STB Key Cases, Yucca Mountain Alignment
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Key Cases: Yucca Mountain Rail Alignment


Who is the Surface Transportation Board (STB)?
The STB was created by the ICC Termination Act of 1995 as a successor to the Interstate Commerce Commission. The STB is responsible for the economic regulation of freight railroads under the Interstate Commerce Act, pursuant to 49 U.S.C. 701-727, 10101-16106.

What does the STB do?

Among its various duties, the STB reviews railroad proposals to construct and operate new rail lines; abandon unneeded rail lines; or acquire and operate other lines or other railroads.

Who are the STB members?

The STB is a bipartisan body with 3 members who are appointed by the President and confirmed by the Senate for staggered 5-year terms. Currently (as of May 2008), Charles D. Nottingham is the Chairman of the STB, Francis P. Mulvey is the Vice Chairman, and W. Douglas Buttrey is the third member.

Is the STB part of DOT?

Although the STB is organizationally within DOT, it is decisionally independent.

How large is the STB?

The STB has a staff of approximately 140 people, consisting of attorneys, economists, transportation industry analysts, engineers, auditors, environmental specialists, and support staff.

Does all new rail construction need STB authorization?

The construction and/or operation of a new rail line that will be part of the interstate rail network requires STB approval in advance (under either 49 U.S.C. 10901 or 49 U.S.C. 10502). But STB approval is not needed to improve or upgrade an existing rail line that does not extend the railroad’s territory. Nor is STB approval needed to construct or operate spur, industrial, team, or side track (referred to collectively as excepted track). 49 U.S.C. 10906. Track that is used for loading, unloading, switching, or other purposes that are incidental to, but not actually part of, the carrier’s line-haul transportation service typically is considered to be excepted track.

The construction and operation of “private track” do not come within the STB’s jurisdiction. “Private track” is track used only to serve the owner’s transportation needs, with no “holding out” to serve anyone else.

What does the STB consider when reviewing an application for a new rail line to be built?

Under 49 U.S.C. 10901(c), the STB must approve a proposal to construct or operate a rail line unless the STB finds that such activities are inconsistent with the “public convenience and necessity” (a broad public interest standard under which the STB weighs the transportation need or benefits against any kind of harm likely to result). Historically, the agency has evaluated whether there is a public demand or need for the proposed service; whether the applicant is financially able to undertake the construction and provide rail service; and whether the proposal is in the public interest and will not unduly harm existing services. The interests of shippers are accorded substantial importance in assessing the public interest. Safety and environmental concerns are also considered and weighed against transportation concerns in evaluating the public interest.

What does NEPA require?

The National Environmental Policy Act (NEPA) requires federal agencies to examine the potential environmental effects of their proposed actions and to inform the public concerning those effects. The purpose of NEPA is to focus the attention of the agency and the public on the likely environmental consequences of a proposed action, in order to minimize or avoid potential negative environmental impacts. However, NEPA does not mandate a particular result. Once the adverse environmental effects have been adequately identified and evaluated, the agency can conclude that other benefits outweigh the environmental cost. The STB complies with NEPA by preparing an Environmental Impact Statement (EIS) (see 40 CFR 1508.11; 49 CFR 1105.4(f)) or a more limited Environmental Assessment (EA) (see 40 CFR 1508.9; 49 CFR 1105.4(d)), as warranted. The STB’s environmental review process must meet the requirements of the President’s Council on Environmental Quality (CEQ), at 40 CFR 1500. The STB also has regulations for implementing NEPA, at 49 CFR 1105.

What are the steps in the STB’s review process?

After a request for authority to construct and operate a new rail line is filed, the STB sets a procedural schedule that gives interested parties time to submit information on any transportation issues and for the applicant to reply. The STB also prepares either an EIS or an EA to meet its obligations under NEPA and related environmental laws. The STB then considers the entire record (including all comments received on environmental or transportation issues), in deciding whether to authorize the construction as proposed; deny the proposal; or approve it with conditions imposed to mitigate potential safety or environmental concerns.

What is the role of the STB’s Section of Environmental Analysis (SEA)?

Under NEPA, the STB must consider the potential environmental impacts of its action before deciding whether to approve a new rail line . SEA is the office within the STB that gathers and analyzes the environmental record in a case, prepares the EA or EIS, as appropriate, and provides technical advice and recommendations to the STB on environmental matters. SEA has trained legal and environmental specialists, headed by the Chief of the Section of Environmental Analysis, Vicki Rutson.

Can you summarize the STB’s NEPA process in a rail construction case?

If a full EIS is prepared, SEA first issues a notice of intent to prepare an EIS and determines the scope of work for the EIS, after providing opportunities for public participation and consultation with appropriate federal, state, and local agencies and other government entities. A Draft EIS then is prepared that analyzes in detail the potential environmental impacts of the proposed construction, considers reasonable and feasible alternatives to the applicant’s proposal, and makes recommendations for environmental mitigation. The public has at least 45 days to comment on the Draft EIS. A Final EIS then is issued that responds to the public comments, presents the results of any further environmental analysis, and incorporates final environmental mitigation recommendations. The STB then considers both the entire environmental record, and the record on the transportation issues, in deciding whether to authorize the construction as proposed, deny the proposal, or grant it with conditions, including environmental conditions and the requirement that the railroad use an environmentally preferable route or routes. See 49 CFR 1105.10(a), (f).

In cases where an EA is prepared, scoping is not required. But an EA, like an EIS, discusses the relevant environmental issues and alternatives and includes appropriate recommended environmental mitigation. And STB procedures include an opportunity for public review and comment on every EA, followed by issuance of final environmental documentation responding to the comments, containing additional environmental analysis, if warranted, and presenting final environmental mitigation recommendations. The EA, and the comments and responses thereto, then are made part of the record before the STB in the proceeding involved. See 49 CFR 1105.10(b), (f).

What happens when more than one federal agency is involved in the NEPA process? Where there is more than one federal agency with responsibility regarding the same proposed action, there will be a “lead agency” that takes primary responsibility for preparing the EIS. Other agencies with jurisdiction or special expertise participate as “c ooperating agencies.” The lead agency supervises the preparation of the environmental analysis. A cooperating agency typically develops information and prepares environmental analyses addressing the issues on which it has special expertise. In the NEPA process, agencies will consult with, and seek comments from, other appropriate federal, state, and local agencies even if they are not formally participating as a cooperating agency.

What is the public's role in the NEPA process?

There are ample opportunities for public input during the NEPA process, particularly during scoping (to determine what issues should be addressed in an EIS) and in commenting on a Draft EIS or EA. The public can submit written comments directly to the agency or participate in hearings or public meetings. In preparing the Final EIS or EA, the lead agency must take into consideration, and respond to, the comments received from the public and other parties.

Has the STB done any environmental work related to the proposal to build and operate a rail line to Yucca Mountain?

Yes. Since May 2004, the STB has been working as one of three cooperating agencies on the EIS being prepared under the Department of Energy’s lead addressing the potential Nevada rail transportation corridor and alternative rail alignments. The other cooperating agencies are the Bureau of Land Management and the U.S. Air Force. DOE invited the STB to participate as a cooperating agency at the early stages of those EISs to provide expertise in freight rail transportation. DOE was also aware when it asked the STB to become a cooperating agency that the STB would have jurisdiction over the proposed new line unless the line was to be private track.

DOE recently filed an application under 49 U.S.C. 10901 seeking STB authorization to construct and operate a rail line to Yucca Mountain. The application was docketed as STB Finance Docket No. 35106, United States Department of Energy—Rail Construction and Operation—Caliente Line in Lincoln, Nye, and Esmeralda Counties, NV. The EISs prepared under DOE’s lead will serve as the basis for SEA’s recommendations to the STB regarding whether, from an environmental perspective, DOE’s application should be granted, denied, or granted with environmental conditions.

The Board adopted a procedural schedule for consideration of DOE’s application on April 11, 2008, providing for comments in support of or in opposition to the application by July 15, 2008, and to DOE to reply by August 29, 2008. The Board’s decision adopting the procedural schedule can be found on the agency’s website at, under “E-Library”, then under “Decisions & Notices,” beneath the date “4/11/08.” The State of Nevada has filed a motion asking the Board to reject the application as incomplete. DOE has replied. The Board will address the State’s motion in a later decision.

Will the STB consider safety issues?

Absolutely. Although freight rail safety is the primary responsibility of the Federal Railroad Administration, the STB must take safety concerns into consideration. This includes both public safety and the safety of railroad employees. Safety concerns are usually raised and addressed in the STB’s environmental review process.

How do I find information on the pending DOE construction case or other proposals currently before the STB?

Visit the STB’s web site at The STB maintains an electronic public docket and information system designed to permit prompt and easy public access to all filings and comments submitted to the STB and decisions issued by the agency. Information about the pending DOE construction case can be found by referencing STB Finance Docket No. 35106.