGY-MM-4. The Coalition shall consult with oil and gas operators 
of existing facilities (e.g., wells, well pads, gathering pipelines, 
access roads) that would be affected by construction and operation of 
the rail line during the final engineering and design phase for the 
rail line and prior to undertaking project-related construction 
activities to develop appropriate measures to mitigate impacts on these 
facilities. These measures may include, but are not limited to, 
adjusting the location of construction activities to avoid oil and gas 
facilities or relocating the facilities if impacts cannot be avoided 
during construction and operations.

Paleontological Resources

    PALEO-MM-1. The Coalition shall contract with a qualified 
paleontologist to develop and implement a paleontological resources 
monitoring and treatment plan to mitigate potential impacts on 
paleontological resources on lands classified as Potential Fossil Yield 
Classification 3, 4 or 5. The plan shall include the following 
requirements:
    A preconstruction survey where appropriate to describe and recover 
paleontological resources found on the surface.
    Monitoring of ground-disturbing activities during construction to 
recover paleontological resources, including inspection of spoils piles 
created by tunnel construction.
    Identification, preparation, and documentation of fossils collected 
during surveys or monitoring.
    Curation and deposition of significant paleontological resources 
into a federally approved repository.
    Increasing public awareness about the scientific importance of 
paleontological resources by developing web-based education material, 
interpretive displays, or other means.

Land Use and Recreation

    LUR-MM-1. The Coalition shall consult with the Ute Indian Tribe 
during the final engineering and design phase of the rail line and 
prior to undertaking any project-related construction to ensure that 
construction and operation of the rail line would not significantly 
impact land uses on land under the tribe's jurisdiction.
    LUR-MM-2. The Coalition shall implement any mitigation measures 
imposed by the Ute Indian Tribe as a condition of a right-of-way across 
Tribal trust lands.
    LUR-MM-3. If the Indian Canyon Alternative or the Wells Draw 
Alternative is authorized by the Board, the Coalition shall adhere to 
the reasonable mitigation conditions imposed by BLM in any right-of-way 
granted by BLM allowing the Coalition to cross BLM lands and shall 
ensure that construction and operation of the rail line is in 
compliance with applicable Resource Management Plans, including any 
potential amendments to those plans, for BLM lands that the rail line 
would cross.
    LUR-MM-4. If the Indian Canyon Alternative or the Whitmore Park 
Alternative is authorized by the Board, the Coalition shall adhere to 
the reasonable mitigation conditions imposed by the Forest Service in 
any special use permit allowing the Coalition to cross National Forest 
System Lands. These reasonable mitigation conditions may include 
identifying areas where use and storage of petroleum products, 
herbicides, and other hazardous materials should be avoided during 
construction and operation. Conditions may also include avoiding or 
minimizing impacts on horse pastures to maintain adequate

[[Page 72391]]

pasture size and replacing pasture fences removed during construction, 
as determined appropriate through consultation with the Forest Service. 
The Coalition shall consult with the Forest Service to ensure that 
construction and operation of the rail line complies with Ashley Forest 
Land and Resource Management Plan, including any existing or potential 
amendments to that plan, and with the Forest Service 2001 Roadless 
Rule.
    LUR-MM-5. The Coalition shall adhere to the reasonable mitigation 
conditions imposed by the State of Utah School and Institutional Trust 
Lands Administration (SITLA) in any right-of-way grant allowing the 
Coalition to cross SITLA lands.
    LUR-MM-6. If the Indian Canyon Alternative or the Whitmore Park 
Alternative is authorized by the Board, the Coalition shall obtain a 
right-of-way from the U.S. Bureau of Indian Affairs (BIA) to cross 
Tribal trust lands and shall implement the reasonable terms and 
conditions imposed by BIA in any decision granting a right-of-way on 
Tribal trust lands.
    LUR-MM-7. Prior to project-related construction, the Coalition 
shall consult with BLM, the Forest Service, the Ute Indian Tribe, 
SITLA, and local agencies as appropriate, to develop a plan to limit, 
to the extent practicable, impacts on recreational resources under 
those agencies' management or jurisdiction, including roads used for 
recreation and recreational site access. The Coalition shall also 
consult with private landowners to develop appropriate measures to 
mitigate impacts on land uses and recreational activities on private 
land. The Coalition shall develop the plan prior to completing the 
final engineering plans for the rail line and following the above-
mentioned consultation to determine the location of all public roads 
used as access points to a recreation area that would be crossed by the 
rail line. The plan shall designate temporary access points if main 
access routes must be obstructed during project-related construction. 
The plan shall also include the number and location of access points as 
decided during consultation with the applicable agencies.
    LUR-MM-8. The Coalition shall coordinate with owners of properties 
used for recreation during project-related right-of-way acquisition 
negotiations to provide adequate private road at-grade crossings to 
ensure that recreationists maintain access to and movement within 
recreational properties and areas. The Coalition shall coordinate with 
UDWR, the Ute Indian Tribe, SITLA, BLM, and the Forest Service, as 
appropriate, to develop reasonable measures to maintain access to 
hunting and recreation access points.
    LUR-MM-9. The Coalition shall consult with appropriate land 
management agencies to develop appropriate measures to mitigate impacts 
of construction and operation of the rail line on grazing allotments on 
public lands. These measures could include improving forage production 
in other areas of affected allotments through implementation of 
vegetation treatment projects, including sagebrush reduction treatments 
and/or seedings, to increase forage production and maintain 
preconstruction carrying capacity.
    LUR-MM-10. The Coalition shall install cattle guards, livestock 
exclusion fencing, or other design features, as appropriate, within 
grazing areas along the rail line to prevent livestock from entering 
rail tunnels or congregating at tunnel entrances or in other areas in 
the rail right-of-way that could be hazardous to livestock. The 
Coalition shall work with landowners and land management agencies, as 
applicable, to identify appropriate locations for cattle guards, 
fencing, and other design features and to plan for ongoing maintenance 
of any of these features.
    LUR-MM-11. The Coalition shall consider installing cattle 
underpasses along the right-of-way, as appropriate and practical. These 
underpasses could also be used by wildlife. The Coalition shall work 
with landowners to identify appropriate locations for cattle passes.
    LUR-MM-12. The Coalition shall coordinate with landowners and 
holders of conservation easements crossed by the rail line to develop 
appropriate measures to mitigate impacts of construction and operation 
of the rail line on affected conservation easements.

Visual Resources

    VIS-MM-1. The Coalition shall install visual barriers, as 
appropriate, to obstruct views of project-related construction 
activities and to maintain the privacy of adjacent landowners.
    VIS-MM-2. The Coalition shall direct nighttime lighting, if used 
during construction, onto the immediate construction area during 
project-related construction to minimize impacts from shining lights on 
sensitive viewers, sensitive natural resource areas, recreational 
areas, and roadway or trail corridors.
    VIS-MM-3. During project-related construction, the Coalition shall 
grade contours to create slopes with undulations and topographical 
variations that mimic natural terrain, where possible. If this grading 
practice results in larger areas of cut or fill that would further 
degrade natural features of scenic value, the Coalition shall not 
implement this measure at those locations. For example, a steeper cut 
slope may be more desirable than removing many trees to create more 
rounded terrain. The Coalition shall grade and restore roadbeds that 
are abandoned because of roadway relocation due to project-related 
construction to mimic the adjacent natural landscape and revegetate the 
roadway surface.
    VIS-MM-4. The Coalition shall design bridges, communications 
towers, and other project-related features to complement the natural 
landscape and minimize visual impacts on the landscape. To the extent 
practicable, the Coalition shall use paint colors that are similar to 
colors in the surrounding landscape and shall implement design features 
that mimic natural materials (e.g., stone or rock surfacing) and colors 
to reduce visibility and to blend better with the landscape.
    VIS-MM-5. If the Board authorizes construction and operation of the 
Indian Canyon Alternative or Whitmore Park Alternative, the Coalition 
shall implement the reasonable requirements of any Forest Service 
decision permitting the rail line within Ashley National Forest and 
shall ensure that construction and operation on National Forest System 
lands complies with the requirements for visual resources management in 
Ashley National Forest Land and Resource Management Plan, including any 
potential amendments to that plan.
    VIS-MM-6. If the Board authorizes the Indian Canyon Alternative or 
the Wells Draw Alternative, the Coalition shall consult with BLM during 
all phases of project design to ensure that construction and operation 
of the rail line on BLM lands would be in compliance with all 
applicable BLM Visual Resource Management requirements and procedures. 
The Coalition shall incorporate visual design considerations into the 
design of the rail line on BLM lands; undertake additional visual 
impact analyses on BLM lands, as appropriate, in consultation with BLM 
and considering applicable BLM Visual Resources Inventories; and 
implement appropriate measures to mitigate visual impacts on BLM lands, 
as requested by BLM.
    VIS-MM-7. If the Board authorizes the Indian Canyon Alternative or 
the Wells Draw Alternative, the Coalition shall, in consultation with 
BLM, implement appropriate additional measures to minimize light 
pollution on BLM lands, potentially including limiting the height of 
light poles,

[[Page 72392]]

limiting times of lighting operations, limiting wattage intensity for 
lighting, and constructing light shields, as applicable.
    VIS-MM-8. The Coalition shall implement the requirements of the Ute 
Indian Tribe regarding the design of the rail line on Tribal trust 
lands for minimizing visual disturbances to Tribal trust lands.

Socioeconomics

    SOCIO-MM-1. The Coalition shall negotiate compensation--for direct 
loss of agricultural land in the right-of-way and the indirect loss of 
agricultural land from severance--with each landowner whose property 
would be affected by construction and operation of the rail line, 
consistent with applicable state law. The Coalition shall assist 
landowners in developing alternative agricultural uses for severed 
land, where appropriate. The Coalition shall apply a combination of 
alternative land use assistance and compensation as agreed upon during 
right-of-way negotiations, pursuant to state law. Where capital 
improvements are displaced by construction or operation of the rail 
line, the Coalition, in consultation with the landowner and relevant 
agencies, such as water districts or the local Natural Resources 
Conservation Services office, shall relocate or replace these 
improvements or provide appropriate compensation based on the fair 
market value of the capital improvements being displaced, consistent 
with applicable state law.
    SOCIO-MM-2. The Coalition shall consult with landowners to limit 
the loss of access to properties during rail construction. The 
Coalition also shall consult with landowners to determine the location 
of property access roads that would be crossed by the rail line. The 
Coalition shall install temporary property access points for landowner 
use if main access routes must be obstructed during project-related 
construction. The Coalition shall coordinate with landowners while 
negotiating the railroad right-of-way easement to identify key access 
points that would be affected by construction and operation of the rail 
line. The Coalition shall install at-grade crossings and relocate roads 
to maintain adequate access to and movement within properties after 
rail operations begin.

Environmental Justice

    EJ-MM-1. The Coalition shall consult with the Ute Indian Tribe 
regarding potential impacts on the Pariette cactus and Uinta Basin 
hookless cactus and shall abide by the requirements of the tribe's 
Sclerocactus Management Plan and the tribe's other requirements and 
recommendations for project-related activities on Tribal trust lands, 
which may include soil assessments, complying with mitigation measures 
to be developed in consultation with the tribe, and contributing to a 
conservation mitigation fund, as appropriate.
    EJ-MM-2. The Coalition shall consult with the Ute Indian Tribe 
regarding the final design of the rail line, including the locations 
and designs of rail-related features, such as sidings, communications 
towers, culverts, bridges, and warning devices, to ensure that impacts 
on tribal members and land and resources under the tribe's jurisdiction 
are minimized.

Monitoring and Compliance

    MC-MM-1. The Coalition shall submit quarterly reports to OEA on the 
progress of, implementation of, and compliance with all Board-imposed 
mitigation measures. The reporting period for these quarterly reports 
shall begin on the date of the Board's final decision authorizing the 
project until 1 year after the Coalition has completed project-related 
construction activities. The Coalition shall submit copies of the 
quarterly reports within 30 days following the end of each quarterly 
reporting period and distribute the reports to appropriate federal, 
state, local, and tribal agencies, as specified by OEA.

[FR Doc. 2021-27560 Filed 12-20-21; 8:45 am]
BILLING CODE 4915-01-P