|SURFACE TRANSPORTATION BOARD DECISION DOCUMENT|
|WHEELING AND LAKE ERIE RAILWAY COMPANY--ABANDONMENT EXEMPTION--IN HARRISON AND JEFFERSON COUNTIES, OH|
|GRANTED EXEMPTION UNDER 49 U.S.C. 10502, W&LE FROM PRIOR APPROVAL REQUIREMENTS OF 49 U.S.C. 10903, TO ABANDON ITS LINE OF RAILROAD KNOWN AS VALLEY LINE, SUBJECT TO ENVIRONMENTAL AND STANDARD EMPLOYEE PROTECTIVE CONDITIONS.|
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|Full Text of Decision|
By petition filed July 1, 1999,(1) Wheeling & Lake Erie Railway Company (W&LE) seeks
an exemption under 49 U.S.C. 10502 from the prior approval requirements of 49 U.S.C. 10903 to
abandon its line of railroad known as the Valley Line, extending from milepost 188.5 near
Unionvale to milepost 205.54 near Warrenton, a distance of approximately 18 miles in Jefferson
and Harrison Counties, OH. The United Transportation Union (UTU) requests imposition of
employee protective conditions. We will grant the exemption, subject to environmental and
standard employee protective conditions.
W&LE, a Class II rail carrier, operates approximately 850 miles of rail lines in Ohio,
Pennsylvania, West Virginia, and Maryland. W&LE began operations in May 1990 after
acquiring its core rail lines from the Norfolk & Western Railway Company.(2) W&LE's principal
routes extend from Connellsville and Pittsburgh, PA, to Bellevue, OH; from Brewster and
Canton, OH, to Cleveland, OH; and from Mogadore and Akron, OH, to Carey, OH. W&LE also
operates over CSX Transportation, Inc.'s line between Connellsville, PA, and Hagerstown, MD,
pursuant to trackage rights.
The Valley Line is a single-track, unsignaled branch line that connects with a W&LE line
which extends westward to a connection with W&LE's main line at Pittsburgh Junction. At
Warrenton, the Valley Line connects with W&LE's north-south River Branch between
Steubenville, OH, and Benwood, WV. According to W&LE, approximately half of the Valley
Line is laid with 110-pound and half with 132-pound rail, which is in fair condition. The bridges
and tunnels on the line are also in fair condition.
In March 1995, a W&LE train derailed on the Valley Line at milepost 196.9 near
Dillonvale, resulting in substantial damage and preventing the line from being used as a through
route. All overhead traffic was relocated to alternative routes. The sole shipper on the line,
located west of the damaged segment, was Camco Recycling (Camco). After the derailment,
Camco was served on an as-needed basis from the west until it ceased using rail service to ship
scrap metal in July 1997.(3) Camco generated revenues of $7,380 in 1997. No other local traffic
has been handled on the Valley Line since at least 1993, and W&LE maintains that there are no
reasonable prospects for industrial development or other sources of traffic in the area.(4)
W&LE estimates that the cost to repair the track at the derailment location and
rehabilitate the Valley Line to minimum Federal Railroad Administration Class 1 safety
standards is approximately $150,000. W&LE submits that the net liquidation value of the track
materials alone (excluding land) is approximately $832,000. According to W&LE, abandonment
and salvage of the track will provide it with much-needed cash flow and will eliminate the need
to expend substantial resources to reopen and rehabilitate a line with no traffic.
Under 49 U.S.C. 10903, a rail line may not be abandoned without our prior approval.
Under 49 U.S.C. 10502, however, we must exempt a transaction or service from regulation when
we find that: (1) continued regulation is not necessary to carry out the rail transportation policy
of 49 U.S.C. 10101; and (2) either (a) the transaction or service is of limited scope, or (b)
regulation is not necessary to protect shippers from the abuse of market power.
Detailed scrutiny under 49 U.S.C. 10903 is not necessary to carry out the rail
transportation policy. By minimizing the administrative expense of the application process, an
exemption will reduce regulatory barriers to exit [49 U.S.C. 10101(7)]. An exemption will also
foster sound economic conditions and encourage efficient management by relieving W&LE of
the cost of owning and maintaining a line which generates no traffic or revenue and which
requires substantial rehabilitation, and by allowing W&LE to apply its assets more productively
elsewhere on its system [49 U.S.C. 10101(5), and (9)]. Other aspects of the rail transportation
policy will not be affected adversely.
Regulation of the proposed transaction is not necessary to protect shippers from the abuse
of market power because all overhead traffic has been rerouted, and there is no actual or potential
local traffic. Camco, the only previously active shipper on the line, stopped using rail service
almost 2 years ago, and WMO, a potential shipper that expressed interest in preserving the line in
the past, reportedly does not object to the proposed abandonment.(5) Nevertheless, to ensure that
Camco (and its successor) and WMO are informed of our decision, we will require W&LE to
serve a copy of this decision on them within 5 days of the service date and certify to us that it has
UTU requests the imposition of labor protective conditions. Under 49 U.S.C. 10502(g),
we may not use our exemption authority to relieve a carrier of its statutory obligation to protect
the interests of its employees. Accordingly, as a condition to granting this exemption, we will
impose the employee protective conditions in Oregon Short Line R. Co.--Abandonment--Goshen, 360 I.C.C. 91 (1979).
W&LE has submitted an environmental report with its petition and has notified the
appropriate Federal, state, and local agencies of the opportunity to submit information
concerning the energy and environmental impacts of the proposed abandonment. See 49 CFR
1105.11. Our Section of Environmental Analysis (SEA) has examined the environmental report,
verified the data it contains, and analyzed the probable effects of the proposed action on the
quality of the human environment. SEA served an environmental assessment (EA) on
August 30, 1999. In the EA, SEA indicated that the U.S. Department of Agriculture, Natural
Resources Conservation Service (NRCS) has indicated that the line is adjacent to several prime
farmland soil units as well as a flood control project. Therefore, SEA recommends that a
condition be imposed requiring W&LE to consult with NRCS (Hopedale, OH) to provide
information required by that agency. SEA has also indicated that both the United States and
Ohio Environmental Protection Agencies note that no debris from salvage operations may be left
in the right-of-way or along waterways and that appropriate measures must be taken to preclude
spills of pollutants into water courses. Therefore, SEA recommends that a condition be imposed
requiring W&LE to remove all salvage operation debris from the right-of-way, streams or
wetlands, or the banks of such waterways, and to take appropriate measures to prevent or control
spills from fuels, lubricants, or any other pollutants from entering water courses. Finally, SEA
states that the Ohio Historic Preservation Office has not completed its review of the proposed
abandonment. Accordingly, SEA recommends that a condition be imposed requiring W&LE to
retain its interest in and take no steps to alter the historic integrity of all sites and structures on
the right-of-way that are 50 years old or older until completion of the section 106 process of the
National Historic Preservation Act, 16 U.S.C. 470f.
On September 3, 1999, the National ESA and Wetlands Coalition (NEWC) filed a
comment to the EA, alleging that three class one wetlands and two class two wetlands are on the
right-of-way and that six endangered species are in the immediate vicinity. NEWC requests that
W&LE be required to consult with the Ohio Department of Natural Resources, the U.S. Fish and
Wildlife Service, and the U.S. Army Corps of Engineers before commencing salvage operations.
The record shows, however, that W&LE contacted and requested comments from each of these
agencies, which have jurisdiction over these matters, that all three responded, and that none of
these agencies raised the concerns expressed by NEWC. Under the circumstances, SEA does not
recommend this condition. No other comments to the EA were filed by the September 29, 1999
due date. We will impose the recommended conditions and conclude that the proposed
abandonment, if implemented as conditioned, will not significantly affect either the quality of the
human environment or the conservation of energy resources.
SEA has indicated in its EA that the right-of-way may be suitable for other public use
under 49 U.S.C. 10905. We note that no one has sought a public use condition, and none will be
imposed at this time.(6)
It is ordered:
1. Under 49 U.S.C. 10502, we exempt from the prior approval requirements of 49 U.S.C.
10903 the abandonment of the above-described line, subject to the employee protective
conditions in Oregon Short Line R. Co.--Abandonment--Goshen, 360 I.C.C. 91 (1979), and the
conditions that W&LE shall: (1) consult with NRCS (Hopedale, OH) to provide information
required by that agency; (2) remove all salvage operation debris from the right-of-way, streams
or wetlands, or the banks of such waterways, and take appropriate measures to prevent or control
spills from fuels, lubricants, or any other pollutants from entering water courses; and (3) retain
its interest in and take no steps to alter the historic integrity of all sites and structures on the
right-of-way that are 50 years old or older until completion of the section 106 process of the
National Historic Preservation Act, 16 U.S.C. 470f.
2. W&LE is directed to serve a copy of this decision on Camco (and its successor) and
WMO within 5 days after the service date of this decision and to certify to the Board that it has
3. An offer of financial assistance (OFA) under 49 CFR 1152.27(c)(1) to allow rail
service to continue must be received by the railroad and the Board by October 29, 1999, subject
to time extensions authorized under 49 CFR 1152.27(c)(1)(i)(C). The offeror must comply with
49 U.S.C. 10904 and 49 CFR 1152.27(c)(1). Each OFA must be accompanied by a $1,000 filing
fee. See 49 CFR 1002.2(f)(25).
4. OFAs and related correspondence to the Board must refer to this proceeding. The
following notation must be typed in bold face on the lower left-hand corner of the envelope:
"Office of Proceedings, AB-OFA."
5. Provided no OFA has been received, this exemption will be effective on November
18, 1999. Petitions to stay must be filed by November 3, 1999, and petitions to reopen must be
filed by November 15, 1999.
6. Pursuant to the provisions of 49 CFR 1152.29(e)(2), W&LE shall file a notice of
consummation with the Board to signify that it has exercised the authority granted and fully
abandoned the line. If consummation has not been effected by W&LE's filing of a notice of
consummation by October 19, 2000, and there are no legal or regulatory barriers to
consummation, the authority to abandon will automatically expire. If a legal or regulatory barrier
to consummation exists at the end of the 1-year period, the notice of consummation must be filed
not later than 60 days after satisfaction, expiration or removal of the legal or regulatory barrier.
By the Board, Chairman Morgan, Vice Chairman Clyburn, and Commissioner Burkes.
Vernon A. Williams
1. Notice of the filing was served and published in the Federal Register on July 21, 1999 (64 FR 39186-87).
2. See Wheeling Acquisition Corporation--Acquisition and Operation Exemption--Lines of Norfolk & Western Railway Company, Finance Docket No. 31591 (ICC served Feb. 6, May 7, and Dec. 28, 1990).
3. The current status of Camco is unclear from the record. W&LE states that, in 1997, Camco's property was purchased by another company which has elected to rely exclusively on trucks, and that a copy of the petition has been served on that company (petition at 2). In addition, W&LE states that Camco has relocated (petition at 4). The "Certificate of Notification and Service" indicates that W&LE served its petition on "Camco Recycling, Fair and Watson" at a P.O. Box in Dillonvale, but it is unclear whether this is the new company or Camco.
4. W&LE states that one potential shipper, Waste Management of Ohio (WMO), which earlier expressed interest in preserving the line, has recently concluded that it has no need for rail service in the future and does not object to the abandonment. W&LE served a copy of the petition on WMO.
5. Given our market power finding, we need not determine whether the proposed transaction is limited in scope.
6. Public use requests were due no later than 20 days after publication of the notice of the petition in the Federal Register, or by August 10, 1999. We note that the Public Library of Steubenville and Jefferson County (the Library), a public body, indicated by letter that it was interested in acquiring a portion of the right-of-way for parking space. The Library's letter is included as an appendix to W&LE's environmental report. It appears to have been transmitted to the Board on June 18, 1999, before the July 21 notice in this proceeding, and does not constitute a formal request for a public use condition within the meaning of our rules. Should the Library wish to pursue a public use condition, it may file a formal request under 49 U.S.C. 10905 in the form prescribed in 49 CFR 1152.28, along with a timely petition to reopen. The Library is free, of course, to negotiate directly with W&LE in the absence of a public use condition.