STB REPORT #2 - JANUARY 15 - 31, 1998 ****************************************************************************** A compilation of decisions and notices published by the Surface Transportation Board. Includes information on track abandonments, ownership changes and trackage rights agreements. Condensed for readability. The full text is available at www.stb.dot.gov/ ****************************************************************************** DEPARTMENT OF TRANSPORTATION Surface Transportation Board [STB Docket No. AB-32 (Sub-No. 83)] Boston and Maine Corporation--Abandonment--in Hartford and New Haven Counties, CT [STB Docket No. AB-355 (Sub-No. 23)] Springfield Terminal Railway Company--Discontinuance of Service--in Hartford and New Haven Counties, CT On December 29, 1997, the Boston and Maine Corporation (B&M) and Springfield Terminal Railway Company (ST) (referred to collectively as applicants) filed with the Surface Transportation Board (Board), Washington, DC 20423, an application for permission for B&M to abandon and ST to discontinue service on a line of railroad known as the Canal Branch extending from milepost 14.50 in Cheshire, CT, to milepost 24.00 in Southington, CT, a distance of approximately 9.50 miles, in Hartford and New Haven Counties, CT. The line traverses U.S. Postal Service ZIP Codes 06410, 06467, 06479, and 06489. Applicants have indicated that there are no agency stations located on the line. The line of railroad has appeared on B&M's system diagram map or has been included in its narrative in category 1 since February 28, 1997. Decided: January 12, 1998. Service Date: January 16, 1998 ------------------------------------------------------------------------------ SURFACE TRANSPORTATION BOARD DECISION STB Docket No. AB-33 (Sub-No. 112X) UNION PACIFIC RAILROAD COMPANY--ABANDONMENT EXEMPTION-- IN LANCASTER COUNTY, NE By decision and notice of interim trail use or abandonment served September 24, 1997, we granted the Union Pacific Railroad Company (UP) an exemption under 49 U.S.C. 10502 from the prior approval requirement of 49 U.S.C. 10903 to abandon a 1.88-mile segment of its Lincoln Branch between milepost 494.76, near 10th Street, and milepost 492.99, near 33rd Street, in Lincoln, NE, subject to conditions. Before the decision authorizing abandonment became effective, Lincoln Lumber Company (LLC) timely filed an offer of financial assistance (OFA) under 49 U.S.C. 10904 and 49 CFR 1152.27(c) to purchase that portion of the line located between 19th Street and 24th Street. By decision served October 8, 1997, LLC was found financially responsible, and the effective date of the decision authorizing abandonment was postponed for the segment located between 19th Street and 24th Street to permit the OFA process to proceed. Subsequently, LLC filed a request that the Board establish the conditions and the amount of compensation for the sale of the line. Thereafter, in a decision served December 3, 1997, the Board set the purchase price for the line at $300,947, and established terms for transfer of the line. On December 23, 1997, LLC filed a petition to reopen the December 3, 1997, asserting that the Board had committed material error. LLC's petition will be considered in a subsequent decision. By letter filed December 8, 1997, LLC indicates that it accepts the Board's terms and conditions and acknowledges that it will be bound by them unless they are modified as a result of its petition to reopen. It is ordered: 1. Under 49 U.S.C. 10904, LLC is authorized to acquire the segment located between 19th Street and 24th Street. 2. Under 49 U.S.C. 10904 and 49 CFR 1152.27(h)(7), the petition for exemption is dismissed as to that segment located between 19th Street and 24th Street, effective on the date the sale is consummated. Decided: January 13, 1998 Service Date: January 16, 1998 ---------------------------------------------------------------------- SURFACE TRANSPORTATION BOARD DECISION AND NOTICE OF INTERIM TRAIL USE OR ABANDONMENT STB Docket No. AB-33 (Sub-No. 114X) UNION PACIFIC RAILROAD COMPANY--ABANDONMENT EXEMPTION-- IN WASHBURN COUNTY, WI By petition filed September 30, 1997, Union Pacific Railroad Company (UP) seeks an exemption under 49 U.S.C. 10502 from the prior approval requirements of 49 U.S.C. 10903 to abandon a line of railroad known as the Hayward Industrial Lead, extending from milepost 83.32 near Trego to milepost 96.0 near Hayward Junction, a distance of 12.68 miles, in Washburn County, WI. Pursuant to 49 U.S.C. 10502(b), a notice was published in the Federal Register on October 20, 1997, instituting an exemption proceeding. On November 17, 1997, a request for imposition of a public use condition was filed by Washburn County (County) and a request for issuance of a notice of interim trail use (NITU) was filed by the Wisconsin Department of Natural Resources (WisDNR), acting through the Wisconsin Department of Transportation (WisDOT) (collectively referred to as WisDNR/DOT). The United Transportation Union requests imposition of labor protective conditions. We will grant the exemption subject to trail use, public use, environmental and standard employee protective conditions. UP states that the Hayward Industrial Lead previously extended from Trego in Washburn County to a location near Hayward in Sawyer County, WI. The segment between Hayward Junction and Hayward was acquired by Wisconsin Central Ltd. (WCL) pursuant to an acquisition exemption in STB Finance Docket No. 33116 (STB served Apr. 17, 1997). WCL operates another rail line that connects to the acquired line at Hayward Junction. UP states that the line to be abandoned does not now connect to any UP rail line. According to UP, there are no freight revenues or shippers on the line to justify the costs of operation and maintenance, which include the expense of maintaining 10 public road crossings. The only shipper on the line, Thilmany Pulp & Paper Company (Thilmany), located at Trego, ceased operations in May 1996, and no local traffic has moved over the line since that time. (Thilmany used the line for shipments of pulpwood and shipped 484 carloads in 1994, 64 carloads in 1995, and 17 carloads in 1996.) There is no overhead traffic. The line is constructed of 90- pound rail, which UP intends to salvage and sell post-abandonment. In the EA, EA indicated: (1) that the National Geodetic Survey (NGS) has identified one geodetic station arker that may be affected by the proposed abandonment; and (2) that the State Historical ociety of Wisconsin has not completed its review of potentially historic sites and structures on the line. Therefore, SEA recommends that we impose conditions requiring UP to: (1) notify the NGS at least 90 days prior to engaging in any activities that would disturb or destroy the geodetic marker identified on the line; and (2) retain its interest in and take no steps to alter any sites and structures on the line that are 50 years old or older until completion of the section 106 process of the National Historic Preservation Act. WisDNR/DOT requests a NITU under 16 U.S.C. 1247(d) and 49 CFR 1152.29. WisDOT states that WisDNR will use or preserve the land corridor and related real property for interim public transportation and recreational purposes (including highway, pedestrian and other trail uses), subject to restoration for railroad purposes. WisDNR has submitted a statement of willingness to assume financial responsibility for the right-of-way and acknowledged that use of the right-of-way is subject to possible future reconstruction and reactivation for rail service as required under 49 CFR 1152.29. By letter dated December 10, 1997, UP states that it is willing to negotiate for interim trail use. WisDNR/DOT's request complies with the requirements of 49 CFR 1152.29 and UP is willing to enter into negotiations. Therefore, we will issue a NITU for the described line. The parties may negotiate an agreement during the 180-day period prescribed below. If an agreement is executed, no further Board action is necessary. If no agreement is reached within 180 days, UP may fully abandon the line, subject to the conditions imposed below. Use of the right-of-way for trail purposes is subject to restoration for railroad purposes. SEA has indicated in its EA that the right-of-way may be suitable for other public use after abandonment. As noted above, the County requests imposition of a 180-day public use condition precluding UP from disposing of the rail corridor and removing or destroying potential trail- related structures, such as bridges, trestles, culverts and tunnels. The County states that it is interested in acquiring the line intact for future rail use. It is ordered: 1. The late-filed requests for a NITU under 49 U.S.C. 1247(d) and for a public use condition under 49 U.S.C. 10905 are accepted. 2. Under 49 U.S.C. 10502, we exempt from the prior approval requirements of 49 U.S.C. 10903, the abandonment by UP 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: (1) UP shall leave intact all of the right-of-way, including bridges, trestles, culverts and tunnels (but not track and track materials) for a period of 180 days from the effective date of this decision and notice, to enable any state or local government agency or any other interested person to negotiate the acquisition of the line for public use; (2) comply with the interim trail use/rail banking procedures set forth below; (3) notify the NGS at least 90 days prior to engaging in any activities that would disturb or destroy the geodetic marker identified on the line; and (4) retain its interest in and take no steps to alter any sites and structures on the line 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. 3. If an interim trail use/rail banking agreement is reached, it must require the trail user to assume, for the term of the agreement, full responsibility for management of, any legal liability arising out of the transfer or use of (unless the user is immune from liability, in which case it need only indemnify the railroad against any potential liability), and for the payment of any and all taxes that may be levied or assessed against, the right-of-way. 4. Interim trail use/rail banking is subject to the future restoration of rail service and to the user's continuing to meet the financial obligations for the right-of-way. 5. If interim trail use is implemented and subsequently the user intends to terminate trail use, it must send the Board a copy of this decision and notice and request that it be vacated on a specified date. 6. If an agreement for interim trail use/rail banking is reached by the 180th day after service of this decision and notice, interim trail use may be implemented. If no agreement is reached by that time, UP may fully abandon the line, provided the conditions imposed above are met. 7. Provided no OFA has been received, this exemption will be effective February 15, 1998. Petitions to stay must be filed by January 26, 1998, and petitions to reopen must be filed by February 5, 1998. 8. Pursuant to the provisions of 49 CFR 1152.29(e)(2), UP shall file 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 UP's filing of a notice of consummation by January 16, 1999, and there are no legal or regulatory barriers to consummation, the authority to abandon will automatically expire. Decided: January 12, 1998 Service Date: January 16, 1998 ----------------------------------------------------------------------- SURFACE TRANSPORTATION BOARD DECISION STB Docket No. AB-477 (Sub-No. 2X) OWENSVILLE TERMINAL COMPANY, INC. ABANDONMENT EXEMPTION IN GIBSON AND POSEY COUNTIES, IN REQUEST TO SET TERMS AND CONDITIONS By decision served November 7, 1997, we granted the Owensville Terminal Company, Inc. (OTC), an exemption under 49 U.S.C. 10502 from the prior approval requirements of 49 U.S.C. 10903 to abandon a line of railroad known as the Cynthiana-Owensville line. The rail line runs from milepost 277.0 north of Cynthiana to milepost 271.0 north of Owensville, a distance of 6.0 miles, in Gibson and Posey Counties, IN. The exemption was scheduled to become effective on December 7, 1997, unless an offer of financial assistance (OFA) was filed with the OTC and the Board by November 17, 1997. On November 17, 1997, the Gibson County Farm Bureau Cooperative Association (the Farm Bureau) filed an OFA to purchase a 2-mile segment of the line between milepost 273.0 and milepost 271.0 for $42,452. OTC's petition for exemption estimated the net liquidation value (NLV) of the entire line at $127,354. OTC's NLV estimate was based on the net salvage value of track and materials and included no value for land. The Farm Bureau's offer for the 2-mile segment was one-third of OTC's NLV estimate for the entire 6-mile line. In a decision served November 20, 1997, the Farm Bureau was found financially responsible. The effective date of the exemption authorizing abandonment of the 2-mile segment was postponed to permit the OFA process under 49 U.S.C. 10904 and 49 CFR 1152.27 to proceed. (The exemption permitting abandonment of the remainder of the line became effective on December 7, 1997.) The decision also provided that, before December 17, 1997, either party could request that the Board establish the terms and conditions for the sale of the segment if no agreement were reached during negotiations. On December 18, 1997, the Farm Bureau requested that the Board establish the conditions and amount of compensation. The Farm Bureau revised its offer and now contends that the fair market value of the segment is $4,539.78, consisting of $20,825.00 for the land less $16,285.22 for the negative net salvage value of track and materials (based on estimated gross salvage value of $113,757.28 and estimated liquidation costs of $130,042.50). OTC responds that the fair market value of the segment is $216,500, consisting of $125,000 for the land and $91,500 for the net salvage value of track and materials. We will set the fair market value of the segment at $120,500, consisting of $29,000 for the land and $91,500 for the net salvage value of the track and materials. The Farm Bureau notes that its general manager, James Elliott, stated in an affidavit dated December 6, 1997, that, in October 1997, OTC offered to sell the entire Cynthiana-Owensville line to another party for $150,000. According to Mr. Elliott, the offeree declined to accept the offer after making its own determination that the salvage value for entire line was no more than $120,000. The Farm Bureau asserts that these prices should be considered in establishing the fair market value of the segment here. OTC responds that the offer referred to by Mr. Elliott was part of a broader transaction for a proposed settlement of litigation and did not reflect the fair market value of the rail line. The offer referred to by Mr. Elliott was not made as part of an OFA proceeding, where the offeror is compelled to pay the purchase price. Rather, the offer was made during negotiations to settle litigation outside our purview. There is not enough information about the offer to enable us to determine whether it is relevant to consider in setting the fair market value here. Thus, we will not consider the offer as indicating the fair market value of the line. The total land area in this proceeding is 18 acres, consisting of 16 acres in the operating right-of-way and 2 acres outside the right-of-way. The right-of-way is approximately 60 feet in width. Copies of deeds submitted by OTC indicate that it owns a fee simple interest in the right- of-way. In its request to set terms and conditions, the Farm Bureau estimates the land value at $20,825.00. In support, the Farm Bureau submitted a report which had been prepared by Edward P. Evert of the Geneva Group, a transportation consulting firm. Mr. Evert determined that only the 5.95 acres of the right-of-way which adjoins the Farm Bureau's property would be merchantable. He indicated that the remaining property is located next to a state highway or wetlands, or is overgrown with trees, and, in his view, is not marketable for sale to adjacent property owners for agricultural uses. The report bases its market value estimate on a comparative sale of railroad property at $5,494.51 per acre when rail service was available. Noting that rail service is no longer available, Mr. Evert discounted the land value to $3,500 per acre. OTC's land value estimate is based on an appraisal by Robert R. Fowler, a real estate appraiser who is a principal in the firm of Real Property Management. Mr. Fowler's appraisal includes the 2 acres of non-corridor property that OTC leases to the Farm Bureau and other industries. OTC claims that the 2 acres contain spur tracks into premises operated by the Farm Bureau and other industries and are required for the performance of rail service. Thus, according to Mr. Fowler, the Farm Bureau is obligated to purchase the 2 acres together with the 16 acres the offeror wants to buy. According to Mr. Fowler, the leased property generated income of $9,600 per year. Using a 10% capitalization rate, Mr. Fowler valued the property under lease at $96,000. Mr. Fowler indicates that there are 4 leases on the non-corridor property. Two of the leases are held by the Farm Bureau and generate lease income for OTC of $6,100 per year. The other leases are with Owensville Lumber Co. ($2,500 per year) and Floyd Anderson ($1,000 per year). OTC asserts that the highest and best use of the 2 acres is income generating property. Mr. Fowler also valued the 16 acres of the right-of-way at $29,000, based on a rate of $1,800 per acre. This appraisal is based on the value of comparable parcels of agricultural land with values ranging as high as $2,500 to $3,000 per acre. The comparative values were discounted by 50% to account for the narrow right-of-way. OTC disputes the Farm Bureau's assertions that the portions of the right-of-way have no market value because they are located next to a highway, are covered by trees, or are located on a fill. OTC argues that these factors merely alter the use of the land, and that the land might be used as an addition to a roadway, or for drainage, or for consolidation into an adjoining use. OTC states that its 50% reduction of the value to arrive at the $29,000 valuation of the land took into account the specific limitations in the use of the land. We accept OTC's real estate appraisal because it values the 16 acres in the right-of-way according to accepted methodology. OTC makes appropriate adjustments to reflect the configuration of the rail corridor by reducing the values. Also, OTC's appraisal has not been effectively contradicted by the Farm Bureau. We do not accept OTC's assertion that the 2 acres of leased land should be included in the value of the right-of-way. We note that OTC used the term non-corridor property to describe the four leased parcels. We generally do not include land outside the operating right-of-way corridor in our estimate of NLV for a line, which is the standard for valuing a line for OFA purposes. While the 2 acres purportedly contain spur trackage, there is no showing that the 2 acres are necessary for the actual performance of continued transportation operations over the line, or that the economic viability of such service is dependent upon the receipt of rental income from the 2 acres of land. Consequently, we will not include any value for these 2 acres in our restatement of the NLV for the line. Sale of the leased property may be negotiated outside the scope of the OFA process. The Farm Bureau estimates the net salvage value of track and material of the segment at a negative $16,285.22. This estimate is derived from Mr. Evert's report, which calculated the gross value of track and material at $113,757.28, and the total removal costs at $130,042.50. Mr. Evert calculated removal costs as follows: $11,000 for dismantling the line, $8,542.50 for disposing of scrap ties, $12,500.00 for transporting scrap ties, $66,000.00 for grade elimination and paving costs, and $32,000 for the replacement of the Black River culvert. In response, OTC submitted a verified statement from Richard Sykes, a consultant to B. Sykes, Ltd., a railroad construction and supply company, who estimates the net salvage value of the segment to be $91,500. Mr. Sykes calculated the gross value of track and materials at $112,921.50, the removal costs at $16,581.00, with the costs for removing and restoring grade crossings at $3,840 and costs for removing the Black River culvert at $1,000. The parties estimates of the gross value of the track and materials and their estimates of the track removal costs are comparable. Thus, under the burden of proof standard, we will accept OTC's estimate for gross salvage value of track and materials and the track removal costs (excluding removal costs for ties). The parties differ primarily in their estimates of the costs of the removal of ties and the cost of the restoration of the right of way. Mr. Evert estimates that it would cost $8,542.00 to dispose of scrap ties and $12,500 to transport them to Evansville, IN, for disposal. Mr. Sykes submitted a letter from Tie Yard in Omaha, NE, offering to pay OTC $10,000 to purchase and remove all ties on the line, with the purchaser responsible for disposal and transportation of the scrap ties. We believe that the $10,000 offer to purchase is better evidence than the Farm Bureau's assertion that tie disposal costs are greater than the value of the ties. Accordingly, under our burden of proof standard, we accept OTC's removal costs for ties. The Farm Bureau asserts that under Ind. Code  8-3-1-21.1. et seq., and Gibson County Local Ordinance No. 1997-4, OTC would be required to restore grade crossings and would also be required to replace a culvert over the Black River. Mr. Evert estimates that it would cost $66,000 to eliminate and repave two grade crossings and $32,000 to construct a new culvert. Mr. Evert indicates that these estimates are based on prices provided by Stone Construction Company at Owensville. Mr. Sykes estimates that removal and restoration of the two grade crossings would cost $3,840, based on a cost of $4 per square foot. To support this estimate, Mr. Sykes submitted two contracts with CSX Transportation, Inc., showing removal and restoration of paved grade crossings at $4 per square foot. One of the contracts involved a line in Indiana. Mr. Sykes states further that OTC would be required to remove the Black River culvert, but would not be required to replace the culvert or construct a new culvert. Based on his experience, Mr. Sykes estimates that removal of the culvert would cost no more than $1,000. The estimate is based on an average of 3.5 hours to remove a culvert at approximately $100 per hour for labor and equipment. Under the state statute, OTC would be required to restore the grade crossings. However, the statute appears to be limited to removing crossing control devices, railroad insignia, and rails, and reconstruction of that part of the highway so that it conforms to the standards of the contiguous roadway. OTC's estimate for restoring the grade crossings is based on recent contract prices. The Farm Bureau's estimate is high compared to other abandonments and has not been adequately supported. Mr. Evert has not explained how he arrived at his estimate for restoring the grade crossings. As a result, we will accept OTC's estimated cost for grade crossing restoration. The local ordinance cited by the Farm Bureau appears to require that OTC remove the Black River culvert, but does not require OTC to replace the culvert. As a result, we will accept OTC's estimate for removing the culvert. Accordingly, we will accept OTC's net salvage value of $91,500. It is ordered: 1. The purchase price for the portion of the segment between milepost 273.0 and milepost 271.0 is set at $120,500. Other terms of sale must comply with the provisions discussed above. 2. Within 10 days of the service date of this decision, the Farm Bureau must accept or reject, in writing, the terms and conditions established here by notifying the Board and OTC. 3. If the Farm Bureau accepts the terms and conditions established by this decision, the Farm Bureau and OTC will be bound by this decision. The Farm Bureau may not transfer or discontinue service on the line prior to the end of the second year after consummation of the sale, nor may it transfer the line, except to OTC, prior to the end of the fifth year after consummation of the sale. 4. If the Farm Bureau withdraws its offer or does not accept the terms and conditions with a timely written notification, the Board shall issue a decision within 20 days of the service date of this decision vacating the prior decision that postponed the effective date of the decision authorizing abandonment. Decided: January 16, 1998 Service Date: Late Release January 16, 1998 ----------------------------------------------------------------------- DEPARTMENT OF TRANSPORTATION Surface Transportation Board [STB Finance Docket No. 33449] Union Pacific Railroad Company--Trackage Rights Exemption--Southern Pacific Transportation Company Southern Pacific Transportation Company (SP) has agreed to grant overhead trackage rights to Union Pacific Transportation Company (UP) over SP's tracks known as the Bakersfield Line from milepost 479.1 near Keenbrook to milepost 481.0 near Dike, a distance of 1.9 miles, in the vicinity of Los Angeles, CA. UP states that it filed this notice of exemption to extend the trackage rights it received from SP in STB Finance Docket No. 33128 (STB served Oct. 8, 1996), which included, among others, the Bakersfield Line between Dike (MP 481.0) and West Colton (MP 494.2). The transaction was expected to be consummated on or as soon as possible after January 7, 1998, the effective date of the exemption. Decided: January 7, 1998. Service Date: January 16, 1998 ----------------------------------------------------------------------- DEPARTMENT OF TRANSPORTATION Surface Transportation Board [STB Finance Docket No. 33533] Illinois Central Railroad Company and New Orleans Public Belt Railroad Joint Relocation Project Exemption in New Orleans, LA On December 23, 1997, Illinois Central Railroad Company (IC) and New Orleans Public Belt Railroad (NOPB) jointly filed a notice of exemption under 49 CFR 1180.2(d)(5) to reconfigure IC and NOPB operations over their adjacent track. The proposed transaction was scheduled to be consummated on or after the December 30, 1997 effective date of the exemption. IC is a Class I railroad operating approximately 2,600 miles of rail line in six states, and NOPB is a Class III terminal switching railroad owned by the City of New Orleans, LA. NOPB operates approximately 25 miles of rail line in and around New Orleans. Within the City of New Orleans, IC and NOPB own and operate adjacent mainlines. Under the joint project, IC and NOPB propose the following transactions: (1) NOPB will grant IC non-exclusive bridge trackage rights over 3.4 miles of NOPB's Main Line and Siding Track between milepost JO.3, at Lampert Junction, and milepost 3.4, at Nashville Avenue; IC will continue to serve the Sewerage and Water Board track near Oak Street. (2) IC will relocate its operation to NOPB trackage and will abandon its adjacent Main Line trackage between milepost 917.77, at Nashville Avenue, and milepost 921.13, at Lampert Junction, a distance of approximately 3.36 miles; (3) IC will grant NOPB non-exclusive bridge trackage rights over approximately 5,568 feet of IC's Main Line from Station 120+00.00, at Nashville Avenue, to Station 175+68.09, at Valence Street; and (4) IC and NOPB will perform such incidental relocation of signals and power switches as necessary to complete the proposed reconfiguration of operations contemplated by the exemption. The transaction will simplify rail operations in the area and will reduce the number of unnecessary tracks on street right-of-way and reduce the number of tracks in grade crossings in the area. The joint project will not change service to shippers, expand the operations of IC or NOPB into new territory, or alter the existing competitive situation. Decided: January 9, 1998. Service Date: January 16, 1998 ----------------------------------------------------------------------- DEPARTMENT OF TRANSPORTATION Surface Transportation Board [STB Finance Docket No. 33535] Maumee & Western Railroad Corporation Operation Exemption Maumee & Western, L.L.C. Maumee & Western Railroad Corporation, a noncarrier, has filed a verified notice of exemption under 49 CFR 1150.31 to acquire operating rights over a line of railroad owned by Maumee & Western, L.L.C., from Liberty Center, OH (milepost TN-28.0), to Woodburn, IN (milepost 79.0), a distance of approximately 51 route miles. The transaction was scheduled to be consummated on or after December 31, 1997. Decided: January 7, 1998. Service Date: January 16, 1998 ----------------------------------------------------------------------- DEPARTMENT OF TRANSPORTATION Surface Transportation Board [STB Finance Docket No. 33536] Wabash Central Railroad Corporation Operation Exemption Wabash Central, L.L.C. Wabash Central Railroad Corporation, a noncarrier, has filed a verified notice of exemption under 49 CFR 1150.31 to acquire operating rights over a line of railroad owned by Wabash Central, L.L.C., from Craigsville, IN (milepost 117.8), to Van Buren, IN (milepost 108.6), a distance of approximately 26.4 miles of rail line and incidental trackage rights. The transaction was scheduled to be consummated on or after December 31, 1997. Decided: January 7, 1998. Service Date: January 16, 1998 ----------------------------------------------------------------------- DEPARTMENT OF TRANSPORTATION Surface Transportation Board [STB Docket No. AB-55 (Sub-No. 558X)] CSX Transportation, Inc.--Abandonment Exemption--in Franklin County, TN CSX Transportation, Inc. (CSXT) has filed a notice of exemption under 49 CFR 1152 Subpart F--Exempt Abandonments to abandon approximately 1.41 miles of its line of railroad between milepost OJC-0.30 and milepost OJC-1.71 at the end of track, in Decherd, Franklin County, TN. The line traverses United States Postal Service Zip Code 37324. Provided no formal expression of intent to file an offer of financial assistance (OFA) has been received, this exemption will be effective on February 21, 1998, unless stayed pending reconsideration. Pursuant to the provisions of 49 CFR 1152.29(e)(2), CSXT 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 CSXT's filing of a notice of consummation by January 22, 1999, and there are no legal or regulatory barriers to consummation, the authority to abandon will automatically expire. Decided: January 12, 1998. Service Date: January 22, 1998 ----------------------------------------------------------------------- SURFACE TRANSPORTATION BOARD DECISION Docket No. AB-55 (Sub-No. 514X) CSX TRANSPORTATION, INC. ABANDONMENT EXEMPTION IN MONROE AND OWEN COUNTIES, IN In a decision served September 30, 1997, the Board reopened this proceeding to afford an opportunity for the parties to show that the statutory requirements of the National Trails System Act, 16 U.S.C. 1247(d), continue to be satisfied. Statements have been filed by CSX Transportation, Inc. (CSXT), and Monroe County Parks and Recreation Department (MCPRD). No reply has been submitted by the petitioner, Victor Oolitic Stone Company, Inc. (Victor). The statements of CSXT and MCPRD indicate that the negotiating period for interim trail use expired on June 2, 1996, without the parties reaching an agreement. Therefore, the possibility of interim trail use no longer exists, and Victor's petition to reopen this matter is moot. Accordingly, this proceeding will be dismissed. It is ordered: 1. This proceeding is dismissed. Decided: January 20, 1998 Service Date: January 23, 1998 ----------------------------------------------------------------------- SURFACE TRANSPORTATION BOARD ENVIRONMENTAL ASSESSMENT NO. AB- 192 (SUB-NO. 1 ) Birmingham Southern Railroad Company - Application to Abandon and Discontinue Service - Birmingham, AL, and Discontinuance of Trackage Rights Over the Norfolk Southern Railroad in Birmingham, AL In this proceeding, the Birmingham Southern Railroad (BS) has filed an application seeking authority under 49 U.S.C. 10903 to abandon and discontinue service over its railroad line known as the Birmingham Branch consisting of (1) the Birmingham Running Track, extending from BS station 0+00 to BS station 146+97.22, a distance of 2.78 miles, and (2) the Birmingham Yard, extending from BS station 0+00 to BS station 56+83.94, a distance of 1.08 miles. The rail line segments proposed for abandonment are located in the City of Birmingham, Jefferson County, Alabama. BS also seeks the discontinuance of .614 miles of trackage rights over the Norfolk Southern Railroad, located between Norfolk Southern Railroad's Mileposts 143 and 144 in Birmingham. In its application, BS states that the line segments proposed for abandonment have remained in operation to serve Mindis Metal Company (Mindis), a business engaged in processing scrap metal. BS further states that because of the limited rail service BS now provides Mindis and the aging tracks and signals of the line, continued operation of the line is no longer economically feasible. In February 1997, a connecting track was constructed by the Norfolk Southern Railroad (NS), which operates rail service in the area, to enable NS to serve Mindis. NS now provides service to Mindis. The subject rail line segments are located in a high traffic volume area of Birmingham. We recommend that no environmental conditions be placed on any decision granting abandonment authority. Service Date: January 23, 1998 ----------------------------------------------------------------------- SURFACE TRANSPORTATION BOARD DECISION Docket No. AB-303 (Sub-No. 13X) WISCONSIN CENTRAL LTD. ABANDONMENT EXEMPTION IN BROWN COUNTY, WI By decision and notice of interim trail use or abandonment (NITU) served February 7, 1995, a 180-day period was provided for Wisconsin Central Ltd. (WCL) and the Wisconsin Department of Natural Resources (WisDNR) to negotiate an interim trail use/rail banking agreement for WCL's 13.9-mile rail line between milepost 183.0 at Greenleaf and milepost 196.9 at Green Bay, in Brown County, WI. WCL's willingness to negotiate trail use was contingent on the failure of on-going negotiations with the Escanaba & Lake Superior Railroad Company (E&LS) for the latter's acquisition of the line for continuing rail service. The initial 180-day negotiating period expired on August 6, 1995, but was extended through January 23, 1998, by decisions served December 21, 1995, February 9, 1996, September 12, 1996, February 12, 1997, and December 16, 1997. In a joint petition filed January 13, 1998, WCL and WisDNR request another 180-day extension of the NITU negotiating period. Although E&LS is still attempting to purchase the line, petitioners anticipate that E&LS and WCL should have a final determination regarding that matter within the next six months. The joint petitioners state that the line has not been abandoned and that WCL remains willing to negotiate interim trail use/rail banking with WisDNR if E&LS fails to purchase the rail line. In view of the number of past extensions of the negotiating period, the parties are encouraged to reach a resolution on the possible sale of the line to E&LS as soon as possible so that further extensions of the trail use/rail banking negotiating period are not necessary. It is ordered: 1. The NITU negotiating period is extended for 180 days to July 22, 1998. Decided: January 22, 1998 Service Date: January 23, 1998 ----------------------------------------------------------------------- SURFACE TRANSPORTATION BOARD ENVIRONMENTAL ASSESSMENT NO. AB-303 (SUB-NO. 18X) Wisconsin Central Ltd. - Abandonment Exemption In Polk County, Wisconsin In this proceeding, Wisconsin Central Ltd. (WCL)has filed a petition under 49 U.S.C. 10502 seeking exemption from the requirements of 49 U.S.C. 10903 in connection with the abandonment of its railroad line from Milepost 47.83 in Dresser to Milepost 63.08 (the end of the line) in Amery, a distance of 15.25 miles in Polk County, WI. In its application, WCL states that the only active shipper on the line is Amery Equity Co- op which plans to relocate to another WCL line. The line itself traverses rolling hills and the surrounding land is mainly used for agricultural purposes. A number of Federal and state agencies contacted WCL during the environmental review process and requested specific procedures during any salvage operations to minimize potentially harmful environmental impacts. WCL acknowledged these requests in its application and agreed to implement them. The Wisconsin Department of Natural Resources (WI DNR) has advised us and WCL of a known petroleum soil contamination site at the Amery Bulk Plant in Amery, WI. Although the buildings and petroleum tanks were not owned by WCL, the contamination site is located on the WCL right-of-way. WI DNR requests that we impose a condition requiring WCL to come into compliance with state regulations regarding the clean up process for this site prior to being granted authority to abandon the line. We will recommend a condition to any abandonment authority requiring WCL to consult with WI DNR in order to fulfill WCL's obligation in the clean up process at the Amery Bulk Plant site, and any other contamination site involving the WCL right-of-way in this proposed abandonment. This consultation will be required whether or not WCL plans to initiate any salvage activity and prior to any salvage activity. The Wisconsin State Historic Preservation Officer has not yet completed a determination of historic significance for several structures located on the WCL right-of-way proposed for abandonment. We will recommend a condition to any abandonment authority prohibiting WCL from disposing of the right-of-way until completion of the Section 106 process of the National Historic Preservation Act. 1. We recommend that a condition be placed on any abandonment authority requiring WCL to consult with the Wisconsin Department of Natural Resources in order to fulfill WCL's obligation in the clean up process at the Amery Bulk Plant site, and any other contamination site involving the WCL right-of-way in this abandonment. This consultation will be required whether or not WCL plans to initiate any salvage activity and prior to any salvage activity. 2. The Wisconsin State Historic Preservation Officer has not completed a determination of historical significance for several WCL properties located on the right-of-way. Accordingly, a condition is recommended requiring that WCL shall retain its interest in and take no steps to alter the historic integrity of the right-of-way until completion of the Section 106 process of the National Historic Preservation Act, 16 U.S.C. 470f. Service Date: January 23, 1998 ----------------------------------------------------------------------- SURFACE TRANSPORTATION BOARD STB Finance Docket No. 32760 (Sub-No. 21) (Decision No. 11) UNION PACIFIC CORPORATION, UNION PACIFIC RAILROAD COMPANY, AND MISSOURI PACIFIC RAILROAD COMPANY CONTROL AND MERGER SOUTHERN PACIFIC RAIL CORPORATION, SOUTHERN PACIFIC TRANSPORTATION COMPANY, ST. LOUIS SOUTHWESTERN RAILWAY COMPANY, SPCSL CORP., AND THE DENVER AND RIO GRANDE WESTERN RAILWAY COMPANY [OVERSIGHT] In Finance Docket No. 32760, Decision No. 44, served August 12, 1997 (UP/SP), we approved, subject to various conditions, the common control and merger of the rail carriers controlled by Union Pacific Corporation (Union Pacific Railroad Company and Missouri Pacific Railroad Company) and the rail carriers controlled by Southern Pacific Rail Corporation (Southern Pacific Transportation Company, St. Louis Southwestern Railway Company, SPCSL Corp., and The Denver and Rio Grande Western Railroad Company). Our conditions to the UP/SP merger included a 5-year oversight condition to examine whether the conditions we have imposed have effectively addressed the competitive issues they were intended to remedy. We also specifically reserved the authority to impose additional conditions as necessary to alleviate competitive harm, if the trackage rights granted to The Burlington Northern and Santa Fe Railway Company (BNSF) or the other specific conditions were shown to be ineffective. As part of the oversight condition, UP and BNSF have filed quarterly reports beginning October 1, 1996. More recently, we instituted the instant oversight proceeding in which UP, BNSF, and numerous parties filed comments regarding the competitive effects of the merger and the conditions. After reviewing those comments, we concluded that the present record did not demonstrate that the merger, with the conditions we imposed, has caused any substantial competitive harm. We also concluded, nevertheless, that certain additional requirements and directives were warranted to ensure that the conditions we imposed were implemented more effectively. One of the additional measures we imposed in Decision No. 10 was the requirement that UP and BNSF establish a protocol for resolving the status of particular shipper facilities at 2- to-1 points, i.e., points where shippers post-merger options declined from two railroads to one, and for deciding whether BNSF is entitled to serve such facilities under the terms of the BNSF settlement agreement. In submissions filed November 26, 1997, UP and BNSF indicate that, while they agree on most provisions of a 2-to-1 facilities protocol, they continue to disagree with respect to two provisions. (As pertinent, UP and BNSF have agreed that UP will respond within 5 business days to any BNSF request for access to a 2-to-1 facility. If BNSF makes more than five requests in a single day, UP may respond within 10 business days to those requests in excess of five. If UP fails to respond by the deadline, BNSF is then entitled to serve the facility, with no UP right to appeal. If UP denies a request, BNSF can submit the matter to the Board or, by agreement of the parties, to an arbitrator.) The disagreement concerns burden of proof and the ability of BNSF to provide service while a dispute is pending before an arbitrator or before us. BNSF argues that UP's insistence that it must approve a facility's 2-to-1 status before the facility gains competitive access unfairly places the evidentiary burden of proof on BNSF and inhibits shippers ability to take advantage of BNSF's new service capability. BNSF contends that, as a result of UP's gatekeeper role, there should be a presumption that BNSF is entitled to serve a particular shipper facility at 2-to-1 points, unless UP can provide specific evidence that the facility was not open to both UP and SP before the merger. BNSF maintains that UP should have the evidentiary burden of establishing the status of a facility because UP had the pre-merger relationship with the shipper and retains control over the records necessary to make the required factual determination. UP contends that, because BNSF's proposed presumption would inappropriately require that UP prove a negative with specific evidence, the correct resolution for a protocol is for there to be no presumption in favor of any particular outcome. UP indicates that, in previous 2- to-1 access requests by BNSF, UP has addressed the requests in good faith and has not insisted that BNSF present some quantum of specific documentary evidence before access is granted. According to UP, its good faith in reviewing BNSF's requests for access to 2-to-1 points is reflected in the fact that, in the year since merger consummation, the Board has not been asked to resolve any 2-to-1 dispute. The second disagreement concerns BNSF's proposal that it be permitted to serve a facility pending resolution of any dispute over the status of a particular facility. BNSF contends that, if its proposal is not accepted, the involved shippers will be deprived of competitive service during the adjudication period, and BNSF will be deprived of the additional traffic. UP responds that BNSF's proposal unfairly places the onus on UP to appeal from its own denial of a BNSF request. UP also maintains that railroad operations and shipper business activities would be unduly disrupted by BNSF's absolute right to serve a facility during the review process, and that nothing in the record indicates that future 2-to-1 disputes cannot be resolved expeditiously. Although two issues remain in dispute, we commend UP and BNSF for their substantial agreement thus far on a 2-to-1 facilities protocol. Under the draft agreement, UP has agreed to respond within 5 business days to any BNSF request for access to a 2-to-1 facility, and within 10 business days to BNSF service requests in excess of five. Under the agreement, BNSF will gain access to the facility if UP fails to respond by the deadline. UP's responsiveness under the agreement, the availability of arbitration, and our continued availability to resolve 2-to-1 disputes expeditiously make it unnecessary that BNSF be permitted to serve shipper facilities pending resolution of disputes. BNSF has not shown that there have previously been problems resolving such disputes, nor has it shown that UP has a track record of arbitrarily refusing to admit that particular shippers are 2-to-1 shippers. Accordingly, BNSF's proposal for interim service will not be adopted. If it turns out that, under this protocol, UP is consistently refusing to grant access to shippers that are 2-to-1 shippers by invoking arbitration or our adjudication as a delaying tactic, then we will further consider BNSF's proposal. We also reject BNSF's proposal that, unless UP provides specific evidence that a facility was not open to both UP and SP prior to the merger, there should be a presumption that BNSF is entitled to serve the shipper s facility. Rather, we believe that there should be no presumption in favor of any particular party or result, and that all the involved parties, including shippers supporting BNSF's competitive access, should be able to draw upon any and all available information to resolve the status of a particular facility. Although we recognize that UP retains the right initially to determine a facility's status, we disagree with BNSF that such a procedure is unfair. Pertinent 2-to-1 information should be available to BNSF through its supporting shipper, which should be eager to gain access to an additional rail carrier. Thus, we will adopt the draft protocol agreed to by UP and BNSF with the modifications proposed by UP regarding the two issues in dispute as discussed above. It is ordered: 1. BNSF's protocol proposals, as discussed in this decision, are not adopted. 2. The draft protocol agreed to by UP and BNSF, as modified by the revisions of UP, is adopted for the purposes of this proceeding. Decided: January 21, 1998 Service Date: Late Release January 23, 1998 ----------------------------------------------------------------------- SURFACE TRANSPORTATION BOARD DECISION STB Finance Docket No. 33474 IOWA INTERSTATE RAILROAD, LTD.--LEASE AND OPERATION EXEMPTION-- UNION PACIFIC RAILROAD COMPANY By petition filed October 23, 1997, Iowa Interstate Railroad, Ltd. (IAIS) seeks an exemption under 49 U.S.C. 10502 from the prior approval requirements of 49 U.S.C. 10902 to enter into a lease to manage, maintain, dispatch, and operate over a line of railroad owned by Union Pacific Railroad Company (UP) in Polk County, IA. The line consists of 6.4 miles of railroad between milepost 358.568 in Des Moines, IA, and milepost 365.0 at West Des Moines, IA, together with all appurtenances thereto, connecting tracks and industrial tracks, and fixed improvements thereon. We will grant the exemption, subject to labor protective conditions. IAIS is a Class II rail carrier and subsidiary of Heartland Rail Corporation (Heartland). Heartland owns and IAIS operates lines of railroad in Iowa and Illinois. Petitioner obtained overhead trackage rights from UP in 1984 over the line it now seeks to lease. IAIS avers that UP presently provides service to the line's shippers on an as needed basis, and will continue to do so by retaining the right to operate over the line. Under the terms of the parties agreement, IAIS will lease, manage, dispatch, maintain, and also operate over the line as an integral part of other IAIS train operations on its east/west mainline which is located on each end of the line. Under their agreement, UP will continue to exclusively serve all industries on the line, while IAIS will continue to serve industries previously served by the Norfolk Southern and/or Burlington Northern railroads at milepost 359.6. It is ordered: 1. Under 49 U.S.C. 10502, we exempt from the prior approval requirements of 49 U.S.C. 10902 the lease by IAIS of the above-described line segment, subject to the employee protective conditions required by 49 U.S.C. 10902(d) and the standards and procedures established in WCL Exemption. 2. Notice will be published in the Federal Register on January 23, 1998. 3. IAIS must serve a copy of this decision on each shipper on the line within 5 days of the service date of this decision and certify to the Board that it has done so. 4. The exemption granted by this decision will be effective 60 days after IAIS certifies to the Board that it has posted at the workplace of the employees on the affected line, and served on the national offices of the labor unions with employees on the affected line, a notice of the transaction, setting forth the types and numbers of jobs expected to be available, the terms of employment and principles of employee selection, and the line that is to be leased. Decided: January 12, 1998 Service Date: January 23, 1998 ----------------------------------------------------------------------- DEPARTMENT OF TRANSPORTATION Surface Transportation Board [STB Finance Docket No. 33540] Blue Mountain Railroad, Inc.--Trackage Rights Exemption--Union Pacific Railroad Company Union Pacific Railroad Company (UP) will agree to grant local trackage rights to Blue Mountain Railroad, Inc. (BMR) between: (1) UP milepost 210.0 at Juniper, OR, and UP milepost 218.0 at Wallula Heights, WA; and (2) UP milepost 0.0 at Wallula, WA, and UP milepost 2.0 near Attilia, WA, a total distance of 10 miles. BMR will be permitted to provide local switching service only to Boise Cascade Corporation, Ponderosa Fibers, and WATCO, Inc., at Wallula, WA. The transaction is expected to be consummated on or shortly after January 15, 1998, the effective date of the exemption. Decided: January 15, 1998. Service Date: January 23, 1998 ----------------------------------------------------------------------- SURFACE TRANSPORTATION BOARD DECISION Docket No. AB-3 (Sub-No. 130) MISSOURI PACIFIC RAILROAD COMPANY--ABANDONMENT--TOWNER-NA JUNCTION LINE IN KIOWA, CROWLEY, AND PUEBLO COUNTIES, CO Docket No. AB-3 (Sub-No. 131) MISSOURI PACIFIC RAILROAD COMPANY--ABANDONMENT--HOPE- BRIDGEPORT LINE IN DICKINSON AND SALINE COUNTIES, KS Docket No. AB-3 (Sub-No. 133X) MISSOURI PACIFIC RAILROAD COMPANY--ABANDONMENT EXEMPTION-- IOWA JUNCTION LINE-MANCHESTER LINE IN JEFFERSON DAVIS AND CALCASIEU PARISHES, LA Docket No. AB-12 (Sub-No. 184X) SOUTHERN PACIFIC TRANSPORTATION COMPANY--ABANDONMENT EXEMPTION--WENDEL-ALTURAS LINE IN MODOC AND LASSEN COUNTIES, CA Docket No. AB-12 (Sub-No. 187X) SOUTHERN PACIFIC TRANSPORTATION COMPANY--ABANDONMENT EXEMPTION--SEABROOK-SAN LEON LINE IN GALVESTON AND HARRIS COUNTIES, TX Docket No. AB-33 (Sub-No. 93X) UNION PACIFIC RAILROAD COMPANY--ABANDONMENT EXEMPTION-- WHITTIER JUNCTION-COLIMA JUNCTION LINE IN LOS ANGELES COUNTY, CA Docket No. AB-33 (Sub-No. 96) UNION PACIFIC RAILROAD COMPANY--ABANDONMENT--BARR-GIRARD LINE IN MENARD, SANGAMON AND MACOUPIN COUNTIES, IL Docket No. AB-33 (Sub-No. 97X) UNION PACIFIC RAILROAD COMPANY--ABANDONMENT EXEMPTION-- IN DECAMP-EDWARDSVILLE LINE IN MADISON COUNTY, IL Docket No. AB-33 (Sub-No. 98X) UNION PACIFIC RAILROAD COMPANY--ABANDONMENT EXEMPTION-- EDWARDSVILLE-MADISON LINE IN MADISON COUNTY, IL Docket No. AB-33 (Sub-No. 99X) UNION PACIFIC RAILROAD COMPANY--ABANDONMENT EXEMPTION-- LITTLE MOUNTAIN JUNCTION-LITTLE MOUNTAIN LINE IN BOX ELDER AND WEBER COUNTIES, UT In Docket No. AB-3 (Sub-No. 130), Missouri Pacific Railroad Company (MPRR) filed an application under 49 CFR 1152.22 for it to abandon, and for the Denver and Rio Grande Western Railroad Company (DRGW) to discontinue its overhead trackage rights operations over, MPRR's Towner-NA Junction Line, which extends between MP 869.4 near NA (North Avondale) Junction, CO, and MP 747.0 near Towner, CO, a distance of approximately 122.4 miles in Pueblo, Crowley, and Kiowa Counties, CO. MPRR merged into Union Pacific Railroad Company (UPRR) on January 1, 1997. By letter filed December 23, 1997, UPRR notified the Board that it had discontinued service on the 121.9-mile portion of the line from milepost 747.5 near Towner to milepost 869.4 near NA Junction, CO, as authorized in the Decision and Certificate of Interim Trail Use or Abandonment (CITU) served on September 10, 1996. UPRR asserts that it has not discontinued service over the 0.5-mile portion of the line between milepost 747.0 and milepost 747.5 near Towner, CO. UPRR reports that this segment has been leased to the Central Kansas Railway pursuant to the exemption covered by the notice in STB Finance Docket No. 33470 (STB served Oct. 9, 1997). In Docket No. AB-3 (Sub-No. 131), MPRR filed an application under 49 CFR 1152.22 for it to abandon, and for the DRGW to discontinue its trackage rights on, a line of railroad extending from milepost 459.20 near Hope to milepost 491.20 near Bridgeport, a distance of approximately 31.24 miles (milepost 478.05 = milepost 478.81) in Dickinson and Saline Counties, KS. By letter filed November 12, 1997, UPRR notified the Board that it had discontinued service on the line as authorized in the CITU served on September 10, 1996. In Docket No. AB-3 (Sub-No. 133X), MPRR filed a petition for exemption under 49 U.S.C. 10505 from the prior approval requirements of 49 U.S.C. 10903-04 to abandon an approximately 8.5-mile rail line between milepost 680.0 near Iowa Junction and milepost 688.5 near Manchester in Jefferson Davis and Calcasieu Parishes, LA. In Docket No. AB-12 (Sub-No. 184X), Southern Pacific Transportation Company (SPT) filed a petition for exemption under 49 U.S.C. 10505 from the prior approval requirements of 49 U.S.C. 10903-04 to abandon an 85.5- mile line of its rail line between milepost 360.1, near Wendel, and milepost 445.6, near Alturas, in Modoc and Lassen Counties, CA. In Docket No. AB-12 (Sub-No. 187X), SPT filed a notice of exemption under 49 CFR 1152 Subpart F--Exempt Abandonments and Discontinuances to abandon approximately 10.5 miles of its Seabrook-San Leon Line from milepost 30.0 near Seabrook, to milepost 40.5 near San Leon, in Galveston and Harris Counties, TX. On November 20, 1996, a decision and notice of interim trail use or abandonment was served, authorizing a 180- day period for the City of Dickinson to negotiate an interim trail use/rail banking agreement with SPT. In Docket No. AB-33 (Sub-No. 93X), Union Pacific Railroad Company (UPRR) filed a notice of exemption under 49 CFR 1152 Subpart F--Exempt Abandonments and Discontinuances to abandon approximately 5.18 miles of the Whittier Junction-Colima Junction line (portion of the Anaheim Branch) from milepost 0.0 near Whittier Junction to milepost 5.18 near Colima Junction, in Los Angeles County, CA. On December 13, 1996, a decision and notice of interim trail use or abandonment was served, authorizing a 180-day period for the City of Whittier to negotiate an interim trail use/rail banking agreement with UPRR. In Docket No. AB-33 (Sub-No. 96), UPRR filed an application under 49 CFR 1152.22 to abandon approximately 38.4 miles of rail line extending from milepost 51.0 near Barr to milepost 89.4 near Girard in Menard, Sangamon, and Macoupin Counties, IL. In Docket No. AB-33 (Sub-No. 97X), UPRR filed a notice of exemption under 49 CFR 1152 Subpart F--Exempt Abandonments and Discontinuances to abandon approximately 14.6 miles of the DeCamp-Edwardsville line (portion of the Madison Subdivision) from milepost 119.2 near DeCamp to milepost 133.8 near Edwardsville, in Madison County, IL. In Docket No. AB-33 (Sub-No. 98X), UPRR filed a petition for exemption under 49 U.S.C. 10505 from the prior approval requirements of 49 U.S.C. 10903-04 to abandon its 14.98-mile rail line from milepost 133.8 near Edwardsville to milepost 148.78 near Madison, in Madison County, IL. In Docket No. AB-33 (Sub-No. 99X), UPRR filed a notice of exemption under 49 CFR part 1152 Subpart F--Exempt Abandonments and Discontinuances to abandon approximately 12.0 miles of the Little Mountain Junction-Little Mountain Line (portion of the Little Mountain Branch) from milepost 0.0 near Little Mountain Junction to milepost 12.0 near Little Mountain, in Box Elder and Weber Counties, UT. By letter filed December 22, 1997, and amended on December 31, 1997, UPRR notified the Board that it had exercised the authority conferred by the NITU as follows: (1) service was discontinued over the 10-mile portion of the line extending from milepost 1.0 near Little Mountain Junction to milepost 11.0 near Little Mountain, UT; (2) the 1-mile portion of the line extending from milepost 0.0 to milepost 1.0 near Little Mountain Junction, UT, was reclassified to yard trackage; and (3) the 1-mile portion of the line extending from milepost 11.0 to milepost 12.0 near Little Mountain, UT, was reclassified to yard trackage. The negotiation periods for the CITUs served on September 10, 1996, and the notices of interim trail use or abandonment (NITU), served and published in the Federal Register on August 12, 1996, authorizing among other things, a 180-day period for MPRR, UPRR and SPT to negotiate an interim trail use/rail banking agreement with various parties and governmental agencies, are scheduled to expire on February 8, 1998. By letter filed January 23, 1997, UPRR requests an extension of the CITU and NITU negotiation periods for these proceedings through August 8, 1998. UPRR states that it has not consummated any of these abandonments and has not negotiated with the parties interested in the lines because of the uncertainty as to the timing of the abandonments. UPRR also stated, that as noted in the February 10, 1997 decision, the timing of the abandonments will be determined by ongoing merger implementation, the securing of labor implementing agreements, systems integration, and completion of various capital projects outlined in the merger. UPRR indicates that it has consummated abandonment of a portion of the line involved in Docket No. AB-33 (Sub-No. 94X), Union Pacific Railroad Exemption Company--Abandonment Exemption--Magnolia Tower-Melrose Line in Alameda County, CA, but it also requests an extension of the negotiating period under the NITU issued in that proceeding until April 8, 1998. That particular extension request will not be addressed in the present decision but will be handled in a separate decision. It is ordered: 1. The negotiating periods for negotiations for interim trail use/rail banking in these proceedings are extended to August 8, 1998. Decided: January 21, 1998 Service Date: January 26, 1998 ----------------------------------------------------------------------- SURFACE TRANSPORTATION BOARD DECISION STB Docket No. AB-55 (Sub-No. 555X) CSX TRANSPORTATION, INC.--ABANDONMENT EXEMPTION--IN ALACHUA COUNTY, FL In the above-entitled proceeding, no environmental or historic preservation issues have been raised by any party or identified by the Section of Environmental Analysis. Accordingly, a Finding of No Significant Impact under 49 CFR 1105.10(g) will be made pursuant to 49 CFR 1011.8(c)(10). It is ordered: 1. Abandonment of the involved rail line will have no significant effect on the quality of the human environment and conservation of energy resources or on historic resources. Decided: January 15, 1998 Service Date: January 26, 1997 ----------------------------------------------------------------------- DEPARTMENT OF TRANSPORTATION Surface Transportation Board [STB Finance Docket No. 33542] CSX Transportation, Inc.--Trackage Rights Exemption--Consolidated Rail Corporation and Indiana Harbor Belt Railroad Consolidated Rail Corporation (Conrail), as owner, and Indiana Harbor Belt Railroad Company (IHB), as operator, have agreed to grant overhead trackage rights to CSX Transportation, Inc. (CSXT), to operate its trains, locomotives, cars, and equipment with CSXT s own crews over Conrail's Kankakee Line between Michigan Avenue, Indiana Harbor, IN, milepost 0.0ñ, and Osborn, IN, milepost 4.8ñ, at the connection between Conrail's Kankakee Line and the Norfolk and Western Railway Company, a total distance of approximately 4.8 miles. The trackage rights are restricted to bridge traffic only between the termini of the trackage rights for trainload movements of finished automobiles and associated empty equipment to and from the Ford Mixing Center in the Calumet Yard area. Pursuant to a trackage rights agreement, dated April 9, 1906, Conrail granted trackage rights to IHB to operate over portions of its railroad, including that portion of the Kankakee Line which CSXT will acquire upon the effective date of this exemption. Since IHB acts as agent on behalf of Conrail in the performance of supervision, control and maintenance of this line of railroad, IHB is included as a party to the trackage rights agreement. The transaction is expected to be consummated on January 19, 1998, the effective date of the exemption. Decided: January 16, 1998. Service Date: January 26, 1998 ----------------------------------------------------------------------- SURFACE TRANSPORTATION BOARD DECISION STB Docket No. AB-32 (Sub-No. 65X) BOSTON AND MAINE CORPORATION--ABANDONMENT EXEMPTION--IN CARROLL COUNTY, NH Boston and Maine Corporation (B&M) filed a notice of exemption under 49 CFR 1152 Subpart F--Exempt Abandonments and Discontinuances to abandon an approximately 10.80-mile line of railroad on the Conway Branch between milepost B-111.0 and milepost B-121.80 in Ossipee, Carroll County, NH. Notice of the exemption was served and published in the Federal Register on December 3, 1997. The exemption became effective on January 2, 1998. On January 13, 1998, the National Geodetic Survey (NGS) late-filed comments identifying 12 geodetic station markers that may be affected by the proposed abandonment. NGS requests that it be notified 90 days in advance of any activities that would disturb or destroy these markers to plan for their relocation. Therefore, SEA recommends that a condition be imposed requiring B&M to consult with the NGS and provide NGS with 90 days' notice prior to disturbing or destroying any geodetic markers. It is ordered: 1. This proceeding is reopened. 2. Upon reconsideration, the exemption of the abandonment of the rail line described above is subject to the condition that B&M consult with the NGS and provide NGS with 90 days' notice prior to disturbing or destroying any geodetic markers. Decided: January 23, 1998 Service Date: January 27, 1998 ----------------------------------------------------------------------- SURFACE TRANSPORTATION BOARD ENVIRONMENTAL ASSESSMENT DOCKET NO. AB-55 (Sub. No. 558X) CSX Transportation, Inc. - Abandonment in Franklin County, Tennessee In the above entitled proceeding, CSX Transportation, Inc. (CSXT)has filed a notice of exemption under 49 CFR 1152.50 seeking exemption from the requirements of 49 U.S.C. 10903 in connection with the abandonment of its line of railroad between Milepost OJC-0.30 and Milepost OJC-1.71 at the end of the track, a distance of approximately 1.41 miles in Decherd, Franklin County, TN. The right-of-way passes through light industrial and undeveloped areas in Decherd, TN. CSXT states in its application that the only patron on the line, Peabody Tectank, has not generated any originating or terminating rail traffic during the past two years. We recommend that no environmental conditions be placed on any decision granting abandonment authority. Service Date: January 27, 1998 ----------------------------------------------------------------------- DEPARTMENT OF TRANSPORTATION Surface Transportation Board [STB Finance Docket No. 33508] Missouri Central Railroad Company--Acquisition and Operation Exemption--Lines of Union Pacific Railroad Company Missouri Central Railroad Company (MCRR), a noncarrier, has filed a verified notice of exemption under 49 CFR 1150.31 to acquire from GRC Holdings Corporation (GRCH) and to operate a 244.5-mile line of railroad currently owned by Union Pacific Railroad Company (UP) between Vigus, MO (milepost 19.0), and Pleasant Hill, MO (milepost 263.5). MCRR also is acquiring directly from UP incidental trackage rights over UP's lines of railroad between Vigus (milepost 19.0) and Rock Island Junction, MO (milepost 10.3), and between Pleasant Hill (milepost 263.5) and Leeds Junction, MO (milepost 288.3), a total distance of 33.5 miles. The earliest date possible for consummation of the acquisition from GRCH is March 17, 1998, 60 days after GRC certified, in the related proceeding below, that it posted the required notice at the affected employees workplace and served notice of the transaction, as required, on the national offices of the labor unions with employees on the affected line. This transaction is related to STB Finance Docket No. 33537, GRC Holdings Corporation--Acquisition Exemption--Union Pacific Railroad Company, wherein GRCH has concurrently filed a verified notice of exemption to acquire the above-noted 244.5-mile line from UP. Decided: January 20, 1998. Service Date: January 27, 1998 ----------------------------------------------------------------------- DEPARTMENT OF TRANSPORTATION Surface Transportation Board [STB Finance Docket No. 33537] GRC Holdings Corporation--Acquisition Exemption--Union Pacific Railroad Company GRC Holdings Corporation (GRCH), a noncarrier, has filed a verified notice of exemption under 49 CFR 1150.31 to acquire from Union Pacific Railroad Company (UP) a 244.5-mile line of railroad between Vigus, MO (milepost 19.0), and Pleasant Hill, MO (milepost 263.5). GRCH intends immediately to convey to Missouri Central Railroad Company (MCRR) the assets necessary to conduct railroad operations over the line. The earliest date possible for consummation of the transaction is March 17, 1998, 60 days after GRCH certified that it posted the required notice at the affected employees workplace and served notice of the transaction, as required, on the national offices of the labor unions with employees on the affected line. This transaction is related to STB Finance Docket No. 33508, Missouri Central Railroad Company--Acquisition and Operation Exemption--Lines of Union Pacific Railroad Company, wherein MCRR has filed a verified notice of exemption to acquire: (1) the above-noted railroad assets from GRCH, and (2) specified incidental trackage rights directly from UP. Decided: January 20, 1998. Service Date: January 27, 1998 ----------------------------------------------------------------------- DEPARTMENT OF TRANSPORTATION Surface Transportation Board [STB Finance Docket No. 33539] The Burlington Northern and Santa Fe Railway Company Trackage Rights Exemption Southern Pacific Transportation Company Southern Pacific Transportation Company (SPT) has agreed to grant overhead trackage rights to The Burlington Northern and Santa Fe Railway Company (BNSF) over SPT's line between Caldwell, TX, in the vicinity of SPT's Ennis Subdivision milepost 30.8, and Placedo, TX, in the vicinity of SPT's Victoria Subdivision milepost 14.2, a distance of approximately 152.7 miles. The trackage rights are limited to southbound movements and are provided solely to facilitate directional operations between Houston, TX, and Placedo. In addition, the trackage rights will continue only so long as SPT continues to operate directionally between Houston and Placedo. The transaction was scheduled to be consummated on January 19, 1998. The purpose of the trackage rights is improve the operating efficiencies of SPT and BNSF. Decided: January 20, 1998. Service Date: January 27, 1998 ----------------------------------------------------------------------- SURFACE TRANSPORTATION BOARD DECISION STB Finance Docket No. 33522 CHICAGO SOUTHSHORE & SOUTH BEND RAILROAD --PETITION FOR DECLARATORY ORDER-- STATUS OF TRACK AT HAMMOND, IN Chicago SouthShore & South Bend Railroad (CSS) has filed a petition for a declaratory order seeking a determination that a certain segment of its track is exempt from the Board's regulatory jurisdiction under 49 U.S.C. 10906, and, thus, that CSS need not obtain Board approval under 49 U.S.C. 10903 to abandon this track. The track in question is approximately 1.8 miles (9,520 feet) long and, according to the map attached to the petition, appears to be located at or near Hammond, IN. It connects to CSS's main line between South Bend, IN, and Kensington, IL, by a switch at milepost 64.2, and is stub- ended, terminating inside the Harbison Walker Facility (Harbison), the only shipper located on the track. The track has no mileposts, has never been shown in railroad timetables, and was not specifically listed in the notice of exemption whereby CSS acquired its main line. CSS contends that the only activity on the track since its purchase has been to switch cars for loading and unloading Harbison's freight and, therefore, no through freight trains have operated on the track since it was acquired by CSS. According to CSS, the track is in need of immediate repair and has been embargoed because of poor conditions since September 17, 1997. CSS asks the Board to issue a declaratory order that this track qualifies, under 49 U.S.C. 10906, as a "spur, industrial, team, switching, or side" track and thus is exempt from Board jurisdiction. Under the Board's authority in 5 U.S.C. 554(e) and 49 U.S.C. 721, a proceeding is instituted to resolve the question CSS has raised. A procedural schedule is set forth below. CSS has essentially filed its opening statement with its petition and has requested expedited handling so that it may act promptly to resolve the current, embargoed status of the track in question if the Board finds that the track is not exempt under section 10906. The petition does not show that Harbison has been notified of the filing of the petition. Accordingly, CSS will be required to serve a copy of its petition and this decision upon Harbison within 5 days of the service date. It is ordered: 1. A declaratory order proceeding is instituted. This proceeding will be handled under the modified procedure, on the basis of written statements submitted by interested parties. All parties must comply with the Rules of Practice, including 49 CFR 1112 and 1114. 2. CSS must serve a copy of its petition and a copy of this decision upon Harbison by February 2, 1998. 3. Interested parties may file replies to the petition by February 23, 1998. 4. CSS may file rebuttal comments by March 5, 1998. Decided: January 23, 1998 Service Date: January 28, 1998 ----------------------------------------------------------------------- DEPARTMENT OF TRANSPORTATION Surface Transportation Board [STB Docket No. AB-31 (Sub-No. 31X)] Grand Trunk Western Railroad, Incorporated--Abandonment Exemption--in Oakland County, MI Grand Trunk Western Railroad Incorporated (GTW) has filed a notice of exemption under 49 CFR 1152 Subpart F--Exempt Abandonments to abandon a 0.72-mile line of its railroad between milepost MP-0.0 (south end) and MP-0.72 (north of Tregent Street) on the Cass City Subdivision in Pontiac, Oakland County, MI. The line traverses United States Postal Service Zip Code 48342. Provided no formal expression of intent to file an offer of financial assistance (OFA) has been received, this exemption will be effective on February 28, 1998, unless stayed pending reconsideration. Pursuant to the provisions of 49 CFR 1152.29(e)(2), GTW 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 GTW's filing of a notice of consummation by January 29, 1999, and there are no legal or regulatory barriers to consummation, the authority to abandon will automatically expire. Decided: January 22, 1998. Service Date: January 29, 1998 ----------------------------------------------------------------------- DEPARTMENT OF TRANSPORTATION Surface Transportation Board [STB Docket No. AB-192 (Sub-No. 1)] The Birmingham Southern Railroad Company Abandonment and Discontinuance of Trackage Rights in Jefferson County, AL On January 9, 1998, the Birmingham Southern Railroad Company (BS) amended an application it filed with the Surface Transportation Board (Board) on December 22, 1997, to abandon a portion of its line of railroad known as the Birmingham Branch, extending from BS Milepost 146+97.22 near East Thomas Station to the end of the line near Birmingham Station, a distance of 3.869 miles, in Jefferson County, AL; and to discontinue its trackage rights over Norfolk Southern Railway Company's (NSR) line between NSR's Mileposts 143 and 144 near Birmingham Station, a distance of .614 miles in Jefferson County, AL. The trackage rights include the right of BS to travel over approximately 500 feet of main line track over which NSR continues to maintain traffic, and approximately 2,741 feet of yard track which was removed by NSR approximately 10 years ago. The line includes only one station, Birmingham Station No. 605, near BS Milepost 25+67.42 and traverses United States Postal Service ZIP Codes 35203, 35204 and 35233. BS amended its original filing to clarify that the portion of the Birmingham Branch sought to be abandoned consists of only two segments: (1) the Birmingham Running Track, extending a distance of 2.78 miles between BS station 0+00 and BS station 146+97.22; and (2) the Birmingham Yard, extending a distance of 1.08 miles between BS station 0+00 and BS station 56+83.94. BS maintains that a third segment originally included in its December 22, 1997 filing (the Ingalls Iron Works Track, extending a distance of .29 miles between BS station 3+20.28 and BS station 18+41.48), is actually exempt industry/switching track that should not have been included in the abandonment application. Accordingly, BS does not seek abandonment authorization for the Ingalls Iron Works Track. The abandonment application will be deemed to have been filed on January 9, 1998, the date the clarification was filed, and hence the procedural schedule will run from that date. The Birmingham Branch has appeared on the applicant's system diagram map or has been included in its narrative in category 1 since 1990. Decided: January 22, 1998. Service Date: January 29, 1998 ----------------------------------------------------------------------- SURFACE TRANSPORTATION BOARD DECISION AND NOTICE OF INTERIM TRAIL USE OR ABANDONMENT STB Docket No. AB-406 (Sub-No. 7X) CENTRAL KANSAS RAILWAY, LIMITED LIABILITY COMPANY --ABANDONMENT EXEMPTION-- IN BARTON, ELLSWORTH AND RICE COUNTIES, KS By decision served and notice published in the Federal Register on April 29, 1997, the Board granted an exemption under 49 U.S.C. 10502 from the prior approval requirements of 49 U.S.C. 10903 permitting the abandonment by Central Kansas Railway, Limited Liability Company (CKR) of a 53.2-mile portion of its Little River Subdivision from milepost 577.1 near Lyons to milepost 594.1 near Lorraine, then from milepost 20.7 near Lorraine to milepost 56.9 near Galatia, in Barton, Ellsworth and Rice Counties, KS. The exemption became effective on May 29, 1997. On May 19, 1997, James D. Jennings of Jennings & Co. (Jennings) filed a request for issuance of a notice of interim trail use/rail banking (NITU) to enable him to negotiate with CKR for use of the line as a trail. By letter filed June 24, 1997, CKR indicated that the abandonment had not been consummated and that it was willing to negotiate with Jennings. In a decision served July 1, 1997, the Board issued a NITU, authorizing a 180-day period for Jennings to negotiate an interim trail use/railbanking agreement with CKR for the right-of-way. The NITU negotiating period expired on December 28, 1997. On December 24, 1997, Iowa Trails Council (ITC) filed a request for issuance of a new NITU for the above-described rail line to enable it to negotiate with CKR for use of the line as a trail.(1) ITC submitted the requisite statement of willingness to assume financial responsibility for interim trail use/rail banking in compliance with 49 CFR 1152.29, and acknowledged that the use of the right-of-way as a trail is subject to future reactivation of rail service. By letter filed December 24, 1997, CKR states that it is agreeable to the issuance of a NITU to ITC. It is ordered: 1. This proceeding is reopened. 2. The decision served and published in the Federal Register on April 29, 1997, exempting the abandonment by CKR of the line described above, is modified to the extent necessary to implement interim trail use/rail banking as set forth below, for a period of 180 days from December 28, 1997, or until June 26, 1998. 3. If an interim trail use/rail banking agreement is reached, it must require the trail user to assume, for the term of the agreement, full responsibility for management of, for any legal liability arising out of the transfer or use of (unless the user is immune from liability, in which case it need only indemnify the railroad against any potential liability), and for the payment of any and all taxes imposed on the right-of-way. 4. Interim trail use/rail banking is subject to the future restoration of rail service and to the user continuing to meet the financial obligations for the right-of-way. 5. If the user intends to terminate trail use, it must send the Board a copy of this decision and notice and request that trail use be vacated on a specified date. 6. If an agreement for interim trail use/rail banking is reached by June 26, 1998, interim trail use may be implemented. If no agreement is reached by that date, CKR may fully abandon the line. Decided: January 27, 1998 Service Date: January 29, 1998 ----------------------------------------------------------------------- SURFACE TRANSPORTATION BOARD DECISION STB Docket No. AB-33 (Sub-No. 115X) UNION PACIFIC RAILROAD COMPANY--ABANDONMENT EXEMPTION--IN WAUKESHA COUNTY, WI In the above-entitled proceeding, no environmental or historic preservation issues have been raised by any party or identified by the Section of Environmental Analysis. Accordingly, a Finding of No Significant Impact under 49 CFR 1105.10(g) will be made pursuant to 49 CFR 1011.8(c)(10). It is ordered: 1. Abandonment of the involved rail line will have no significant effect on the quality of the human environment and conservation of energy resources or on historic resources. Decided: January 23, 1998 Service Date: January 30, 1998 ----------------------------------------------------------------------- SURFACE TRANSPORTATION BOARD ENVIRONMENTAL ASSESSMENT NO. AB-55 (SUB-NO. 556X) CSX Transportation, Inc. - Abandonment Exemption In Raleigh County, West Virginia In this proceeding, CSX Transportation, Inc. (CSXT)has filed a petition under 49 U.S.C. 10502 seeking exemption from the requirements of 49 U.S.C. 10903 in connection with the abandonment of its railroad line from Milepost CLP-15 at R.O. Junction and Milepost CLP-18.3 at the end of the track at Picard, a total distance of approximately 3.0 miles, in Raleigh County, WV. In its application, CSXT states that the only active shipper on the line, Zalkin Coal Sales, Inc., last shipped coal in 1992 and has since declared bankruptcy. In 1996, CSXT handled the movement of two locomotives that Zalkin sold to the Elk River Railroad. The line traverses mountainous and forested areas with sparse populations. We recommend that no environmental conditions be placed on any decision granting abandonment authority. Service Date: January 30, 1998 ----------------------------------------------------------------------- SURFACE TRANSPORTATION BOARD DECISION STB Docket No. AB-167 (Sub-No. 1168X) CONSOLIDATED RAIL CORPORATION--ABANDONMENT EXEMPTION-- IN BROOKS AND HANCOCK COUNTIES, WV By decision and notice of interim trail use or abandonment (NITU) served January 24, 1997, a 180-day period was authorized for West Virginia Rail Authority, City of Weirton and Harmon Creek Trail Association to negotiate an interim trail use/rail banking agreement with Consolidated Rail Corporation (Conrail) for a 4.00-mile portion of the Weirton Secondary Track between milepost 35.70 and milepost 39.70 in Brooke and Hancock Counties, WV. The January 24 decision also imposed a condition requiring Conrail to confine its salvage activities to the existing right-of-way and not disturb any previously undisturbed prime farmland. The initial 180- day period was scheduled to expire on July 25, 1997, but was extended through January 21, 1998, by decision served July 24, 1997. On January 20, 1998, the Harmon Creek Trail Association, Weirton Park and Recreation Board, and the West Virginia Rail Authority (collectively, petitioners) filed a request for an additional 180-day extension of the negotiation period. Petitioners state that the additional time is needed to resolve the bridge issue, and to coordinate participation of the West Virginia Rail Authority and others, and to further assemble and review information. Petitioners also state that the evaluation of structures on the corridor has begun and Washington County, Pa. Planning is meeting with township officers on the issue. By facsimile dated January 28, 1998, Conrail agreed to the extension. It is ordered: 1. The negotiating period under the NITU is extended to July 20, 1998. Decided: January 29, 1998 Service Date: January 30, 1998 ----------------------------------------------------------------------- SURFACE TRANSPORTATION BOARD DECISION Finance Docket No. 32162 INDIANA HI-RAIL CORPORATION--LEASE AND OPERATION EXEMPTION--NORFOLK AND WESTERN RAILWAY COMPANY LINE BETWEEN ROCHESTER AND ARGOS, IN, AND--EXEMPTION FROM 49 U.S.C. 10761, 10762, AND 11144 In a decision served on March 31, 1993, the ICC granted Indiana Hi-Rail Corporation (IHR) exemptions under 49 U.S.C. 10505 from the prior approval requirements of 49 U.S.C. 11343 et seq. for the lease and operation of a 13-mile line of the Norfolk and Western Railway Company (N&W), between milepost I-95.6 at Rochester, IN, and milepost I-108.6 at Argos, IN (Rochester Line). The decision was not appealed and became effective on May 1, 1993. The Rochester Line is one of a pair of lines Central Railroad Company of Indianapolis (Central) leased from N&W in 1989. Shortly after the Central/N&W lease was consummated, IHR, a Class III rail carrier, obtained authority to serve the Rochester Line under a trackage rights agreement with Central. IHR subsequently entered into a new, direct lease with N&W, and, pursuant to an agreement with Central and N&W, it replaced Central as operator of the Rochester Line. A joint petition for exemptions for Central to discontinue its lease and operation of the Rochester Line, for IHR to discontinue its trackage rights over the Rochester Line, and for N&W to abandon related track between Rochester and Caecum, IN, was rejected in 1994. Central's discontinuance request subsequently was exempted from regulation while IHR's request to discontinue its trackage rights was reported to be pending before the United States Bankruptcy Court for the Southern District of Indiana, Indianapolis Division. (STB served May 14, 1996). On December 26, 1995, Wilson Fertilizer & Grain Company (Wilson), the only active shipper on the Rochester Line, filed a petition to revoke the exemption granted in the March 31, 1993 decision in Finance Docket No. 32162 and a petition for a declaratory order in No. 41671 with respect to charges IHR had assessed for demurrage, switching, and other unspecified services. Mr. R. Franklin Under, IHR's Trustee (Trustee), responded by filing a request for waiver of the reply due date and a reply. Wilson did not object to the waiver request but filed a response, arguing that the late-filed reply actually constituted a motion to dismiss. We are accepting both the late-filed reply and response, and we are denying the petition to revoke. Although we are also denying the petition for a declaratory order, we will provide guidance that may be of assistance to the parties. Some of the issues in these proceedings appear to have been mooted by subsequent developments. On October 8, 1997, Fulton County, L.L.C. (FC), filed a verified notice of exemption under 49 CFR 1150.31 to acquire the Rochester Line from N&W and to operate over it. The exemption went into effect on October 15, 1997, and, based on filings made with the Board in Indiana Hi-Rail Corporation Trustee's Amended Plan of Reorganization and Disclosure Statement, STB Finance Docket No. 33491, in which we issued a decision on December 12, 1997, in response to a request by the Bankruptcy Court that we do so, the Bankruptcy Court has approved this sale transaction, among others, and directed that it go forward on December 18, 1997, with operations by FC to begin the same day. Because the records in Finance Docket No. 32162 and No. 41671 have not been updated to reflect these recent developments (and it appears unnecessary to delay issuance of a decision in these proceedings to update the records simply to ascertain the degree to which the proceedings are moot), we will proceed to resolve the matters before us without attempting to identify the issues that are now moot. The recent proceedings, however, reflect the fact that IHR is no longer providing the service about which Wilson is complaining in the present proceedings. Wilson contends that, since IHR was forced into chapter 11 bankruptcy on November 15, 1994, IHR repeatedly failed to provide adequate rail service in violation of its common carrier obligation under 49 U.S.C. 11101(a) and its obligation under the bill of lading contract. Wilson states that virtually every factor cited by the ICC for granting the exemptions in the March 31 decision has proven groundless, in light of IHR's poor service and unresponsive management. Contrary to the general findings in the March 31 decision, Wilson states, IHR: (1) could not provide same day switching service because of where it located its crews and the travel time involved in operating the 13-mile Rochester Line; (2) took as much as 5 to 7 days to deliver cars, and scheduled deliveries could be up to 3 days late because crews were not available on any consistent basis; (3) did not provide timely switching, which was essential to accumulate and load 50 to 100-car unit trains of grain in a prompt and efficient manner; and (4) failed, notwithstanding repeated assurances to the contrary, to make a significant track investment (e.g., tie replacement and track renewal), in violation of its lease with N&W. Additionally, Wilson claims that IHR failed to make any effort to settle a claim for more than $5,000 in damages that resulted from an accident in December 1994. According to Wilson, an IHR engine hooked a storage bin that belonged to Rochester Metals (Rochester), the adjoining landowner, and ran it through one of Wilson's warehouses. The bin had been relocated and allegedly was obstructing the track leading to Wilson's facilities. IHR characterizes the accident as unavoidable and notes that Wilson was fully compensated for the damage by Rochester's insurance company in due time. In its reply, Wilson contends that the engine could have, and should have, stopped if the clearance was inadequate because of the new position of the bin. According to Wilson, the accident primarily demonstrates that IHR's crew failed to use due care, and it attributes the failure to inadequate instruction and supervision. Wilson states that it is dependent on IHR for rail service but that, since the November 15, 1994 bankruptcy filing, rail service has been deplorable and IHR's response to its many complaints has been negligible. Wilson contends that NS increased the grain rates from Rochester because of the poor equipment turnaround; that it experienced a substantial loss of business, including two unit train customers, and a significant reduction in rail traffic volume because of the deteriorated rail service provided by IHR; and that it had to give serious consideration to closing its facilities and terminating its grain elevator business at Rochester. Aside from its comments relating to the accident, IHR basically claims that the problems cited by Wilson reflect the normal type of commercial and/or operational disputes that arise between a carrier and a shipper. It otherwise attributes the delays in releasing cars to NS, which allegedly required the payment of outstanding bills as a condition to car release. Under 49 U.S.C. 10505(d), an exemption may be revoked, in whole or in part, when the application of a provision of subtitle IV of Title 49 to a person, class, or transportation is necessary to carry out the rail transportation policy of 49 U.S.C. 10101a. To justify revocation, a petitioner must meet its burden of proof by articulating reasonable, specific concerns under the revocation criteria. When, as here, an exemption has become effective, a revocation request is treated as a petition to reopen and revoke and, under 49 CFR1115.3(b), it must state in detail whether revocation is supported by material error, new evidence, or substantially changed circumstances. No specific time limits apply to the filing of petitions to reopen and revoke exemptions granted under 49 U.S.C. 10505. However, the time elapsed is relevant and may be a factor in ruling on the merits of a request to reopen and revoke an exemption, particularly when the exemption pertains to a transaction that cannot readily be undone. As relevant here, Wilson was served with copies of IHR's petition for exemption and the March 31 decision. IHR went into bankruptcy on November 15, 1994, after which, apparently, its service quickly deteriorated. Yet, Wilson did not object in any way to the fact that IHR was operating under the exemption until the instant petition to revoke was filed, more than 2 years after the decision had become effective and the transaction had been consummated, and over 13 months after the apparent deterioration in service. When so much time has elapsed, concerns for administrative finality, repose, and detrimental reliance must be balanced against any benefits to be derived from reopening and revocation of the exemption. Moreover, revocation would not result in any benefits to Wilson. We find that, under 49 U.S.C. 10505(d), Wilson has failed to justify the reopening and revocation of the lease and operation exemption. Wilson has not alleged that the March 31 decision contained material error or relied on false or misleading information. Nor has it argued that the evidence of record failed to support the ICC's finding that the lease and operation exemption was consistent with the rail transportation policy. Instead, its argument in support of reopening essentially relies on new evidence and substantially changed circumstances. In effect, Wilson argues that, since the November 15 bankruptcy filing, rail service has deteriorated from an acceptable level under IHR's prior leases with Central and N&W to a level where revocation was necessary to subject the transaction to full regulatory review under the public interest standards of 49 U.S.A. et seq. At the outset, we note that exemptions from prior approval requirements may not be revoked simply because the transaction subsequently fails to live up to the expectations of the parties and/or the affected public, respectively, who sought or supported it. Subjecting exempted transactions to requests for reopening and reconsideration, with hindsight as the dominant consideration, would place an intolerable burden on the exemption process. A burden of this nature would constitute a disincentive to the exemption process and, as such, would be inconsistent with the legislative intent to encourage the use of exemptions. The rail service provided by IHR under the lease and operate exemption apparently was satisfactory until the bankruptcy filing. The bankruptcy filing, however, does not establish error in the ICC's March 31 decision or provide a basis for revoking the exemption that was granted. Moreover, revoking the exemption will do nothing to give Wilson the level of service it seeks. Indeed, a new operator is now on the line and, as a consequence, this aspect of the case is essentially moot. Accordingly, Wilson's petition to reopen and revoke IHR's lease and operation exemption will be denied. Wilson had alternative remedies available to it, short of revocation, once service deteriorated after the bankruptcy filing. For example, it could have filed a complaint challenging the adequacy of rail service under 49 U.S.C. 11101(a) and 11121(a)(1). Additionally, it could have filed a feeder line application under 49 U.S.C. 10910. Revocation of the exemption simply was not necessary or appropriate to obtain better service from IHR. It is ordered: 1. The late-filed reply and response are accepted into the record. 2. The petition to reopen and revoke in Finance Docket No. 32162 and the petition for a declaratory order in No. 41671 are denied, and these proceedings are discontinued. Decided: January 22, 1998 Service Date: January 30,1998 ----------------------------------------------------------------------- DEPARTMENT OF TRANSPORTATION Surface Transportation Board [STB Finance Docket No. 33543] Southern Pacific Transportation Company--Trackage Rights Exemption--Union Pacific Railroad Company Union Pacific Railroad Company (UP) has agreed to grant overhead trackage rights to Southern Pacific Transportation Company (SP) over UP's tracks known as the Los Angeles Subdivision from milepost 158.9 near Daggett to milepost 162.0 near Yermo, a distance of 3.1 miles in the vicinity of Los Angeles, CA. SP states that it filed this notice of exemption to extend the trackage rights it received from UP in STB Finance Docket No. 33129, effective September 26, 1996 (STB served Oct. 8, 1996), which included, among others, trackage rights over UP's Los Angeles Subdivision. The transaction was expected to be consummated on or as soon as possible after January 21, 1998, the effective date of the exemption. Decided: January 22, 1998. Service Date: January 30, 1998 ----------------------------------------------------------------------- DEPARTMENT OF TRANSPORTATION Surface Transportation Board [STB Finance Docket No. 33544] Union Pacific Railroad Company Trackage Rights Exemption Southern Pacific Transportation Company Southern Pacific Transportation Company (SP) has agreed to grant overhead trackage rights to Union Pacific Railroad Company over SP's Del Rio Subdivision from milepost 210.70, near Tower 105, to milepost 219.33, near Withers, in the vicinity of San Antonio, a distance of 8.63 miles in Bexar County, TX. The earliest the transaction can be consummated is January 28, 1997, the effective date of the exemption (7 days after the notice of exemption was filed). The purpose of the trackage rights is to permit UP to improve the efficiency of its train operations and to assist in avoiding rail traffic congestion in the vicinity of San Antonio. Decided: January 23, 1998. Service Date: January 30, 1998 ============================================================ Comments or questions about this compilation should be directed to Paul Moore at 71367.1057@Compuserve.com. ============================================================