Guide to Environmental Rules

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Environmental Matters > Guide to Environmental Rules

The Surface Transportation Board's (Board) environmental rules became effective on September 29, 1991. [Ex Parte No. 55 (Sub-No.22 A), Implementation of Environmental Laws, 7 I.C.C 2nd 807.] These rules implement various environmental statutes that include the National Environmental Policy Act (NEPA), and the National Historic Preservation Act (NHPA). They (1) combine the STB's former environmental and energy regulations; (2) revise and clarify our environmental/historic requirements; (3) require service of environmental reports on certain state, federal, and local agencies; and (4) reclassify and clarify the types of actions for which environmental and/or other historic reports and analyses are required. These regulations will enable applicants, interested parties, and the Board's environmental staff to better identify and more expeditiously resolve environmental concerns.

This guide is intended to assist you in understanding and applying the Board's environmental rules. It highlights the various environmental and historic reporting requirements, notice requirements, those actions exempt from environmental and historic review, and the types of environmental documents generally prepared for actions before the Board . The guide is presented as only an overview of the environmental rules. A complete copy of the environmental rules can be requested or reviewed on the Board's web site.

Questions concerning the environmental rules may be addressed to the Office of Environmental Analysis (OEA), Surface Transportation Board, 395 E Street S.W. Washington DC 20423. The Office of Environmental Analysis (OEA), formerly the Section of Environmental Analysis (SEA), conducts independent environmental review of cases and makes environmental recommendations to the Board . Inquiries regarding the environmental rules may be directed to:

Vicki Rutson, Director, Office of Environmental Analysis
(202) 245-0295

Danielle Gosselin, Deputy Director
(202) 245-0304
Fax (202) 245-0453

Questions concerning OEA's general processing of cases, public use conditions, trails use, and offers of financial assistance to continue rail service should be directed to the Office of Public Assistance, Governmental Affairs and Compliance (202) 245-0245.

Questions And Answers

To help familiarize you with the environmental rules, we have set forth a series of questions and answers that address key provisions of the new regulations. Please note that the term "applicant" includes any person or entity seeking Board action, whether by application, petition, notice of exemption, or any other means that initiates a formal Commission proceeding. Also, two types of reports may need to be filed: (1) an environmental report (Questions 5-10) and/or (2) a historic report (Questions 11-15).

When does the Board normally prepare an Environmental Impact Statement?
Answer: An environmental Impact Statement (EIS) will normally be prepared for most rail construction proposals with the exception of the construction of certain connecting track. [See 1105.6(a)]

When does the Board normally prepare an Environmental assessment?
Answer: Environmental Assessments (EA) will be prepared for the following proposed actions. [See 1105.6 (b)]

  1. Construction of certain connecting track; Abandonment of rail lines;
  2. Discontinuance of passenger train service and freight service (except for discontinuances under modified certificates and trackage rights where the affected line will continue to be operated);
  3. An acquisition, lease or operation which exceeds the thresholds specified in 1105.7(e) (4) or(5);
  4. A rulemaking, policy statement, or legislative proposal that has the potential for significant environmental impacts; and
  5. Water carrier licensing involving new operations or the transportation of hazardous materials.

What actions are exempted from environmental review?
Answer: No environmental documentation will normally be prepared for the following actions (although a Historic Report may be required under 1105.8). [ See 1105.6 (c)]

  1. Motor carrier, broker, or freight forwarder licensing and water carrier licensing not involving operations or the transportation of hazardous materials;
  2. An actions that do not result in significant changes in carrier operations; e.g., acquisitions, or operations that do not exceed specified environmental thresholds, and transactions involving corporate changes such as issuance of securities. [ See 1105.6 (c) (2) (i)-(vi)];
  3. Rate, fare and tariff actions;
  4. Common use of rail terminals and trackage rights;
  5. Discontinuance of rail freight service under a modified certificate;
  6. Discontinuance of trackage rights where the affected line will continue to be operated; and
  7. A rulemaking, policy statement, or legislative proposal that has no potential for significant environmental impacts.

Can actions before the Board be reclassified to require a different type of environmental review (e.g., an EA rather than an EIS)?
Answer: Yes. The Board may reclassify or modify the requirements for individual proceedings. In a rail Construction case, an applicant may request with written substantiation (and the Board may grant) that an EA rather than an EIS be prepared. For actions generally requiring an EA, the commission may prepare an EIS because of the probability of significant impacts. For actions that normally require no environmental documentation, the Board may decide that because of potential environmental impacts an environmental report is required and an EA or EIS warranted. [ See 1105.6 (d)]

When must an applicant submit an environmental report?
Answer: An environmental report must be submitted with or prior to the filing of an action for which an EIS or EA is normally required. [See 1105.6 (a) and (b) .] However, no environmental report will be required in those cases (e.g., rail constructions) where an independent third-party consultant working under the Board's supervision has been retained by the applicant to prepare the EIS or EA.

On whom must the applicant serve copies its environmental report?
Answer: The applicant must serve the following agencies listed under 1105.7 (b):

  1. the State Clearinghouse of each state involved ( In a notice of exempt abandonment, the appropriate State Clearinghouse must be notified 20 days prior to the notice's filing under 1105.7 (c) ;
  2. the State Environmental Protection Agency of each involved state;
  3. the State Coastal Zone Management if the activity will affect land or water use within that state's coastal zone;
  4. the head of each county including any Indian reservations through which the line goes;
  5. the appropriate regional offices of the Environmental Protection Agency;
  6. the U.S. Fish and Wildlife Service;
  7. the U.S. Army Corps of Engineers;
  8. the National Park Service;
  9. the U.S. Soil Conservation Service; and
  10. any other agencies that have been consulted in preparing the report.

OEA has recently compiled a contact list of appropriate Federal and State agencies to assist you in this area.

Must an applicant certify that it has served the appropriate agencies?
Answer: Yes. In its environmental report the applicant must certify that it has sent copies of the environmental report to the agencies listed under section 1105.7 (b) and that it has consulted with all appropriate agencies in preparing the report. Additionally, in a notice of abandonment exemption, the applicant shall also certify that it has notified the appropriate State Clearinghouse at least 20 days prior to filing the notice.

How should applicants handle responses from agencies?
Answer: Any written responses received from agencies contacted in preparing the environmental report must be attached to the report. Oral responses from such agencies must be briefly summarized in the report and include the names, titles, and telephone numbers of the person contacted.

What type of newspaper notice is required for Abandonment exemptions?
Answer: In both notices of abandonment and petitions for abandonment exemptions, the applicant must certify that it has published a notice in a newspaper in each county through which the line passes. This notice shall alert the public to the proposed abandonment, available reuse alternatives, and how to participate in the Board proceeding. The newspaper notice is not required in regulated abandonment cases. ( See sample newspaper notice for abandonment exemptions under 1105.12 of the environmental rules.)

Describe the type and scope of information that must be contained in environmental reports?
Answer: Environmental reports should include all of the information specified in 1105.7 (e). The environmental report should also include any required historic report. Examples of the type of information to be included in the environmental report are listed below:

  1. Proposed action and alternatives;
  2. Transportation system;
  3. Land use;
  4. Energy;
  5. Air;
  6. Noise;
  7. Safety;
  8. Biological resources;
  9. Water;
  10. Proposed mitigation; and
  11. Certain additional information for rail constructions.

The Board may waive or modify information requirements when the information is not necessary to evaluate the environmental impacts of the proposed action. [See 1105.7 (g)]. If some information requested does not apply in a particular case, the applicant should explain why in the environmental report.

When must applicants submit historic reports?
Answer: The National Historic Preservation Act (NHPA) requires the Board to consider the effects of certain of its actions on railroad owed historic properties. To assist the Board in complying with NHPA, each applicant must submit the historic report describe in 1105.8 (d) for the following type of action [unless exempted under 1105.8 (b); see Q. 12]:

  1. Actions identified in 1105.6 (a) [EIS normally required];
  2. Actions identified in 1105. 6 (b) [EA normally required]; and
  3. Certain actions identified in 1105.6 (c) that will result in the lease, transfer or sale of a railroad's line, sites, or structures.

What type of actions are exempt from historic reporting requirements?
Answer: Those actions exempted from historic review under 1105.8 (b) of the new environmental rules include:

  1. A sale, lease or transfer of a rail line where rail service will continue ; there are no plans to dispose of or alter railroad properties 50 years old or older; and further Board approval as required to abandon any service;
  2. A sale, lease or transfer of property between corporate affiliates where there will be no significant change in operations;
  3. Trackage rights, common use of rail terminals, common control through stock ownership, or similar action which will not substantially change the level of maintenance of railroad property; and
  4. Rulemaking, policy statements and other similar actions involving transportation rates or classifications.

If an action is exempt, the applicant must state in its filing the specific exemption that applies and show how the exemption criteria are met. (For example, if the section 1105.8 (b) (1) exemption applies the applicant should specifically reference this exemption and state how it meets the particular exemption criteria; e.g., applicant has no plans to dispose of or alter railraod properties 50 years or older.)

When and to whom must an applicant send its historic report?
Answer: The applicant must send the historic report to the appropriate State Historic Preservation Officer (s) (SHPO) (i.e, the SHPO for each state the line goes through), preferably 60 days in advance of its filing, but at the latest with the filing. If an environmental report is required, the historic report should be combined with this document.

Describe what information is required in the historic report?
Answer: The historic report should contain the information required by 1105.8 (d). This information includes the following:

  1. a description of the proposal;
  2. maps and written descriptions of the right-of-way;
  3. photographs;
  4. certain construction information;
  5. .a brief narrative history of the operations involved;
  6. identification of documents in the carriers possession such as engineering drawings; and
  7. the railroad's opinion as to whether the property is eligible for listing in the National Register of Historic Places, etc.

Submission of the historic information specified in 1105.8 (d) is critical to conducting the Section 106 historic review process required under the National Historic Preservation Act.

How long does the historic review process generally take?
Answer: The Board working with the railroads, the State Historic Preservation Officers, and the Advisory Council on Historic Preservation, will do its utmost to ensure that the historic review process is completed in a timely manner. The amount of time, of course, will vary with the nature and scope of the particular case. Early consultation with the SHPO (s) and a complete historic report will help to expedite the process. Under the new environmental rule. however, historic preservation conditions imposed by the Commission in rail abandonment cases generally will not extend beyond the 330-day statutory time period in 49 U.S.C. 10904 for abandonment proceedings.

In what ways do the new rules differ from the old rules in handling issues relating to Coastal Zone Management Act (CZMA) requirements?
Answer: The new rules set forth the coastal zone reporting requirements in 1105.9. The CZMA requirements have been separated from the environmental reporting requirements to avoid exempting inappropriate action from coastal zone review. Additionally, Section 1105.9 has been broadened (in compliance with CZMA) to apply to actions that affect land or water uses in the coastal zone, as well as those that take place in a coastal zone, as stated in the prior environmental rules.