[Federal Register Volume 89, Number 161 (Tuesday, August 20, 2024)]
[Notices]
[Pages 67506-67510]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2024-18538]


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SURFACE TRANSPORTATION BOARD

[Docket No. FD 36575]


Townline Rail Terminal, LLC--Construction and Operation 
Exemption--In Suffolk County, N.Y.

    By petition filed November 17, 2022, Townline Rail Terminal, LLC 
(Townline), an affiliate of CarlsonCorp, Inc. (CarlsonCorp), seeks an 
exemption under 49 U.S.C. 10502 from the prior approval requirements of 
49 U.S.C. 10901 to construct and operate a new rail line in Smithtown, 
Suffolk County, N.Y. (the Line). (Townline Pet. 2, Nov. 17, 2022.) The 
Supervisor of the Town of Smithtown, N.Y. (Smithtown), filed a letter 
in support of Townline's petition. The Board also received numerous 
filings from community members and associations of community members 
opposing the petition.
    On January 12, 2023, the Board instituted a proceeding under 49 
U.S.C. 10502. The Board's Office of Environmental Analysis (OEA) issued 
a Draft Environmental Assessment (Draft EA) on January 5, 2024, 
examining the potential environmental and historic impacts of 
Townline's project and requesting public comments, pursuant to the 
National Environmental Policy Act (NEPA), 42 U.S.C. 4321-4370m(11), and 
related environmental laws, including Section 106 of the National 
Historic Preservation Act, 54 U.S.C. 306108. After considering the 
comments received in response to the Draft EA, OEA issued a Final 
Environmental Assessment (Final EA) on June 7, 2024. Based on its 
analysis, OEA recommended environmental conditions to avoid, minimize, 
or mitigate the potential environmental impacts of the proposed 
construction and operation. OEA concluded that, with the mitigation 
recommended in the Final EA, the project would have no or negligible 
adverse environmental impacts.
    After considering the entire record, including the transportation 
merits and environmental issues, the Board will grant Townline's 
petition for exemption, subject to the recommended environmental 
mitigation measures in the Final EA.

Background

    According to Townline, the Line would extend approximately 5,000 
feet on a portion of CarlsonCorp's industrial property \1\ and would 
run parallel to the Long Island Railroad (LIRR) Port Jefferson Line. 
(Townline Pet. 2, Nov. 17, 2022.) Townline states that the New York & 
Atlantic Railway (NYAR) operates on the Port Jefferson Line and has 
entered into an agreement with CarlsonCorp on behalf of LIRR to install 
a new switch that would connect the Line to the Port Jefferson Line. 
(Id. at 2-3.) Townline also states that it would interchange with NYAR 
and anticipates

[[Page 67507]]

that it would operate one round-trip train per day, five days per week. 
(Id. at 5.)
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    \1\ CarlsonCorp currently operates a state-permitted waste 
transfer facility on its property. (Townline Pet. 3, Nov. 17, 2022.)
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    According to Townline, the purpose of the project is to provide 
common carrier rail service to a planned truck-rail transloading 
facility, which Townline states would be subject to state and local 
regulation.\2\ (Id. at 3.) CarlsonCorp would independently construct 
the transloading facility to handle the transportation of construction 
and demolition debris and incinerator ash from Long Island. (Id. at 3-
4.) Townline explains that rail service to the planned facility is 
needed because the Brookhaven Landfill, the last remaining public 
landfill on Long Island to accept construction and demolition debris, 
is scheduled to close, and construction of new landfills to accept ash 
and construction and demolition debris is nearly prohibited under New 
York law. (Id. at 3.) Townline adds that the Line also could serve 
other local shippers, including Covanta Energy, Kings Park Ready Mix 
Corp, Kings Park Materials, and Pelkowski Precast. (Id. at 4.)
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    \2\ By decision served February 23, 2024, the Board denied a 
petition for declaratory order filed by Smithtown regarding the 
transloading facility because the case law addressing the extent of 
the Board's jurisdiction over transloading activities is well-
established. Town of Smithtown--Pet. for Declaratory Order, FD 36575 
(Sub-No. 1), slip op. at 3 (STB served Feb. 23, 2024). The Board 
also declined Smithtown's request that the Board define in the 
abstract what may constitute a reasonable request for transportation 
of hazardous materials by Townline under 49 U.S.C. 11101(a). Id.
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    On November 8, 2022, Smithtown filed a letter stating that it 
supports Townline's petition in light of the need to find alternative 
means for waste disposal given the impending closure of the Brookhaven 
Landfill. The Board also received numerous filings from community 
members and associations of community members in opposition to the Line 
and the planned facility.\3\ (See, e.g., Townline Ass'n Comment, Feb. 
1, 2023; Commack Cmty. Ass'n Comment, Feb. 21, 2023; Fort Salonga Ass'n 
Comment, Feb. 21, 2023; Russo Opp'n Statement, Feb. 27, 2023; Townline 
Ass'n Comment, Sept. 11, 2023.)
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    \3\ These community comments express concerns about potential 
environmental impacts and explain that the Line and the planned 
transload facility would be located in a residential area and near 
schools. (E.g., Townline Ass'n Comment, June 21, 2023.) Residents 
also express concerns about impacts on property values, (see, e.g., 
Townline Ass'n Comment 12, Apr. 10, 2023), traffic congestion, 
(e.g., Townline Ass'n Comment 5, Apr. 17, 2023), and other issues, 
such as possible effects of the project on air, light, sound, and 
water, and what some commenters describe as the existing 
environmental burden on the area, (e.g., Townline Ass'n Comment 14, 
Mar. 6, 2023; Townline Ass'n Comment 5-7, Mar. 13, 2023). As 
discussed below, (see infra pp. 4-6), OEA has evaluated the 
potential environmental and historic impacts of the project, 
addressing concerns such as those raised by the community and 
recommending environmental mitigation measures, as appropriate.
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    On April 4, 2023, Townline Association, Inc., an association of 
local residents and property owners, moved to dismiss the petition for 
exemption, arguing that the Board lacks jurisdiction over the project, 
or in the alternative, that the project is not appropriate for the 
exemption process. By decision served November 15, 2023, the Board 
denied that motion.
    On July 18, 2024, Townline Association filed a petition with the 
Board seeking a Supplemental Environmental Assessment (Supplemental EA) 
or an Environmental Impact Statement (EIS), requesting that OEA ``take 
a second hard look'' at potential impacts of the project on 
groundwater. (Townline Ass'n Pet. 1, 5, July 18, 2024.) Townline filed 
a reply on July 26, 2024, arguing, among other things, that the 
petition should be rejected because it fails to present any 
``significant new information.'' (Townline Reply 15, July 26, 2024).

Discussion

    Rail Transportation Analysis. The construction of new rail lines 
requires prior Board authorization through issuance of a certificate 
under 49 U.S.C. 10901 or, as requested here, through an exemption under 
49 U.S.C. 10502 from the prior approval requirements of 49 U.S.C. 
10901. Section 10901(c) directs the Board to authorize rail line 
construction proposals unless it finds the proposal ``inconsistent with 
the public convenience and necessity.'' See Alaska R.R.--Constr. & 
Operation Exemption--a Rail Line Extension to Port MacKenzie, Alaska, 
FD 35095, slip op. at 5 (STB served Nov. 21, 2011), aff'd sub nom. 
Alaska Survival v. STB, 705 F.3d 1073 (9th Cir. 2013). Under 49 U.S.C. 
10502(a), the Board shall, to the maximum extent consistent with U.S. 
Code Title 49, subtitle IV, part A, exempt a transaction from the 
detailed application procedures of 49 U.S.C. 10901 when it finds that: 
(1) those procedures are not necessary to carry out the rail 
transportation policy (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.
    Based on the record in this proceeding, the Board concludes that 
the proposed construction and operation qualifies for an exemption from 
the 49 U.S.C. 10901 prior approval requirements. The requested 
exemption would connect CarlsonCorp's planned transloading facility to 
the LIRR's Port Jefferson Line, thus creating a rail option for 
transporting incinerator ash and construction and demolition debris 
from the planned facility off of Long Island and filling a need raised 
by the impending closure of the Brookhaven landfill. Providing such an 
option would advance ``the development and continuation of a sound rail 
transportation system with effective competition . . . with other 
modes, to meet the needs of the public,'' 49 U.S.C. 10101(4), and help 
``ensure effective competition and coordination between rail carriers 
and other modes,'' 49 U.S.C. 10101(5). Townline likewise states that it 
sees potential to provide rail service for Covanta Energy, a 
neighboring waste-to-energy facility that currently ships approximately 
12,000 truckloads of incinerator ash per year to the Brookhaven 
Landfill. (Townline Pet. 3-4, Nov. 17, 2022.) Townline explains that it 
could provide a rail option for Covanta Energy to find new disposal 
options off of Long Island when the Brookhaven Landfill closes, and a 
rail option for certain other shippers in the vicinity of the Line, 
which currently use trucks to receive and ship commodities such as 
cement powder, sand, gravel, concrete, and aggregates. (Id. at 4.) By 
supporting these truck-to-rail diversions, the Line would not only 
advance the policies at 49 U.S.C. 10101(4) and (5), but also increase 
overall energy efficiency, thereby encouraging and promoting energy 
conservation in furtherance of 49 U.S.C. 10101(14).
    Moreover, by minimizing the time and administrative expense 
associated with obtaining Board approval under the Board's formal 
construction application procedures, the requested exemption would 
provide for expeditious regulatory decisions, 49 U.S.C. 10101(2); 
reduce regulatory barriers to enter the industry, 49 U.S.C. 10101(7); 
and provide for the expeditious handling and resolution of proceedings, 
49 U.S.C. 10101(15). Other aspects of the RTP would not be adversely 
affected. Further, no issues about the Line's current or future 
financial viability have been raised.
    Regulation of the proposed construction and operation is not 
necessary to protect shippers from an abuse of market power. The 
construction and operation of the Line would enhance competition by 
providing a new rail option for CarlsonCorp, Covanta Energy, and other 
local shippers, including Kings Park

[[Page 67508]]

Ready Mix Corp, Kings Park Materials, and Pelkowski Precast.\4\
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    \4\ Because regulation of the proposed construction and 
operation is not needed to protect shippers from the abuse of market 
power, the Board need not determine whether the transaction is 
limited in scope. 49 U.S.C. 10502(a)(2).
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    For these reasons, the Board concludes that the evidence on the 
transportation-related aspects of this case demonstrates that the 
proposed construction and operation of the Line qualifies for an 
exemption from the prior approval requirements of 49 U.S.C. 10901.
    Environmental Analysis. NEPA requires federal agencies to examine 
the environmental effects of proposed federal actions and to inform the 
public concerning those effects. Balt. Gas & Elec. Co. v. Nat. Res. 
Def. Council, 462 U.S. 87, 97 (1983). Under NEPA and related 
environmental laws, the Board must consider significant potential 
beneficial and adverse environmental impacts in deciding whether to 
authorize a railroad construction project as proposed, deny the 
proposal, or grant it with conditions (including environmental 
mitigation conditions). Lone Star R.R.--Track Constr. & Operation 
Exemption--in Howard Cnty., Tex., FD 35874, slip op at 4 (STB served 
Mar. 3, 2016). While NEPA prescribes the process that must be followed, 
it does not mandate a particular result. Robertson v. Methow Valley 
Citizens Council, 490 U.S. 332, 350 (1989). Once the adverse 
environmental effects have been adequately identified and evaluated, an 
agency may conclude that ``other values outweigh the environmental 
costs.'' Id.
    The Environmental and Historic Review Process. On January 5, 2024, 
OEA issued for public review and comment a Draft EA addressing in 
detail the potential environmental impacts of the proposed construction 
and operation of the Line.\5\ The Draft EA analyzed a number of 
environmental issues, including transportation, land use and zoning, 
energy, air quality and climate change, noise and vibration, biological 
resources, water resources, cultural resources, hazardous materials 
release sites, environmental justice, and cumulative and other impacts. 
OEA recommended preliminary mitigation based on the results of its 
environmental analysis and agency consultation. (Draft EA 20, 60.) OEA 
explained that because the 5,000-foot Line would be built in an 
existing industrial area, there would be fewer environmental and 
historic impacts than would be the case with construction of an 
entirely new right-of-way.\6\ (Id. at i, iii.) It acknowledged that 
Long Island is a sole-source aquifer region, with groundwater supplying 
almost all drinking water, but found that the proposed project would 
have no impacts on groundwater. (Id. at 48-49.) OEA concluded that the 
proposed construction and operation would have negligible impacts to 
all resource areas evaluated except biological resources, and that 
impacts to biological resources could be appropriately minimized with 
the mitigation recommended in the Draft EA.\7\ (Id. at iii.) The 
mitigation recommended by OEA in the Draft EA included 11 voluntary 
mitigation conditions proposed by Townline and two additional 
mitigation measures developed by OEA to address potential environmental 
impacts of the proposed project related to biological resources and 
hazardous materials release sites. (Id. at 60, 63-64.)
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    \5\ Based on information provided by Townline and comments from 
various agencies and tribes, OEA determined that a full EIS was not 
necessary. (See Draft EA 8-9.) Moreover, after considering the 
project's purpose and need, the information provided by Townline, 
agency comments, and OEA's independent analysis, OEA concluded that 
the proposed construction and operation was the only reasonable and 
feasible build alternative. Accordingly, the Draft EA addressed only 
the proposed action and a no-action alternative. (See Draft EA ii, 
19.)
    \6\ OEA found that the proposed construction and operation would 
have no effect on historic properties because there are no historic 
properties present in the project area. (See id. at 52.)
    \7\ Specifically, OEA determined that construction and operation 
of the Line may affect the northern long-eared bat (NLEB), a 
federally listed endangered species, through the clearing of or 
disturbance to forested habitat, temporary construction noise and 
lighting, and operational lighting and noise. (Draft EA iii.) OEA's 
recommended mitigation included restrictions on construction-related 
tree removal and the use of lighting both during construction and 
train operation, and measures to minimize and mitigate soil 
compaction. (Id. at 62-63; see also Final EA 64 (recommending 
additional lighting restrictions).) OEA concluded that with these 
mitigation measures, and due to existing habitat conditions, the 
proposed construction and operation may affect but is unlikely to 
adversely affect the NLEB. (Draft EA iii; see also id. at 43 
(explaining that all vegetated habitats within the study area 
exhibit substantial evidence of historical and ongoing disturbance, 
as well as high levels of human presence due to adjacent industrial 
site operations).)
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    OEA received a total of 105 comments on the Draft EA from 
individuals, citizen associations, and agencies. (Final EA 12; id., 
App. G at G-31 to G-35 (Table 2).) Of those comments, OEA determined 
that 41 were substantive enough to warrant a response in the Final EA. 
(Final EA 12.) In the Final EA, served June 7, 2024, OEA responded to 
the substantive comments, individually or in groups, explaining its 
analyses on the issues raised in the comments. (Final EA, App. G at G-
1.) Where appropriate, OEA clarified and corrected information in the 
Draft EA. (Id.) In addition, for biological resources, after 
considering the public comments on the Draft EA, OEA added one new 
mitigation measure regarding lighting. (Final EA 62, 64; see also supra 
note 8.) OEA concluded that, with the mitigation recommended in the 
Final EA, the proposed construction and operation would have no or 
negligible adverse impacts on all resources evaluated. (Final EA iii.)
    The Board's Analysis of the Environmental Issues. The Board is 
satisfied that OEA has taken the requisite hard look at the potential 
environmental impacts associated with the proposed construction and 
operation of the Line. The Draft EA and Final EA adequately identify 
and assess the environmental impacts discovered during the course of 
the environmental review and include appropriate environmental 
mitigation to avoid or minimize potential environmental impacts. 
Moreover, Townline Association's July 2024 petition does not show that 
a Supplemental EA is required,\8\ as it merely reiterates concerns 
Townline Association previously raised during the environmental review 
regarding potential groundwater impacts and prior sand mining on 
CarlsonCorp's property. These issues were specifically addressed in the 
Final EA. (Final EA, App. G at G-23 to G-24, G-30.) Accordingly, the 
Board will deny Townline Association's July 2024 petition. The Board 
further finds that OEA properly determined that, with the recommended 
environmental mitigation measures, the proposed project will not have 
potentially significant environmental impacts, and that preparation of 
an EIS is unnecessary.\9\ Accordingly, the Board adopts the analysis 
and conclusions made in the Draft EA (as modified by the Final EA) and 
Final EA, including the final recommended mitigation measures,

[[Page 67509]]

which are set forth in the Appendix to this decision.
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    \8\ Agencies should supplement EAs if ``[t]here are substantial 
new circumstances or information about the significance of the 
adverse effects that bear on the analysis.'' 40 CFR 
1501.5(h)(1)(ii); cf. City of Olmsted Falls v. FAA, 292 F.3d 261, 
274 (D.C. Cir. 2002) (``[N]ew information [must] `provide[ ] a 
seriously different picture of the environmental landscape.''' 
(quoting Wisconsin v. Weinberger, 745 F.2d 412, 418 (7th Cir. 
1984))).
    \9\ In both the Draft EA and Final EA, OEA details the reasons 
it granted Townline's request for a waiver of the preparation of an 
EIS. (See Draft EA 8-9; Final EA, App. G at G-2 to G-3.) The Board 
finds that OEA's decision is both substantiated and in compliance 
with the applicable regulations. See 49 CFR 1105.6(d). The comments 
filed by the Fort Salonga and Townline Association provide no basis 
for revisiting OEA's decision to prepare an EA here. (See Fort 
Salonga Ass'n Comment 2, Feb. 21, 2023; Townline Ass'n Comment, Feb. 
14, 2023 (Filing ID 306144); Townline Ass'n Comment, Feb. 5, 2024; 
Townline Ass'n Pet., July 18, 2024.)
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Conclusion

    Construction and operation of the Line will connect CarlsonCorp's 
planned transloading facility to the interstate rail network, thereby 
supporting the shipment by rail of waste material from that facility 
off of Long Island. It will also provide a rail option to other 
shippers in the vicinity of the Line. With OEA's final recommended 
mitigation measures, there will be no potential for significant 
environmental impacts; indeed, the Line--which will be less than a mile 
long and located within an existing industrial area--will facilitate 
the diversion of traffic from truck to rail, thereby increasing overall 
energy efficiency and reducing emissions from trucks. After carefully 
considering the various rail transportation and environmental issues 
and the record as a whole, the Board finds that the petition for 
exemption to allow construction and operation of the Line should be 
granted, subject to compliance with the environmental mitigation 
measures set forth in the Appendix to this decision.
    This action, as conditioned, will not significantly impact the 
quality of the human environment or the conservation of energy 
resources.
    It is ordered:
    1. Townline's petition for an exemption under 49 U.S.C. 10502 from 
the prior approval requirements of 49 U.S.C. 10901 to construct and 
operate the Line is granted as discussed above.
    2. The Board adopts the environmental mitigation measures set forth 
in the Appendix to this decision and imposes them as conditions to the 
exemption granted here.
    3. Townline Association's petition seeking a supplemental 
environmental review is denied.
    4. Notice will be published in the Federal Register.
    5. Petitions for reconsideration must be filed by September 4, 
2024.
    6. This decision is effective on the date of service.

    Decided: August 14, 2024.

    By the Board, Board Members Fuchs, Hedlund, Primus, and Schultz.
Regena Smith-Bernard,
Clearance Clerk.

Appendix

Land Use and Zoning

    VM-Land Use and Zoning-01. Townline and its contractor(s) will 
consult, as necessary, with directly abutting landowners for 
coordination of construction schedules and temporary access during 
project-related construction.

Air Quality and Climate Change

    VM-Air Quality-01. Townline's contractor(s) will comply with the 
dust control permitting requirements of Suffolk County, Smithtown, 
and New York State Department of Environmental Conservation to the 
maximum extent practicable to reduce fugitive dust emissions created 
during project-related construction. Townline will also require its 
construction contractor(s) to regularly operate water trucks on haul 
roads to reduce dust generation.
    VM-Air Quality-02. Townline will work with its contractor(s) to 
ensure project-related 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.

Noise and Vibration

    VM-Noise-01. Townline will comply with Federal Railroad 
Administration regulations (49 CFR part 210) establishing decibel 
limits for train operation.
    VM-Noise-02. Townline 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.

Biological Resources

    VM-Biological-01. Townline will not conduct construction-related 
tree removal for the Proposed Action during the Northern Long-eared 
Bat (NLEB) active season (March 1 to November 30) consistent with 
New York State Department of Environmental Conservation's NLEB 
active season for Suffolk County.
    VM-Biological-02. During project-related construction, Townline 
will take steps to reduce the unnecessary removal of bat habitat by 
limiting tree removal to only the areas necessary to safely 
construct and operate the rail line, marking the limits of tree 
clearing through the use of flagging or fencing, and ensuring that 
construction contractors understand clearing limits and how they are 
marked in the field.
    VM-Biological-03. During project-related construction, Townline 
will direct any temporary lighting away from suitable NLEB habitat 
during the active season for this species (March 1 to November 30). 
Townline will use downward-facing, full cut-off lens lights for any 
temporary lighting used during construction of the rail line.
    VM-Biological-04. During project-related rail operations, 
Townline will use downward-facing, full cut-off lens lights (with 
the same intensity or less for replacement lighting) for the 
proposed permanent lights.
    VM-Biological-05. Townline will require its contractor(s) to 
comply with the requirements of the Migratory Bird Treaty Act as 
applicable. The following measures will be taken by Townline and/or 
its contractor(s):
    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.
    If such activities must be scheduled to start during the 
migratory bird breeding season, Townline will not take steps to 
prevent migratory birds from establishing nests in the potential 
impact area. Townline or its agents will not haze or exclude nest 
access for migratory birds and other sensitive avian species.
    If such 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 seven 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.
    If nesting birds are found during the survey, Townline 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.
    MM-Biological-01. During project-related construction, Townline 
will minimize, to the extent practicable, soil compaction in 
temporarily disturbed areas, provide surface treatments (e.g., break 
up compacted soil) for any compacted soils, and take actions to 
promote vegetation regrowth.
    MM-Biological-02. Townline's permanent lighting will consist of 
2.0 footcandles at a height not to exceed 25 feet.

Hazardous Materials Release Sites

    VM-Hazardous Materials Sites-01. Townline 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, if any, are encountered during project-related 
construction. Townline will document all activities associated with 
hazardous material spill sites and hazardous waste sites, if any, 
and will notify the appropriate state and local agencies according 
to applicable regulations. The goal of these measures is to ensure 
the proper handling and disposal of contaminated materials, 
including contaminated soil, groundwater, and stormwater, if such 
materials are encountered. Townline will use disposal methods that 
comply with applicable solid and hazardous water regulations.
    MM-Hazardous Materials Sites-01. Townline shall follow American 
Society of Testing and Materials E1527-05, Standard Practice for 
Environmental Site Assessments: Phase 1 Environmental Site 
Assessment Process in areas where potential contamination could be 
encountered. If Townline encounters contamination (or signs of 
potential contamination) during these activities, Townline shall 
promptly perform a Phase 2 environmental investigation. Should 
findings of a Phase 2 environmental investigation identify 
contamination in soil and/or groundwater, Townline shall coordinate 
with relevant New York state agencies on regulatory obligations and 
comply with those agencies' reasonable

[[Page 67510]]

requirements for avoiding impacts related to soil and/or groundwater 
contamination.

[FR Doc. 2024-18538 Filed 8-19-24; 8:45 am]
BILLING CODE 4915-01-P