STB REPORT #9 - MAY 1 - 15, 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/ ****************************************************************************** SURFACE TRANSPORTATION BOARD ENVIRONMENTAL ASSESSMENT STB Docket NO. AB-55(SUB-NO. 559X) CSX Transportation, Inc.--Abandonment Exemption--in Atlanta, Fulton County, GA In this proceeding, CSX Transportation, Inc. (CSXT) has filed a petition in connection with the abandonment of a portion of its Atlanta Terminal Subdivision, Atlanta Service Lane, extending between milepost 4.87 at Memorial Drive to milepost 5.22 at Wylie Street, a distance of 0.35 miles in Atlanta, Fulton County, GA. In its petition, CSXT states that the only shipper on the line, Weyerhaeuser Corporation, shipped 37 carloads of scrap paper via rail from its Memorial Drive facility in 1996 and shipped 19 carloads via rail in 1997. Weyerhaeuser vacated this facility in May 1997 and there have been no shipments on this line since then. CSXT also states that Stein Steel is a rail patron on the line but will not be affected by this abandonment because that industry is served by another rail line. There are no other potential rail patrons on this line between Memorial Drive and Wylie Street. We recommend that no environmental conditions be placed on any decision granting abandonment authority. Based on the information provided from all sources to date, we conclude that, as currently proposed, abandonment of the line will not significantly affect the quality of the human environment. Therefore, the environmental impact statement process is unnecessary. Service Date - May 1, 1998 ----------------------------------------------------------------------- DEPARTMENT OF TRANSPORTATION Surface Transportation Board [STB Docket No. AB-290 (Sub-No. 200X)] Norfolk and Western Railway Company--Abandonment Exemption--in Dickenson and Buchanan Counties, VA Norfolk and Western Railway Company (NW) has filed a notice to abandon 3.34 miles of its line of railroad between milepost CL-13.56 at Duty and milepost CL-16.90 at Clinchfield Coal in Dickenson and Buchanan Counties, VA. The line traverses United States Postal Service Zip Codes 24217 and 24066. Provided no formal expression of intent to file an offer of financial assistance (OFA) has been received, this exemption will be effective on June 3, 1998, unless stayed pending reconsideration. NW 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 NW's filing of a notice of consummation by May 4, 1999, and there are no legal or regulatory barriers to consummation, the authority to abandon will automatically expire. Decided: April 23, 1998. Service Date - May 4, 1998 ----------------------------------------------------------------------- SURFACE TRANSPORTATION BOARD DECISION STB Ex Parte No. 575 REVIEW OF RAIL ACCESS AND COMPETITION ISSUES This proceeding was initiated to examine issues of rail access and competition in today's railroad industry. During two days of informational hearings, and in numerous written statements, we heard the complaints of shippers dependent on rail service that, as a result of consolidation in the industry, their competitive options have been limited, and that available remedies are burdensome, costly, and unresponsive. On April 17, 1998, we issued a decision addressing the concerns that had been raised. We found that, through administrative action, we could examine making it less costly and burdensome for aggrieved parties to obtain access to the regulatory system, and providing the opportunity for shippers with concerns about poor service to obtain service from an alternate carrier. Thus, we began one rulemaking proceeding, and intend to begin another shortly. We decided that the most appropriate way to achieve more effective utilization of smaller railroads in addressing the concerns raised by the shippers would be through discussions within the railroad industry. Thus, we directed railroads to meet and discuss this issue among themselves, and to report back to the Board by May 11, 1998. Finally, we concluded that certain issues -- in particular, issues relating to railroad revenue adequacy, the competitive access rules in general, and formalized railroad/shipper dialogue designed to help carriers find a more systematic way of addressing customer concerns -- would be better addressed at this time in a private-sector rather than governmental forum. Thus, as to revenue adequacy, we directed railroads to meet with shippers with a view toward selecting a panel of three disinterested experts to make recommendations as to an appropriate revenue adequacy standard, and to report back to the Board by May 15, 1998. As to competitive access, because we were convinced that railroads and shippers could, if they tried, find some common ground, we directed them to meet, negotiate, and report back to the Board by August 3, 1998. Finally, we directed railroads to report back to the Board by May 11, 1998, on their progress in establishing formalized dialogue with their shippers and their employees. On April 27, 1998, we received a letter from several shippers and shipper groups asking us to modify our April 17 order in two respects. "First, the Board should reverse the priorities of the revenue adequacy and competitive access issues. Competitive access is, by far, the most urgent matter to shippers. We also believe it will be difficult to reach agreement with the railroads on this issue, and therefore we first request that the order be modified to require the parties to report by May 29, rather than August 3, on whether significant progress is possible. Second, revenue adequacy, while important, is less urgent. Moreover, we question the need for the elaborate and expensive processes set forth in the Board's order. However, we are certainly willing to discuss revenue adequacy issues with the railroads. Indeed, recent pronouncements by railroad executives suggest that progress on the subject may be possible. Accordingly, we also request that the procedures on revenue adequacy ordered by the Board be suspended until shippers and the railroads enter discussions on this issue, and report back to the Board on the progress of these discussions. The deadline for this report should be May 29, 1998." On April 30, 1998, the Association of American Railroads (AAR) responded to the shippers letter. AAR points out that the schedule proposed by the shippers will allow little time for meaningful dialogue and consultation as to the competitive access issue. Although it says that it will participate in further negotiations on revenue adequacy, AAR also expresses its dismay that the shippers have apparently rejected the panel approach, which, as AAR describes it, would replace advocacy and contentiousness with objective economic analysis. At the outset, we will respond to the request that we reverse the priorities of the initiatives we set in motion. Our April 17 order raised several issues, but it did not prioritize among them. The fact that the date for the revenue adequacy report was set earlier than the date for the competitive access report did not reflect a higher priority for the revenue adequacy exercise. The due date for the report on revenue adequacy exercise was set earlier than the due date for the competitive access report merely because it was, and still is, our view that it would be simpler for interested parties to meet and select three unbiased experts than it would be to address and seek to resolve issues such as competitive access. We did not establish a hierarchy of objectives, and we urge all parties to take all of the initiatives in our April 17 order seriously. We also do not believe that our order set forth elaborate and expensive processes regarding revenue adequacy. At the hearings, shippers raised substantial concerns about the current revenue adequacy standards, while the railroads defended the need for a revenue adequacy standard that permits them to earn enough money to attract capital and to invest in needed facilities. Railroad and shipper representatives recommended referring the revenue adequacy question to one or more disinterested expert economists with no preconceived position on the issue, and so we directed railroads to meet with shippers with a view toward selecting a panel of three such experts to make recommendations as to an appropriate standard. Selection of a panel, as we envision it, should be a relatively straightforward exercise. The process from then on would not be an elaborate one, and it would not be particularly expensive overall if all of the parties agreed in advance to support the recommendations of the expert panel rather than to continue to pursue the revenue adequacy issue before the Board, the courts, and whatever other forums the railroad and shipping communities typically address. Nevertheless, as both the shippers and AAR indicate that progress through means other than the 3-expert panel is possible in addressing the revenue adequacy issue, we will give the shippers more time so that they can pursue the issue directly with the railroads. If they cannot reach agreement, however, we urge the parties not to reject, as the shippers apparently have done, the notion that the issue be resolved by a neutral expert or panel of experts. Moreover, given that the next conference is not scheduled until May 21, 1998, we do not believe that a reporting date of May 29, 1998 will provide an adequate opportunity for meaningful progress. Therefore, although we certainly will not preclude any party that wishes to do so from filing an interim report on May 29, 1998, or on any other date it deems appropriate, we request a report on the revenue adequacy issue by August 3, 1998. The shippers ask to shorten the reporting time for the competitive access issue, apparently because of their concern that it will be difficult to reach agreement with the railroads on this issue. We do not understand the shippers logic. At the hearings, shippers raised substantial concerns about the impediments that the existing regulations imposed on their ability to make a competitive access case, while the railroads expressed concern that opening up the competitive access rules could place them on a slippery slope toward total open access, which, in their view, would adversely affect them and the public. Because we were convinced that railroads and shippers could, if they tried, find some common ground on the issue of competitive access, in our May 17 order we directed them to meet, negotiate, and report back to the Board. We recognized that negotiations concerning competitive access might require substantial work, and that is why we did not request a report until August 3, 1998. Shortening the reporting time would send a message that we see little prospect for accommodation on any aspect of the competitive access issue. If that were our view, we would not have directed the railroads to negotiate with the shippers in the first place. Notwithstanding the tenor of the shippers letter, we continue to believe that some common ground can be reached if all parties can put aside their preconceived notions and enter negotiations with an open mind, committed to seeking some common ground rather than immediately assuming that governmental fiat is the only answer or that more litigious avenues must be pursued. Therefore, we continue to urge the parties to negotiate seriously to reach agreement on as many issues related to competitive access as possible. We request a report on August 3, 1998, although, again, we will not preclude any party that wishes to do so from filing an interim report on May 29, 1998, or on any other date it deems appropriate. It is ordered: 1. The shippers requests are governed by this decision. 2. The report on revenue adequacy is due on August 3, 1998, although any party that wishes to do so may file an interim report on May 29, 1998. 3. The report on competitive access is due on August 3, 1998, although any party that wishes to do so may file an interim report on May 29, 1998. Decided: May 4, 1998 Service Date - May 4, 1998 ----------------------------------------------------------------------- SURFACE TRANSPORTATION BOARD DECISION STB Docket No. AB-459 (Sub-No. 2X) CENTRAL RAILROAD COMPANY OF INDIANA--ABANDONMENT EXEMPTION-- IN DEARBORN, DECATUR, FRANKLIN, RIPLEY, AND SHELBY COUNTIES, IN In this decision, we are denying a petition for exemption filed by Central Railroad Company of Indiana (CIND or petitioner) to abandon its Shelbyville Line in Indiana. On January 14, 1998, CIND filed a petition to abandon a line of railroad known as the Shelbyville Line, extending from approximately milepost 23.0, near Thatcher station and the town of Greendale, to approximately milepost 81.0, near Shelbyville, a distance of approximately 58 miles in Dearborn, Decatur, Franklin, Ripley, and Shelby Counties, IN. Notice of the petition was published on February 2, 1998. Also on that date, the Board served a decision of the Secretary granting, in part, CIND's request for a protective order. Subsequently, in a decision served February 27, 1998, the Secretary denied a motion by CIND seeking an order denying discovery requests filed by certain persons who ship goods over the line or who otherwise have an interest in the proceeding, and who expressed an intent to oppose the petition. Thereafter, in a decision served April 1, 1998, we denied a motion by protestants that we exempt ourselves from the applicable statutory deadline for a decision on the merits, and that we compel certain types of discovery. A joint protest was filed by Decatur County, IN, City of Shelbyville, IN, Shelby County, IN, Consolidated Grain & Barge Co. (Consolidated), Premier Ag Coop (Premier), Greensburg Milling, Inc. (Greensburg Milling), Kolkmeier Bros. Feed & Grain (Kolkmeier), Kova Fertilizer, Inc. (Kova), Lowe's Pellet & Grain Co. (Lowe s), and Knauf Fiber Glass, GmbH (Knauf). The Indiana Department of Transportation (INDOT) filed a protest and a request that any grant of an exemption be made subject to a public use condition. Indiana Lieutenant Governor Joseph E. Kernan, Indiana State Senator Robert N. Jackman, and CIND engineer Robert E. Rosengarn filed letters opposing the petition. Hoosier Rails-to-Trails Council Inc. (Hoosier) filed a request for a public use condition and for the issuance of a notice of interim trail use or abandonment (NITU) under the National Trails System Act. Great Miami, Inc., submitted a notice of an intent to file an offer of financial assistance in the event the petition is granted. The United Transportation Union submitted a request for the imposition of labor protective conditions. CIND replied that it is willing to negotiate a trail use agreement with Hoosier and that it does not oppose INDOT's request for a public use condition, except to the extent that such a condition would prevent CIND from salvaging the line. On April 24, 1998, we received a petition from CIND, reflecting concurrences from the protestants and RailTex, Inc. (RailTex), asking that we hold this proceeding in abeyance. CIND states that it has entered an agreement with RailTex to sell the Shelbyville Line to it. That being the case, CIND recites that . . . in light of this development, CIND, RailTex and Protestants (the Parties ) agree that continuing the abandonment proceeding at this time would be inappropriate. CIND, however, has not requested the withdrawal of its petition for exemption at this time, and indicates that it will seek a decision from the Board on its petition if the acquisition by RailTex has not occurred by June 15, 1998. If CIND did not wish to pursue its petition following its agreement with RailTex, CIND could have withdrawn its petition. This case is subject to a deadline established by Congress. The parties fail to assert, much less demonstrate, that we may grant the relief they seek and still comply with the statute. Nor has CIND shown that our action on its outstanding petition will adversely affect its proposed sale of the Shelbyville Line to RailTex. CIND's system is comprised of an 81-mile line that extends from milepost 0.0, at Cincinnati, OH, to the southeast, to milepost 81.0, near Shelbyville, to the northwest, including a 23-mile southern segment connected to the subject Shelbyville Line. CIND purchased the entire line from Consolidated Rail Corporation in 1991. CIND has trackage rights over Conrail track from Shelbyville, through Indianapolis, IN, to Frankfort, IN, where CIND connects with its affiliate Central Railroad Company of Indianapolis (CERA). Petitioner also interchanges with Toledo, Peoria & Western Railway Corp. (TPW) at Frankfort and with Conrail at Indianapolis and Cincinnati. Petitioner indicates that, when it began operations on the line in 1992, the line generally was in FRA Class 2 condition but that, by November 1994, approximately 30 miles of the Shelbyville Line had deteriorated to FRA Class 1 condition. Petitioner asserts that it had deferred maintenance on the line due to severe financial losses and low traffic density. In 1995, however, CIND returned the 24-mile segment from Sunman (milepost 39.0) to Greensburg (milepost 63.0) to FRA Class 2 status by installing approximately 100 ties per mile. Thereafter, in the spring of 1996, CIND became aware of slippage of the right-of-way, erosion, and other problems between mileposts 23.0 and 39.0. CIND says it made temporary repairs, but, particularly with respect to slippage at milepost 32.8, conditions worsened. In early 1997, CIND embargoed the segment between mileposts 23.0 and 39.0 and advised Shelbyville Line shippers that it would continue to serve them via Shelbyville at increased rates. The embargo and the increased rates are the subject of the pending complaint proceeding. CIND indicates that it seeks to abandon the line because it is not economically feasible to restore service over it. Prior to the embargo, CIND provided service on the line using a two-man crew and a single engine stationed at Greensburg. On Mondays, Wednesdays, and Fridays, CIND operated southbound to its Valley Junction Yard, at milepost 17.0. On Tuesdays, Thursdays, and Saturdays, CIND operated northbound to interchange with Conrail at Shelbyville and with CERA at Hill Yard in Indianapolis. On days that traffic required and time permitted, CIND would switch its customers at Greensburg during northbound operations. Petitioner indicates that, during southbound operations, if time permitted, it would stop to switch Anchor Glass, a shipper situated east of Thatcher, at milepost 23.0. Petitioner does not consider Anchor Glass to be a shipper on the Shelbyville Line. There are five shippers on the Shelbyville Line: Kolkmeier is situated at St. Paul (milepost 73.0), and Premier, Kova, Lowe s, and Greensburg Milling are situated at Greensburg. The last two-named shippers are located on a 1.25-mile long spur that connects with the main line at milepost 63.0. Petitioner notes that Lowe's is at the end of the spur, and Greensburg Milling is located just off the main line. Petitioner states that the spur currently is out of service between the two shippers due to track conditions. It appears, then, that Lowe's cannot currently be served. Petitioner adds that Kova's traffic moves through Greensburg Milling's facilities. CIND provides traffic and revenue data for 1996, the last full year of operations prior to the embargo, and averages for the 3-year period immediately preceding the embargo. Petitioner shows that, in 1996, it handled 648 carloads for the five shippers, from which it derived revenue of $178,017. Petitioner shows the 3-year average to be 770 carloads and $207,784. It points out that volumes have been decreasing. Overhead traffic on the line may be divided into three categories: (1) traffic that moves from or to points on CIND's southern segment and that is interchanged with CERA at Frankfort; (2) traffic that moves from or to CIND's southern segment and that is interchanged with TPW at Frankfort; and (3) traffic interchanged with Conrail. Petitioner states that all of the Conrail traffic that formerly moved over the Shelbyville Line to interchange at Shelbyville or Indianapolis now is interchanged at Cincinnati. Accordingly, neither the revenue nor the expenses from the Conrail traffic are contained in petitioner's computations. Petitioner indicates that the 3-year average of CERA and TPW overhead traffic on the line was 358 carloads and 382 carloads, respectively, contributing revenue of $206,239 and $167,697. For 1996, CERA traffic accounted for 386 carloads and $193,431 in revenue, and TPW traffic represented 420 carloads and $186,848 in revenue. Finally, CIND indicates that it receives $20,000 a year in income from property leases. Combining this income with revenues from local and overhead traffic, then, shows 3-year average revenue of $613,504 a year. CIND estimates that its annual direct operating costs are $560,880, and that its annual costs for property taxes and insurance are $45,639. While the line would be viewed as marginally profitable if one were to consider only these costs, petitioner presents evidence that the costs of necessary rehabilitation and maintenance are very substantial. Based on an engineering inspection and analysis conducted by Richard H. McDonald, CIND indicates that the embargoed segment contains four problem areas that make it unsafe for train operations. The cost to repair the areas to a minimum level of safety according to CIND totals $262,000. An additional $16,000 would be required to repair four areas on the line where erosion has caused damage. Even after the expenditure of $278,000, petitioner argues, neither the embargoed segment nor several other portions of the line would meet FRA Class 1 track standards. CIND estimates that, to bring the line up to such standards, an additional one-time cost of $190,000 for tie replacement and surfacing, and $307,000 for bridge repairs, would be required. Further, CIND argues that, in order for it to be able to efficiently operate over the Shelbyville Line, the track should be repaired to FRA Class 2 standards at an additional cost of $1,395,250. CIND concludes that, to return the line to FRA Class 1 status, the railroad's first year cost of rehabilitation and maintenance would be $602,479, second year cost would be $538,000, and third year cost would be $480,000. In sum, CIND projects first year annual avoidable losses at $595,494, second year at $531,015, and third year at $473,015. CIND asserts that, although the avoidable expenses of operating the line alone support abandonment, it has had Mr. McDonald prepare an estimate of the line's net liquidation value (NLV). Petitioner indicates that the total value of materials in the line is $4,704,000 and removal costs would be $970,000, resulting in an NLV of $3,734,000. Mr. McDonald made no evaluation of the value of the real property underlying the line. However, referring to a 1982 Conrail abandonment proceeding before the Interstate Commerce Commission, petitioner suggests that the value is at least $471,646. Petitioner argues that Board regulation of the abandonment is unnecessary, as the traffic on the line cannot support an economically feasible operation. It asserts that the transaction is limited in scope, as the subject route is less than 58 miles in length, and that abandonment would affect only five shippers who have alternative transportation available. Also, CIND states, no shipper has indicated that any significant increase in traffic could reasonably be expected in the future. Petitioner concludes that there will be no abuse of market power, as the shippers are not dependent on CIND, and the railroad had set rates artificially low to attract business. The protestants include the five shippers named by petitioner and two additional shippers - - Knauf, which operates a fiberglass manufacturing plant immediately north of milepost 81 on the line over which CIND has trackage rights, and Consolidated, which operates a marine terminal at Cincinnati. Protestants also include three local government entities concerned that a loss of rail service will impede development of the area served by the Shelbyville Line. In support of their presentation, protestants submit statements by the general managers of Lowe s, Greensburg Milling, and Premier, the presidents of Kolkmeier and Kova, engineer Jack Braun, transportation consultants Gerald W. Fauth III and James E. Libke, and former CIND General Manager Henry E. Weller. Protestants argue that CIND has grossly understated the revenue attributable to the Shelbyville Line. First, protestants claim that Anchor Glass is a shipper on the line and that, in CIND's operations, the railroad treats Anchor Glass as a main line customer. Protestants indicate that, whereas CIND might claim that it serves Anchor Glass from track that departs from the main line south of milepost 23, the facts are that the CIND line at milepost 23 is a double track, the tracks occupy a common portion of the right-of-way proposed for abandonment, and the segment serving Anchor Glass does not leave the right-of-way until it reaches milepost 23.4. Protestants add that, as CIND's petition recognizes, Conrail, in its abandonment proceedings, described the location of Anchor Glass's predecessor as milepost 23.4. Protestants next contend that CIND improperly has excluded all overhead revenue related to Conrail traffic on the ground that such traffic has been rerouted. Protestants aver that CIND has, in fact, lost and will not retain much of the revenue associated with the Conrail overhead traffic that has been rerouted. Protestants assert that, under Board regulations and precedent, a carrier is required to attribute revenues from overhead traffic to a line to be abandoned to the extent that such traffic will not be retained. Next, the five shippers on the line present evidence that they are willing to make firm and, if necessary, contractual commitments to minimum volumes of increased traffic if they receive reasonable service. The shippers assertedly are positioned to increase their traffic from its present average of 770 carloads to 2,200 carloads annually. Finally, protestants claim that CIND improperly has omitted demurrage revenues from its calculations. Protestants assail CIND's calculations of operating expenses. They assert that significant elements are unsubstantiated by workpapers. These elements include hourly wages for train crews, an overhead additive claimed for train crew wages, car hire expenses claimed for system cars or leased cars, and the claimed cost of leasing a locomotive on a year-round basis. Protestants argue that petitioner's expenses are based on a constructive set of operating conditions that is briefly explained and presented without any supporting witness. The assumptions assertedly present hypothetical operations in their worst light, attributing unnecessarily long and unexplained crew hours to the service contemplated. Protestants vigorously contest the amounts CIND claims are necessary to restore the line to a safe operating condition. Protestants question whether Mr. McDonald, in fact, personally inspected the line, given the facts that he claimed to accomplish the sizable task in only 2 days and has presented no workpapers supporting his inspection and analysis. Even if considered on the merits, protestants contend, Mr. McDonald's conclusions regarding track and bridge rehabilitation are unconvincing. Protestants claim that the line already is largely in FRA Class 2 track condition, with the balance in FRA Class 1 condition. Rehabilitation of the line, where necessary, assertedly can be accomplished for $249,000. Protestants argue that, among other errors, Mr. McDonald has greatly overstated the number of cross tie installations necessary in order for operations over the line to resume. To the extent the line is not now in Class 1 condition, protestants argue, its can attain that status with 700 serviceable ties per mile, not 3,200 as assumed by Mr. McDonald. Protestants also note that some damage was done to the line when fiber optic cable was installed. Claiming that CIND received $547,000 in revenue related to the installation, protestants argue that petitioner should credit the line with as much of that revenue as is necessary to restore the line to the same condition it was in before the installation occurred. Also with regard to claimed expenses, protestants argue that property taxes should be excluded because CIND has not indicated that it intends to sell or dispose of its property following abandonment. Protestants add that insurance costs should also be excluded because CIND has not stated that it intends to scrap the line. Protestants suggest that there are other problems regarding the petition. First, the spur on which Lowe s, Greensburg Milling, and Kova are situated, known as the Westport Industrial Track is, in protestants view, an extension of petitioner's line of railroad . Hence, protestants argue, the segment was improperly excluded from the abandonment request. Protestants argue that the Westport Industrial Track consistently has been treated as a line of railroad, as opposed to a spur exempt from regulation. Protestants assert that CIND specifically included the track in its 1991 line purchase from Conrail, and that CIND daily operates the track as an extension of its main line. Protestants also aver that, if CIND abandons the Shelbyville Line, it will be unable to exercise its trackage rights over the Conrail line between Shelbyville and Frankfort. Thus, according to protestants, there would be an unauthorized de facto abandonment or discontinuance of trackage rights. Protestants argue, then, that CIND must seek authority or an exemption relating to the abandonment or discontinuance of its trackage rights. Finally, protestants argue that the proposed exemption would have a severe, adverse impact on the shipping public. Closing of the line assertedly has caused, and will continue to cause, a diversion of grain traffic from the protesting shippers to competing grain elevators, to the detriment of grain producers. Truck transportation is not considered a viable, permanent substitute for rail service, and shippers do not have access to nearby transloading facilities contrary to CIND's claims. Further, protestants argue, the absence of rail service at Greensburg and St. Paul would harm not only the individual opposing shippers, but also the communities in which they are located and the farmers living and working in those communities. The extensive opposition pleadings raise serious questions about the petition filed by CIND. Taking those questions into account, we cannot make the findings necessary to support the request for relief here. In the circumstances, we will deny the petition for exemption without prejudice to CIND's filing a full abandonment application. Protestants also have raised the issues of the status of the Westport Industrial Track and of CIND's intentions regarding the Conrail line over which it holds trackage rights. Should CIND choose to file an application for abandonment, it should address these matters as well. In summary, on review of the record before us, we conclude that CIND has failed to meet its burden of establishing that continued regulation of the subject abandonment proposal is not necessary to carry out the rail transportation policy, and either that the transaction is limited in scope or that regulation is not necessary to protect shippers from the abuse of market power. The petition for exemption procedure for abandonment is primarily intended to be used to expedite decisions and minimize regulatory burdens in uncontested or noncontroversial proceedings. It should not be used in proceedings like the one before us where detailed analysis of revenues and costs is necessary. CIND should have known that its abandonment proposal would be strenuously opposed, and it should have filed a formal application. If CIND intends to pursue abandonment of its Shelbyville Line, it should file such an application and address the issues raised herein. Our denial of CIND's petition to abandon service over the Shelbyville Line via the exemption process moots labor protection, offer of financial assistance, and environmental issues, including the requests for public use and interim trails use. As such, we will not discuss those requests further. It is ordered: 1. The reply filed by CIND on April 30, 1998, is rejected. 2. The petition for exemption is denied. Decided: May 4, 1998 Service Date - Late Release May 4, 1998 ----------------------------------------------------------------------- SURFACE TRANSPORTATION BOARD DECISION 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 By decision served on April 22, 1998, the Board found that the public convenience and necessity permit applicants Boston and Maine Corporation (B&M) and Springfield Terminal Railway Company (ST) to abandon and discontinue service, respectively, over 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 9.50 miles, in Hartford and New Haven Counties, CT (the line). The decision authorizing abandonment and discontinuance was scheduled to become effective on May 22, 1998, unless an offer of financial assistance (OFA) was filed on or before May 1, 1998. On May 1, 1998, Dalton Enterprises, Inc. timely filed an OFA to purchase the entire line for $650,240. By letter dated May 1, 1998, applicants filed a reply to Dalton's OFA, challenging Dalton's estimate of the value of the line and the feasibility of its proposal to contract with the Naugatuck Railroad Company to operate the line. An OFA to acquire a line for continued rail service need not be detailed, but an offeror must show that it is financially responsible and that the offer is reasonable. Dalton has submitted a letter from Webster Bank in New Haven, CT, indicating that it has made available to Dalton ample credit required for Dalton to purchase the line. Dalton also submits a copy of its 1996 Federal income tax return. The financial information submitted shows that Dalton is a financially responsible entity. Dalton's offer is substantially less than the Board's finding that the net liquidation value (NLV) of the line is $1,530,240. Dalton explains the disparity by asserting that the real estate and track materials may be worth considerably less than the amount determined by the Board if a segment-by-segment appraisal of the right-of-way is considered and if the costs of restoring at- grade crossings and removing bridges are factored in. Dalton also states that certain sections of the line may be subject to reversionary rights in others and that the lack of marketable title to some portions of the line could have a substantial impact on NLV. Because Dalton, a financially responsible entity, has offered financial assistance, the effective date of the decision authorizing abandonment and discontinuance of the line will be postponed. It is ordered: 1. The effective date of the decision authorizing abandonment and discontinuance of the line is postponed in order to permit the OFA process to proceed. 2. If B&M and Dalton cannot agree on the purchase price of the line, either party may request the Board to establish the terms and conditions of the purchase on or before June 1, 1998. If no agreement is reached and no request is submitted by that date, the Board will serve a decision vacating this decision and allowing the abandonment and discontinuance authorization to become effective. Decided: May 5, 1998 Service Date - Late Release May 5, 1998 ----------------------------------------------------------------------- DEPARTMENT OF TRANSPORTATION Surface Transportation Board [STB Docket No. AB-290 (Sub-No. 198X)] Norfolk and Western Railway Company--Abandonment Exemption--in Lynchburg, VA Norfolk and Western Railway Company (NW) has filed a notice to abandon a 0.74-mile line of its railroad between milepost L-0.20 and milepost L-0.94 in Lynchburg, VA. The line traverses United States Postal Service Zip Code 24501. Provided no formal expression of intent to file an offer of financial assistance (OFA) has been received, this exemption will be effective on June 4, 1998, unless stayed pending reconsideration. NW 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 NW's filing of a notice of consummation by May 5, 1999, and there are no legal or regulatory barriers to consummation, the authority to abandon will automatically expire. Decided: April 23, 1998. Service Date - May 5, 1998 ----------------------------------------------------------------------- DEPARTMENT OF TRANSPORTATION Surface Transportation Board [STB Docket No. AB-402 (Sub-No. 5X)] Fox Valley & Western Ltd.--Abandonment Exemption--in Kewaunee County, WI On April 15, 1998, Fox Valley & Western Ltd. (FVW), filed with the Surface Transportation Board a petition to abandon a line of railroad, known as the Luxemburg- Kewaunee Line, extending from milepost 18.9 near Luxemburg to milepost 35.6 at the end of the line near Kewaunee, a distance of 16.7 miles, in Kewaunee County, WI. The line traverses U.S. Postal Service ZIP Codes 54205, 54216, and 54217, and includes the stations of Casco Junction at milepost 23.3 and Kewaunee at milepost 34.0. FVW is a wholly owned subsidiary of Wisconsin Central Transportation Corporation. By issuance of this notice, the Board is instituting an exemption proceeding. A final decision will be issued by August 3, 1998. Decided: April 27, 1998. Service Date - May 5, 1998 ----------------------------------------------------------------------- DEPARTMENT OF TRANSPORTATION Surface Transportation Board [STB Docket No. AB-541X] Portland & Western Railroad, Inc.--Abandonment Exemption--In Washington County, OR On April 15, 1998, Portland & Western Railroad, Inc. (P&W) filed with the Surface Transportation Board a petition to abandon three segments of its line of railroad extending: (1) from milepost 20.05 to milepost 21.09, a distance of 1.04 miles; (2) from milepost 21.09 to milepost 21.26, a distance of 0.17 mile; and (3) from milepost 21.50 to milepost 22.0, a distance of 0.5 mile, all located at or near Hillsboro, in Washington County, OR. The lines traverse U.S. Postal Service Zip Code 97124 and include the stations of Merle located near milepost 20.8 and Orenco Junction located near milepost 21.5. Abandonment authority for the segments from milepost 21.09 to milepost 21.26 (0.17 mile) and from milepost 21.50 to milepost 22.09 (0.5 mile) was previously granted to Burlington Northern Railroad Company (ICC served Dec. 5, 1994). Thereafter, P&W filed a notice of exemption to acquire and operate all three segments proposed here to be abandoned (STB served Nov. 24, 1997). In that proceeding, P&W acquired the rail, track materials, and other personal property necessary for rail service and an exclusive rail easement over the underlying property; BNSF retained the real property with the intent to donate the property to the State of Oregon. P&W questions the need to seek abandonment authority for the segments previously abandoned by BNSF because P&W states that it never exercised its authority because of the absence of traffic. By issuance of this notice, the Board is instituting an exemption proceeding. A final decision will be issued by August 3, 1998. Decided: April 27, 1998. Service Date - May 5, 1998 ----------------------------------------------------------------------- DEPARTMENT OF TRANSPORTATION Surface Transportation Board [STB Docket No. AB-6 (Sub-No. 379X)] The Burlington Northern and Santa Fe Railway Company--Abandonment Exemption--in Garfield and Logan Counties, OK The Burlington Northern and Santa Fe Railway Company (BNSF) has filed a notice to abandon 42.80 miles of its line of railroad between milepost 73.60 near Fairmont and milepost 116.40 near Guthrie including the stations of Douglas at milepost 82.4, Marshall at milepost 88.4, Lovell at milepost 95.1, and Crescent at milepost 102.8, in Garfield and Logan Counties, OK. The line traverses United States Postal Service Zip Codes 73736, 73733, 73056, 73028 and 73044. Provided no formal expression of intent to file an offer of financial assistance (OFA) has been received, this exemption will be effective on June 5, 1998, unless stayed pending reconsideration. BNSF 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 BNSF's filing of a notice of consummation by May 6, 1999, and there are no legal or regulatory barriers to consummation, the authority to abandon will automatically expire. Decided: April 29, 1998. Service Date - May 6, 1998 ----------------------------------------------------------------------- SURFACE TRANSPORTATION BOARD ENVIRONMENTAL ASSESSMENT NO. AB-55 (SUB-NO.561X) CSX TRANSPORTATION, INC. ABANDONMENT EXEMPTION IN CLARKE COUNTY, GEORGIA In this proceeding, CSX Transportation, Inc. has filed a petition in connection with the abandonment of its railroad line located between Milepost YYA-37.44 at East Athens and Milepost YYA-39.34 at Athens, a distance of approximately 1.9 miles in Clarke County, Georgia. This rail line has been used to transport overhead shipments of fertilizer components and minimal local shipments of grain. In recent years, only the Clarke Milling Company, Inc. has shipped or received freight by rail over the line proposed for abandonment. In 1994 and 1995, Clarke Milling received 38 and 32 carloads of whole grain, respectively, via rail. However, since April 10,1996, there have been no rail shipments either originating or terminating on the line proposed for abandonment. The right of way varies in width from 100 to 200 feet paralleling Oak Street. The line winds through the hilly suburban mixed use area between Athens and East Athens. The Georgia State Historic Preservation Officer (SHPO) has identified the entire 2.34 mile segment of branch line to be abandoned (consisting of the 1.9 mile segment specifically addressed in this application plus the .44 mile of previously abandoned track) as eligible for listing in the National Register of Historic Places. Additionally, the SHPO has indicated that elements of this rail line are located within the boundaries of the National Register-listed Athens Warehouse Historic District. Pending resolution of these issues, we recommend that the following condition be imposed on any decision granting abandonment authority: CSX Transportation shall retain its interest in and take no steps to alter the historic integrity of the right-of-way of the 1.9 mile segment of branch line addressed in this application, until completion of the Section 106 process of the National Historic Preservation Act. CSX Transportation has stated that a portion of the proposed branch line to be abandoned has been impacted by two Georgia Hazardous Site Inventory sites. Specifically, former operations of a nearby manufactured gas plant have impacted soil and ground water on approximately one-tenth of a mile on either side of Milepost YYA-39). Because of the presence of hazardous contamination on the right-of-way, we recommend that the following condition be imposed on any decision granting abandonment authority: CSX Transportation shall not engage in any salvage activities or otherwise dispose of the line until the Surface Transportation Board is notified in writing by CSX Transportation that CSX Transportation has developed, in consultation with the U.S. Environmental Protection Agency: (1) measures approved by EPA to ensure safe salvage operations; (2) any necessary remediation procedures, such as removing or capping portions of the right-of-way, that EPA and CSX Transportation have agreed upon. Based on the information provided from all sources to date, and subject to the recommended conditions, we conclude that, as currently proposed, abandonment of the line will not significantly affect the quality of the human environment. Therefore, the environmental impact statement process is unnecessary. Service Date - May 6, 1998 ----------------------------------------------------------------------- DEPARTMENT OF TRANSPORTATION Surface Transportation Board [STB Docket No. AB-290 (Sub-No. 193X)] Norfolk and Western Railway Company--Abandonment and Discontinuance of Trackage Rights Exemption--in Waynesboro, VA Norfolk and Western Railway Company (NW) has filed a notice to abandon a 0.14-mile line of its railroad between Station 60+00 and Station 67+56 and for discontinuance of trackage rights over a 1.12-mile line of CSX Transportation, Inc. (CSXT), between Station 0+64 and Station 60+00 in Waynesboro, VA. The line traverses United States Postal Service Zip Code 22980. CSXT received abandonment authority for the 1.12-mile segment (ICC served Dec. 16, 1986), subject to the condition that CSXT not consummate the abandonment until NW receives authority or an exemption to discontinue its trackage rights over the CSXT line. Provided no formal expression of intent to file an offer of financial assistance (OFA) has been received, this exemption will be effective on June 6, 1998, unless stayed pending reconsideration. NW shall file a notice of consummation with the Board to signify that it has exercised the authority granted abandoned its 0.14-mile line. Pursuant to the same provisions, CSXT shall file a notice of consummation with the Board to signify that it has exercised the authority granted to it to fully consummate abandonment of its 1.12-mile line now that NW has received an exemption to permit it to discontinue trackage rights operation over CSXT's line. If consummation has not been effected by NW's filing of a notice of consummation of abandonment as to its line and by CSXT's filing of a notice of consummation of abandonment as to its line by May 6, 1999, and there are no legal or regulatory barriers to consummation, the authority to abandon will automatically expire. Decided: April 29, 1998. Service Date - May 6, 1998 ----------------------------------------------------------------------- SURFACE TRANSPORTATION BOARD DECISION STB Finance Docket No. 33580 CITY OF ROCHELLE, ILLINOIS --OPERATION EXEMPTION-- On April 20, 1998, the City of Rochelle, Illinois filed a verified notice of exemption to assume and commence active operation of approximately 2.06 miles of rail trackage in the City of Rochelle, Illinois. The line is owned by the City, and is being operated by the Rochelle Railroad Co. On April 23, 1998, Rochelle Railroad Co. filed a petition to reject the notice or revoke the exemption. By letter dated April 20, 1998, the City of Rochelle, acting by its counsel, requests that the notice of exemption be withdrawn. In view of the withdrawal, the proceeding will be dismissed. It is ordered: 1. The request to withdraw the notice of exemption is granted and the proceeding in STB Finance Docket No. 33580 is dismissed. Decided: April 30, 1998 Service Date - May 6, 1998 ----------------------------------------------------------------------- SURFACE TRANSPORTATION BOARD DECISION Docket No. AB-167 (Sub-No. 1165X) CONSOLIDATED RAIL CORPORATION--ABANDONMENT EXEMPTION--IN ST. JOSEPH COUNTY, IN On October 17, 1996, a decision and notice of interim trail use or abandonment (NITU) was served, authorizing a 180-day period for the City of South Bend, IN (City), to negotiate an interim trail use/rail banking agreement with Consolidated Rail Corporation (Conrail) for a 2.0+/- mile portion of its line of railroad known as the Plymouth Industrial Track between milepost 179.00+ and railroad milepost 181.00+, in St. Joseph, IN. At the request of the City, the negotiation period under the NITU was extended by decisions served April 25, 1997, and February 19, 1998. The latest extension expired on April 10, 1998. By letter filed April 10, 1998, the City seeks an additional extension of the negotiation period until June 30, 1998. The City states that Conrail has requested that it perform an appraisal of the right-of-way and that it has finally been able to free up the services of a certified appraiser. The City also renews its concern on the status of title to the right-of-way, which, the City maintains, makes the appraisal a challenging prospect. By letter dated April 30, 1998, Conrail advised the Board that it supports an extension of the trail use negotiation period until June 30, 1998. It is ordered: 1. The negotiating period under the NITU is extended to June 30, 1998. Decided: May 5, 1998 Service Date - May 7, 1998 ----------------------------------------------------------------------- SURFACE TRANSPORTATION BOARD DECISION STB Docket No. AB-391 (Sub-No. 4X) RED RIVER VALLEY & WESTERN RAILROAD COMPANY-- ABANDONMENT EXEMPTION--IN BENSON COUNTY, ND Red Valley & Western Railroad Company (RRVW) filed a notice to abandon an approximately 10.55-mile line of railroad from milepost 79.08, approximately 0.6 miles north of Oberon, to milepost 89.63, in Minnewaukan, in Benson County, ND. Notice of the exemption was served and published in the Federal Register on April 9, 1998. The exemption is scheduled to become effective on May 9, 1998. The Board's Section of Environmental Analysis (SEA) served an environmental assessment (EA) in this proceeding on April 14, 1998. In the EA, SEA states that the National Geodetic Survey (NGS) has identified five geodetic markers that may be affected by the abandonment. NGS requests that it be notified 90 days in advance of any activities that may disturb or destroy the five geodetic markers. Therefore, SEA recommends that a condition be imposed requiring RRVW to consult with the NGS and provide NGS with 90 days notice prior to disturbing or destroying any geodetic markers. The recommended condition will be imposed. 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 RRVW consult with the NGS and provide NGS with 90 days notice prior to disturbing or destroying any geodetic markers. Decided: May 4, 1998 Service Date - May 7, 1998 ----------------------------------------------------------------------- SURFACE TRANSPORTATION BOARD DECISION STB Docket No. AB-398 (Sub-No. 5X) SAN JOAQUIN VALLEY RAILROAD COMPANY--ABANDONMENT EXEMPTION--IN TULARE AND KERN COUNTIES, CA 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 will be made. 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: April 29, 1998 Service Date - May 7, 1998 ----------------------------------------------------------------------- SURFACE TRANSPORTATION BOARD DECISION STB Finance Docket No. 33407 DAKOTA, MINNESOTA & EASTERN RAILROAD CORPORATION CONSTRUCTION INTO THE POWDER RIVER BASIN ACTION: Notice of Issuance of Procedural Schedule. SUMMARY: The Board has received public comments on the proposed procedural schedule for issuing a decision on the transportation merits of the application and applicant's reply to those comments, and the Board is issuing a final procedural schedule. This schedule provides for issuance of a decision within 180 days of the effective date of this decision. SUPPLEMENTARY INFORMATION: By decision served March 11, 1998, as corrected, the Board published notice of a construction and operation application filed by the Dakota, Minnesota & Eastern Railroad Corporation (DM&E) and requested comments on a procedural schedule based on one proposed by DM&E for consideration of the transportation issues regarding the application. DM&E seeks authority to construct and operate 280.09 miles of new railroad line, which would extend DM&E's existing rail lines into the Powder River Basin coal fields in northeastern Wyoming, and DM&E also plans several related projects. That decision also required DM&E to cause to be published notices: (1) advising that comments would not be due until the Board establishes a procedural schedule; and (2) after a schedule has been adopted by the Board, setting forth the schedule, including the due date for comments on the merits of the proposed transaction. We received over two hundred comments on the proposed procedural schedule. Comments were filed by landowners, environmental groups, shipper organizations, shippers and receivers (including electric utilities), railroads, government entities, and rail labor unions. We have reviewed all of these comments but, in light of their number, will not mention each comment individually here. For the most part, the parties opposing the proposed schedule state that the original 35- day comment period is insufficient. One group of similar letters (over 50) asks that we allow comments throughout the EIS process. The other time period mentioned most frequently is an increase in the initial public comment period to 180 days. There are also a few suggestions for comment periods of up to 400 days. The rationale for extending the time period for submitting comments is, generally, that the proposal is extensive and that more time is needed to study it and to seek help in asserting the parties positions in opposition. These parties argue that copies of the application are not readily available to many landowners, and that the application set out on the Internet is incomplete. These parties also claim that DM&E has had years to prepare its arguments and that they deserve time to counter these arguments and fully understand the public convenience and necessity claims of DM&E. There are also numerous requests for local hearings and assertions that there is no public need for another rail line to serve the Powder River Basin. There is one specific proposal for an alternative procedural schedule. It is offered by the 777 Ranch. This proposal would significantly extend the due dates for the various pleadings and ultimately postpone the issuance of a decision on transportation issues by slightly more than 9 months, for a total of approximately 15 months until the decision on the transportation issues is made. Numerous parties support the 180 day schedule. These parties emphasize that this schedule is reasonable and provides adequate time for submitting evidence and for informed decision making by the Board. In support of the proposed schedule, DM&E argues that many of the opposing comments appear to be from parties implacably against the project who see delay as a desirable end in itself. DM&E also claims that many of the opposing comments are directed to environmental concerns, while others address the merits of the proposal rather than the amount of time needed to provide adequate opportunity for public participation and for development of a sufficient record on the transportation merits of the application. DM&E adds that it has attempted to ensure the broad availability of the application and that it went well beyond Board regulations in this regard. Turning to the specific requests for lengthening the proposed schedule, DM&E notes that the commenters apparently did not take into account that, after the initial 35-day comment period, there would be a further 80-day period in which to submit transportation evidence and argument in opposition. In addition, DM&E points out that, even before a specific schedule is adopted, interested parties will have already had nearly 2 months since the application was filed to begin preparation of their transportation comments. We have reviewed all the comments received on the proposed procedural schedule and are aware of the concerns parties have raised regarding the amount of time necessary to prepare their cases as well as the desire of DM&E to have an expedited schedule. Balancing these competing concerns, and with fairness to all parties in mind, we have decided to adopt the proposed 180-day procedural schedule for consideration of transportation issues. This schedule will ensure that all parties are accorded due process. As we explained in our previous decision, any approval granted would be conditioned upon consideration of the environmental impacts of the proposed construction. Thus, we will issue a subsequent decision after completion of the EIS process, and only at that point would we allow construction to begin, if appropriate, based on a consideration of the potential environmental impacts of the proposed transaction. We note that many of the pleadings we received in response to our request for comments on the procedural schedule for consideration of transportation issues instead raise concerns with environmental issues. As noted, we will separately address environmental issues in a subsequent decision after completion of the EIS process. Other comments are directed more to the transportation merits of the application than the procedural schedule. As mentioned, our previous decision required DM&E to cause to be published new notices setting forth the schedule we are adopting here and certifying to us that it has done so. We are reiterating that requirement here. Decided: April 30, 1998. Service Date - May 7, 1998 PROCEDURAL SCHEDULE In the following schedule, the term "P" designates the date that the Board issues this procedural schedule and "P + n" means "n" days following that date. P Procedural schedule established by the Board. P + 7 Due date for publication by DM&E of newspaper notice announcing the procedural schedule. P + 20 Due date for notices of intent to participate as a party of record P + 35 Due date for written comments on transportation aspects of the Application. P + 40 Due date for DM&E's replies to written comments on transportation aspects of the Application. P + 70 Board decision ordering hearing under modified procedures. ----------------------------------------------------------------------- SURFACE TRANSPORTATION BOARD ENVIRONMENTAL ASSESSMENT STB Docket NO. AB-290 (SUB-NO. 198X) Norfolk and Western Railway Company--Abandonment Exemption--in Lynchburg, VA In the above entitled proceeding, the Norfolk and Western Railway Company (NW), has filed a notice in connection with the abandonment of a 0.74-mile line of its railroad between milepost L-0.20 and milepost L-094 in Lynchburg, VA. The right-of-way passes through a sparsely populated agricultural area of Southern Virginia. In its application, NW states that there has been no traffic on the line during the past two years. The National Geodetic Survey (NGS), U.S. Department of Commerce, has informed us that 7 geodetic station markers may be affected by the proposed abandonment. NGS requests that it receive not less than 90 days notification in advance of any salvage activities in order to plan for their relocation. NGS also sent a copy of the list and location of the markers to NW. We recommend NGS's request be imposed as a condition to any abandonment authority. The Commonwealth of Virginia, Department of Game and Inland Fisheries, requests that NW use appropriate erosion and sediment control measures, as set forth in the Virginia Erosion and Sediment Control Handbook, 1992, Virginia Department of Conservation and Recreation. These measure should be maintained throughout the project period due to the close proximity of an intermittent stream. Prior to engaging in any salvage activities, we recommend that NW consult with the U.S. Army Corps of Engineers, Norfolk District, to determine if permits are necessary. We recommend the following environmental conditions be placed on any decision granting abandonment authority: (1) The National Geodetic Survey (NGS) has identified 7 geodetic markers that may be affected by the proposed abandonment. Therefore, NW shall notify NGS at least 90 days prior to any salvage activities that may disturb or destroy these markers so that plans may be made for their relocation. (2) The Commonwealth of Virginia, Department of Game and Inland Fisheries requests that NW use appropriate erosion and sediment control measures, as set forth in the Virginia Erosion and Sediment Control Handbook, 1992. (3) Prior to engaging in any salvage activities, we recommend that NW consult with the U.S. Army Corps of Engineers, Norfolk District, to determine if permits are necessary. Based on the information provided from all sources to date, we conclude that, as currently proposed, abandonment of the line will not significantly affect the quality of the human environment. Therefore, the environmental impact statement process is unnecessary. Service Date - May 8, 1998 ----------------------------------------------------------------------- SURFACE TRANSPORTATION BOARD ENVIRONMENTAL ASSESSMENT DOCKET NO. AB-290 (Sub. No. 200X) Norfolk and Western Railway Company - Abandonment - Between Duty and Clinchfield Coal, Dickenson and Buchanan Counties, Virginia In the above entitled proceeding, Norfolk and Western Railway Company has filed a notice in connection with the abandonment of its line of railroad between Milepost CL-13.56 at Duty and Milepost CL-16.90 at Clinchfield Coal, a distance of 3.3 miles in Dickenson and Buchanan Counties, Virginia. According to NW, the land use along the right-of-way is 90 percent forest and 10 percent residential. No traffic has moved over the line for two years and none is anticipated. Generally, all agencies responded that there would be minimal environmental impacts associated with abandonment and salvage. However, the Virginia Department of Environmental Quality expressed concern about water quality and air quality during salvage operations. Specifically, if NW performs in-stream salvage during certain conditions, a Virginia Water Protection Permit will be required. NW should employ strict soil and erosion control methods during salvage operations in and around Indian Creek. All wetlands should be avoided. During salvage, NW is required to control fugitive air emissions and any land clearing debris must be disposed of in an approved manner. NW must comply with Virginia open burning and fugitive air emission regulations. To ensure compliance with the Virginia regulations protecting water quality and air quality during salvage operations, we will recommend that a condition be imposed on any decision granting abandonment authority requiring NW to consult with the Virginia Department of Environmental Quality prior to beginning salvage operations. Based on the information provided from all sources to date, we conclude that, subject to the recommended condition, and as currently proposed, abandonment of the line will not significantly affect the quality of the human environment. Therefore, the environmental impact statement process is unnecessary. Service Date - May 8, 1998 ----------------------------------------------------------------------- SURFACE TRANSPORTATION BOARD ENVIRONMENTAL ASSESSMENT NO. AB-492 (SUB-NO. 1X) FILLMORE WESTERN RAILWAY COMPANY ABANDONMENT AND DISCONTINUANCE IN FILLMORE, JEFFERSON, SALINE AND THAYER COUNTIES, NEBRASKA In this proceeding, Fillmore Western Railway Company (FWRY) has filed a petition in connection with the abandonment of its railroad line located generally (a) between Geneva and Bruning, Nebraska (Bruning Line); (b) between East Strang Junction and Tobias, Nebraska, and on to the end of the line at Daykin, Nebraska (Daykin Line); (c)between West Strang Junction and Shickley, Nebraska, for a total distance of 42.20 miles in Fillmore, Jefferson, Saline and Thayer Counties, Nebraska. In its application, FWRY states that the grain shipments on the line have been declining and that the line in now no longer economically viable. FWRY states that there is alternative transportation service available in the area, including several Burlington Northern/Santa Fe Railway Company and Union Pacific Railway Company lines within a 17-mile radius. The National Geodetic Survey (NGS) has informed us that 11 geodetic station markers may be affected by the proposed abandonment. NGS requests that it receive not less than 90 days notification in advance of any salvage activities that may affect the markers in order to plan for their relocation. NGS also sent a copy of the list and location of the markers to FWRY. We will recommend NGS's request as a condition to any abandonment authority. Based on the information provided from all sources to date, and subject to the recommended conditions, we conclude that, as currently proposed, abandonment of the line will not significantly affect the quality of the human environment. Therefore, the environmental impact statement process is unnecessary. Service Date - May 8, 1998 ----------------------------------------------------------------------- SURFACE TRANSPORTATION BOARD STB Finance Docket No. 33388 Decision No. 78 CSX CORPORATION AND CSX TRANSPORTATION, INC., NORFOLK SOUTHERN CORPORATION AND NORFOLK SOUTHERN RAILWAY COMPANY --CONTROL AND OPERATING LEASES/AGREEMENTS-- CONRAIL INC. AND CONSOLIDATED RAIL CORPORATION On April 23, 1998, APL Limited (APL) filed an appeal requesting that we reverse a ruling issued by Administrative Law Judge Jacob Leventhal on April 17, 1998. In his ruling, Judge Leventhal granted, in part, the petition by CSX to declassify certain portions of the record with respect to a lease agreement between Conrail and APL. CSX's petition sought to change the designation of the material from Highly Confidential to Public. In granting the relief sought by CSX, Judge Leventhal found that, contrary to APL's assertions, the declassified portions of the lease agreement do not contain commercially sensitive material and that CSX's need to use the information in its oral argument outweighs any detriment to APL. CSX replied in opposition to APL's appeal. In 1988, APL and Conrail entered into a 16-year rail transportation contract providing for the movement of intermodal traffic between various points in the Eastern United States, including rail movements between Chicago, IL, and Conrail's South Kearny Yard in Northern New Jersey. In connection with the transportation contract, Conrail also agreed to lease a 20-acre intermodal facility in South Kearny to APL for a term of 24 years at an annual rental of One Dollar ($1.00), payment waived. Under the terms of applicants agreement to acquire Conrail, Conrail's South Kearny Yard is allocated to CSX. APL's Chicago-South Kearny movements are allocated to both CSX and NS, with revenues from the movements pooled between them. In this proceeding, APL takes the position that the Transaction Agreement, insofar as it provides for the succession of CSX and/or NS to the rail transportation contracts of Conrail, where both the shipper and the succeeding carrier will remain bound by the terms of the contract, should not be approved by us, either generally or as applied to APL. According to APL, it should not be bound by the terms of its existing transportation contract with Conrail, but instead should have the opportunity to negotiate new rail service terms with both CSX and NS. In this proceeding, we have delegated broad authority over disputes arising out of the discovery process to Judge Leventhal. Appeals from his decisions will be granted only in exceptional circumstances to correct a clear error of judgment or to prevent manifest injustice. APL's appeal will be denied. Judge Leventhal exercised his discretion by considering all factors, balancing the prejudice to CSX as against the prejudice to APL, and ultimately granting CSX's declassification request. The exercise of such discretion by Judge Leventhal is entirely within the scope of his authority in this proceeding. Because APL has not demonstrated that Judge Leventhal's ruling constitutes a clear error of judgment or manifest injustice, the appeal will be denied. It is ordered: 1. The appeal in APL-21 from Judge Leventhal's April 17, 1998 decision is denied. Decided: May 7, 1998 Service Date - May 8, 1998 ----------------------------------------------------------------------- SURFACE TRANSPORTATION BOARD STB Finance Docket No. 33388 Decision No. 79 CSX CORPORATION AND CSX TRANSPORTATION, INC., NORFOLK SOUTHERN CORPORATION AND NORFOLK SOUTHERN RAILWAY COMPANY --CONTROL AND OPERATING LEASES/AGREEMENTS-- CONRAIL INC. AND CONSOLIDATED RAIL CORPORATION This decision addresses the petition by Cyprus Amax Coal Sales Corporation, filed April 28, 1998, for leave to intervene and file comments. Applicants replied in opposition to Cyprus Amax's petition. Cyprus Amax states that it operates a coal mine, and plans the construction of another facility, in the area served by the former Monongahela Railway Company, which was acquired by Conrail in 1991. In its petition, Cyprus Amax states that it has not previously participated in this proceeding in view of applicants representations that, although NS will have operational control of Conrail's Monongahela coal lines, CSX will have equal access to all current and future facilities in the area. Cyprus Amax contends that applicants inability to negotiate an implementing operating plan for the area forces it to seek intervention at this time and the imposition of operating conditions to protect its interests. Although it is aware of our recent decision denying a similar intervention request by CONSOL Inc., Cyprus Amax avers that, unlike CONSOL, its interests have not been addressed by other parties in this proceeding. Petitioner claims that it should not be penalized for not burdening the Board with filings that appeared unnecessary, given the representations by applicants. Applicants argue that there is no difference between Cyprus Amax's petition to intervene and CONSOL's petition, and it should likewise be denied. According to applicants, Cyprus Amax has made no showing that it was prevented in any way from participating in the proceeding or following the established procedures. Applicants maintain that permitting Cyprus Amax to intervene at this time would seriously compromise the meaning of procedural deadlines and prejudice applicants in their ability to present their case. The petition to intervene will be denied. Cyprus Amax claims that, unlike the situation of CONSOL in Decision No. 77, no affiliate has addressed its interests in this proceeding. However, Cyprus Amax's concerns have been outlined in a verified statement of a Cyprus Amax official appended to the comments and request for conditions of Bessemer & Lake Erie Railroad Company. Those concerns address the same Monongahela coal movements at issue in the instant petition to intervene. Cyprus Amax has failed to show that its position is materially different from that of CONSOL in Decision No. 77. Although we are denying Cyprus Amax's request to intervene, we reiterate that we will assess the proposed acquisition of Conrail in the light of representations made in the application, including applicants stated intention to afford equal access to all facilities in the Monongahela area. It is ordered: 1. The petition to intervene in CYPR-1 is denied. Decided: May 7, 1998 Service Date - May 8, 1998 ----------------------------------------------------------------------- DEPARTMENT OF TRANSPORTATION Surface Transportation Board [STB Finance Docket No. 33583] Wisconsin Central Ltd. and Fox Valley & Western Ltd.--Joint Relocation Project Exemption--In Fond Du Lac, Wisconsin Wisconsin Central Ltd. (WCL) and Fox Valley & Western Ltd. (FVW) have jointly filed a notice of exemption to enter into a project to relocate lines of railroad in Fond Du Lac, WI. Both WCL and FVW are Class II railroads commonly controlled by Wisconsin Central Transportation Company. The transaction was expected to be consummated on or shortly after April 16, 1998, the effective date of the exemption. WCL and FVW own and operate parallel lines of railroad through Fond Du Lac, WI. The joint relocation will reroute operations from, and allow removal of, duplicative rail lines. Under the joint project, WCL and FVW agree to the following transactions: (1) WCL will abandon its line of railroad on FVW Line One between MP-175.85 near Dixie and Morris Street and MP- 178.40 north of Scott Street, a distance of approximately 2.55 miles, and will also abandon its line of railroad on FVW Line Two between MP-145.58 near Guinette and Woodlawn Avenues and MP-146.24 north of Ninth Street where it connects with FVW Line One, a distance of approximately .66 miles, all in Fond Du Lac, WI; (2) FVW will construct a connecting track of approximately 2,430 feet in length between the WCL Line and FVW Line Two in the vicinity of Morris and Dixie Street (This will connect FVW Line Two with the WCL line. FVW Line One is already connected to the WCL line); and (3) WCL will grant FVW trackage rights over the WCL Line between MP-154.87 at Dixie and Farwell Streets and MP-157.24 north of Scott Street, a distance of 2.37 miles. The proposed joint relocation project will simplify rail operations. The notice states that no shippers will be adversely affected by these relocations or lose access to any rail service currently provided by WCL or FVW. It also states that Stock Lumber, Inc., located at MP- 177.78 on FVW Line One, will continue to receive rail service via trackage that FVW is contractually bound to retain after the joint relocation project is completed. Decided: May 4, 1998. Service Date - May 8, 1998 ----------------------------------------------------------------------- SURFACE TRANSPORTATION BOARD DECISION AND CERTIFICATE OF INTERIM TRAIL USE OR ABANDONMENT Docket No. AB-425 LONE STAR RAILROAD, INC.--ABANDONMENT AND DISCONTINUANCE OF TRACKAGE RIGHTS--IN WICHITA, ARCHER, BAYLOR, KNOX, HASKELL AND JONES COUNTIES, TX By decision served on June 9, 1995, the ICC granted Lone Star Railroad, Inc. authority: (1) to abandon a portion of its line of railroad between milepost 142.8 near Lanius, TX, and milepost 8.0 near Howard, TX; and (2) to discontinue trackage rights over the line of Burlington Northern Railroad Company between milepost 8.0 near Howard and milepost 0.0 at Valley Junction, TX, and from Valley Junction east for 331 feet to the switching point in Sunshine Yard at Wichita Falls, TX, a total distance of 142.86 miles in Wichita, Archer, Baylor, Knox, Haskell and Jones Counties, TX. In the same decision, the ICC granted authority to Southern Switching Company to discontinue service that it performed over the 142.86-mile rail line pursuant to an operating agreement with Lone Star. The grant was subject to the standard employee protective conditions and to a public use condition. The public use condition expired on October 7, 1995. On November 3, 1995, a decision and certificate of interim trail use or abandonment was served, which authorized a 120-day period for the American Trails Association, Inc. (ATA), to negotiate an interim trail use/rail banking agreement with Lone Star for the 128.5-mile portion of the right-of-way between milepost 8.0 in Wichita Falls and milepost 136.5 in North Abilene. On October 16, 1997, ATA requested that the Board partially vacate the NITU for the line segment between milepost 111.27 at the Haskell County-Jones County boundary line and milepost 136.5 at the end of the line near the City of Hawley, a distance of 25.23 miles in Jones County, TX. ATA states that it is the owner of the right-of-way, and requests that the partial vacation be made effective November 1, 1997. ATA's request complies with the Board rule applicable to such modifications. On March 23, 1998, the North Texas Rural Rail Transportation District (NTR) filed a request for its substitution as interim trail operator in lieu of ATA, for the approximately 7-mile portion of the right-of-way between milepost 8 near Howard and milepost 15 in Wichita and Archer Counties, TX. NTR has filed a statement of willingness to assume financial responsibility. On March 26, 1998, ATA filed a statement in support of NTR's request and stated that it had reached an agreement for the transfer of the right-of-way segment to NTR. NTR has made the required showing for the substitution of an interim trail user. Accordingly, NTR's request will be granted. In addition, the certificate of interim trail use will be vacated for the segment of the line between milepost 111.27 and milepost 136.5. It is ordered: 1. This proceeding is reopened. 2. The decision and certificate of interim trial use served November 3, 1995, is modified as requested and vacated with the respect to the line segment between milepost 111.27 at the Haskell County-Jones County boundary line and milepost 136.5 at the end of the line near the City of Hawley, in Jones County, TX, and this line segment may be fully abandoned. 3. As to the segment between milepost 8 near Howard and milepost 15 in Wichita and Archer Counties, TX, NTR is authorized to replace ATA as the new trail user for that approximately 7-mile portion of the right-of-way, effective on the service date of this decision. 4. The new trail user is required 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 that may be levied or assessed against the right-of-way. 5. Interim trail use/rail banking is subject to the future restoration of rail service and to the new user's continuing to meet the financial obligation for the right-of-way. 6. If the new trail 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. Decided: May 6, 1998 Service Date - May 11, 1998 ----------------------------------------------------------------------- SURFACE TRANSPORTATION BOARD DECISION STB Docket No. AB-33 (Sub-No. 113) UNION PACIFIC RAILROAD COMPANY--DISCONTINUANCE OF TRACKAGE RIGHTS AND ABANDONMENT--IN NATRONA AND CONVERSE COUNTIES, WY On November 12, 1997, a decision and certificate of interim trail use or abandonment was served in the above proceeding, which authorized a 180-day period for the City of Casper, WY to negotiate an interim trail use/rail banking agreement with Union Pacific Railroad Company for portions (between mileposts 590.0 and 599.6 and between mileposts 603.5 and 607.8) of a 17.8- mile line of railroad extending from milepost 590.0 to the end of the line at milepost 607.8 near Casper (Air Base), in Natrona County, WY. The negotiating period is scheduled to expire on May 9, 1998. On May 6, 1998, the City filed a request for an additional 180-day period in which to continue negotiations with the railroad. The City believes that this extension will insure sufficient time for the parties to conclude their negotiations and reach a mutually acceptable final agreement. In a letter filed May 6, 1998, UP states that it agrees with the request. It is ordered: 1. The request to extend the interim use negotiating period is granted. 2. The CITU negotiating period is extended to November 5, 1998. Decided: May 8, 1998 Service Date - May 12, 1998 ----------------------------------------------------------------------- SURFACE TRANSPORTATION BOARD DECISION STB Docket No. AB-167 (Sub-No. 1182X) CONSOLIDATED RAIL CORPORATION--ABANDONMENT EXEMPTION--IN INDIANA COUNTY, PA 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 will be made. 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: May 4, 1998 Service Date - May 12, 1998 ----------------------------------------------------------------------- DEPARTMENT OF TRANSPORTATION 49 CFR 1146 [STB Ex Parte No. 628] Expedited Relief for Service Inadequacies ACTION: Notice of Proposed Rulemaking. SUMMARY: Pursuant to its decision in Review of Rail Access and Competition Issues, STB Ex Parte No. 575 (STB served Apr. 17, 1998), the Board is instituting a proceeding to solicit comments on proposed rules that would establish expedited procedures for shippers to obtain alternative service from another rail carrier when the incumbent carrier cannot properly serve shippers. The Board requests that persons intending to participate in this proceeding notify the agency of that intent. SUPPLEMENTARY INFORMATION: In STB Ex Parte No. 575, the Board conducted two days of informational hearings, on April 2 and 3, 1998, to examine issues of rail access and competition in today's railroad industry, and the statutory remedies and agency regulations and procedures that relate to those matters. As a result of those hearings, we announced that we would begin a rulemaking proceeding to consider revisions to our rules to provide shippers receiving poor service greater opportunity to obtain service from an additional carrier. While the Board lacks general authority to require an unwilling railroad to permit physical access over its lines to the trains and crews of another railroad, it may direct that result in certain situations: as a condition to the incumbent's merger with another railroad; to serve terminal facilities when it would be in the public interest; or, to serve any facilities for a limited period of time (not more than 270 days) because of the carrier's inability or failure to provide its shippers with adequate service. The Board may also direct an incumbent railroad to afford access indirectly, either by prescribing alternative through routes (requiring the incumbent to interline traffic with another railroad over a designated interchange and thereby create an alternative route and rates for a shipper's traffic) or by requiring reciprocal switching (where, for a fee, the incumbent must switch cars to and from another railroad so that the latter, even though it cannot physically reach a shipper, can constructively offer alternative single-line service). Accordingly, we seek comment on the proposed rules set forth below to provide expedited relief for demonstrated poor service. To address these service issues more effectively, we propose rules under which parties may seek alternative rail service under either the access provisions of sections 11102 and 10705, or the emergency service provisions of section 11123. While section 11123 has typically been used to address regional service emergencies, such as the one recently experienced in the West, we believe it can also be used to afford more localized relief to shippers; that section broadly permits Board intervention to remedy service deficiencies having substantial adverse effects on shippers, or where a rail carrier cannot transport the traffic offered to it in a manner that properly serves the public. Moreover, permitting shippers to proceed either under sections 11102 or 10705, on the one hand, or section 11123, on the other, affords greater flexibility and broadens the potential for regulatory relief. For example, trackage rights access under section 11102(a), while not statutorily limited in duration, is limited to an incumbent railroad's terminal facilities, and therefore is not available for shippers that are not located at or near terminal areas. In contrast, remedies under section 11123(a), although limited to 270 days, are potentially available for shippers located on any part of the incumbent carrier's network; this section also affords the Board more latitude to craft a variety of measures to remedy any particular service situation. Whichever remedies are sought, however, the predicate for relief would be the same: that, over an identified period of time, there has been a substantial, measurable deterioration in the rail service provided by the incumbent carrier. We do not think it necessary or appropriate to propose a list of particular factors or a formulaic weighing of such factors that shippers must use to make that assessment, or to propose a specific test period. Each shipper has its own particular service needs and experiences, and carrier difficulties may vary. Our standard of relief must be flexible enough to permit us to address varying circumstances. Commenters may wish to address this issue. We caution that the proposed rules are not meant to redress minor service disruptions. Access particularly that which would compel physical access by another railroad over an incumbent's lines is a serious remedy with potentially significant operational, safety, and financial consequences for the involved carriers, and we intend that the rules be used to remedy only substantial service problems that cannot readily be resolved by the incumbent railroad. Accordingly, we propose to require shippers to: (1) first discuss and assess with their incumbent carrier whether adequate service can be restored within a reasonable period of time that is consistent with the shipper's needs and, if not, outline in its request for relief why that is the case; and (2) obtain from another railroad the necessary commitment should it be afforded access to meet the shipper's service needs, and describe the carrier's plan to do so safely and without degrading service to its existing customers or unreasonably interfering with the incumbent's overall ability to provide service. The proposed rules include expedited procedures because of the usually urgent nature of serious service problems. Instead of the more time-consuming complaint process, parties may seek relief by petition. We propose that the incumbent carrier be required to reply to such a petition within five business days, and that the shipper, if it wishes to file a rebuttal, be required to do so no more than three business days later. If relief is granted under these rules, once the incumbent carrier can demonstrate that it has restored, or is prepared to restore, adequate service, it may file a petition to terminate that relief. We would discourage an incumbent carrier from filing such a petition too hastily after the Board's order, however, as the objective in a proceeding of this nature is to provide shippers with a needed degree of certainty of adequate rail service. For the same reason, we propose that satisfying the standard for relief under section 11123 ordinarily would establish a presumption that the incumbent's inability to provide adequate service will last beyond the initial 30-day period, and thus will provide the basis for a subsequent order extending relief beyond the initial 30-day period. However, if the incumbent carrier can show that it is prepared to provide adequate service, it may seek to have the relief terminated within the first 30 days. Should the incumbent carrier file a petition to terminate relief, replies are to be filed in five business days, and the carrier may file any rebuttal three business days afterward. The Board will then assess all relevant factors in determining what action would be appropriate. We invite comment on all aspects of this proposal. Decided: May 12, 1998 Service Date - Late Release May 12, 1998 ----------------------------------------------------------------------- SURFACE TRANSPORTATION BOARD ENVIRONMENTAL ASSESSMENT NO. AB- 6 (SUB-NO. 379X) Burlington Northern and Santa Fe Railroad Company -- Abandonment Exemption -- in Garfield and Logan Counties, OK In this proceeding, the Burlington Northern and Santa Fe Railroad Company (BNSF) has filed a notice in connection with the abandonment of its railroad line located between MP 73.60 near Fairmont and MP 116.40 near Guthrie, a distance of 42.80 miles in Garfield and Logan Counties, OK. Although the Oklahoma Department of Wildlife Conservation and the Oklahoma Natural Heritage Inventory identified the potential presence of the Bald Eagle and the Least Tern in the project area, the U.S. Fish and Wildlife Service indicated that there would no effect on any Federally listed threatened or endangered species. The Logan County Conservation District and Floodplain Management Board indicated that if BNSF removes rails and ties during salvage activities, these materials, and the heavy equipment used to remove them, must not be stored within the boundaries of the 100-year floodplain. SEA recommends that the following condition be placed on any decision granting abandonment authority: While conducting salvage activities, BNSF shall not store rails, ties, or salvage equipment in the 100-year floodplain. Based on the information provided from all sources to date and subject to the recommended condition, we conclude that, as currently proposed, abandonment of the line will not significantly affect the quality of the human environment. Therefore, the environmental impact statement process is unnecessary. Service Date - May 13, 1998 ----------------------------------------------------------------------- SURFACE TRANSPORTATION BOARD DECISION STB Docket No. AB-31 (Sub-No. 30) GRAND TRUNK WESTERN RAILROAD INCORPORATED-- ADVERSE DISCONTINUANCE OF TRACKAGE RIGHTS APPLICATION-- A LINE OF NORFOLK AND WESTERN RAILWAY COMPANY IN CINCINNATI, HAMILTON COUNTY, OH By an application filed January 23, 1998, and supplemented on February 5, 1998, Norfolk and Western Railway Company ( a wholly owned subsidiary of Norfolk Southern Railway Company) seeks adverse discontinuance of limited overhead trackage rights by Grand Trunk Western Railroad Incorporated (GTW) over the entire Riverfront Running Track or Riverfront Track extending from NW's milepost 119.3 (at the former Oasis Yard) and milepost 121.5 (at Smith Street), a distance of between 1.6 miles and 2.2 miles, in Cincinnati, Hamilton County, OH. N&W also seeks exemption from the offer of financial assistance (OFA) provisions. Senator Mike DeWine, of Ohio, the County of Hamilton and NW request expedited consideration. NW filed the application when GTW declined to file, or concur in, a notice of exemption for discontinuance of trackage rights over the Riverfront Track. GTW claims to have assigned the trackage rights to the Indiana & Ohio Railway Company (IORY). We requested IORY to participate in this proceeding, but it has not done so. GTW and IORY indicate that by letter dated January 29, 1998, they invoked arbitration of the assignment of trackage rights pursuant to the terms of the GTW trackage rights agreement. An adverse discontinuance is an application to the Board to find that the public convenience and necessity requires or permits the discontinuance of service by a carrier over a line of railroad, when that application is filed by someone other than that carrier. Such filings are also known as third party applications for abandonment or discontinuance. They are termed adverse applications because they are often, though not always, opposed by the carrier holding authority to operate on the line. In a decision served February 12, 1998, NW was granted a waiver of certain regulations and statutory provisions dealing with notice and filing requirements. Notice of the filing of the application was served on February 12, 1998. On March 10, 1998, GTW filed a verified statement indicating that it did not oppose NW's adverse discontinuance application as it affects only GTW s, or its sucessor s, operational rights, but that GTW will seek to preserve the rights of its successor, IORY, to acquire the Riverfront Running Track. GTW says it will do so either by exercising its right of first refusal pursuant to its trackage rights agreement with NW or by an offer of financial assistance in the concurrently filed abandonment proceeding, STB Docket No. AB-290 (Sub-No. 184X), Norfolk and Western Railway Company--Abandonment Exemption--In Cincinnati, Hamilton County, OH. NW replied on March 25, 1998. NW acquired its interest in the Riverfront Running Track on April 1, 1976, as part of the Final System Plan under the Regional Rail Reorganization Act of 1973 (3R Act). The trackage rights agreement involved here was also entered into on April 1, 1976, between NW and Detroit, Toledo, and Ironton Railroad Company (DTI). In June 1980, GTW acquired control of the DTI, and DTI later merged into GTW in December 1983. As a result, GTW acquired its interest in the agreement (the GTW trackage rights agreement) as the successor to the DTI. The GTW trackage rights agreement is restricted to the movement of overhead traffic over the line for interchange with the Cincinnati, New Orleans and Texas Pacific Railway Company (CNOTP). CNOTP is an NW affiliate whose railroad line connects with the Riverfront Running Track near Smith Street's intersection with Front Street. NW and CNOTP are both subsidiaries of Norfolk Southern Railway Company. They were unaffiliated when GTW's predecessor, DTI, acquired its overhead trackage rights on the line from NW. Access to CNOTP's Gest Street Yard and the CNOTP High Line, which connects the Riverfront Running Track with the Gest Street Yard, is via trackage rights obtained by GTW in 1982 over a line owned by CSX Transportation Inc. (CSXT). However, a derailment of a CSXT train and ensuing fire rendered part of the CNOTP High Line unsafe for continued operations. From that time until now, GTW overhead traffic that would have moved over the Riverfront Running Track under the GTW trackage rights agreement for interchange with CNOTP has instead been detoured and rerouted over an alternate route. In 1995, NW completed construction of the Third Main track along CSXT's right-of-way between Winton Place and Hopple Street, which eased congestion of rail traffic north of Cincinnati and made the unused Riverfront Running Track route unnecessary, even as a backup route for overhead traffic. Due to a damaged bridge on the CNOTP High Line, GTW has been unable to use the line since 1986 for interchange of overhead traffic with the CNOTP, the only permissible purpose under the GTW agreement. NW asserts that the public convenience and necessity require discontinuance of the trackage rights. According to NW, there are no shippers located on or adjacent to the Riverfront Running Track, no local traffic has moved over the line for over two years, and any overhead traffic can be rerouted. Furthermore, they indicate that there is no prospect that any shippers will ever again locate on or adjacent to this line because of the City of Cincinnati's public use projects being constructed on the current railroad right-of-way and adjacent property. Indeed, GTW has not used the line for the only permissible use under the GTW Agreement--interchange of overhead traffic with CNOTP--for more than a decade. Due to damage to the CNOTP High Line, any overhead traffic to CNOTP that might exist cannot use the line and has been rerouted. Moreover, NW asserts that there is no reason to reinstitute service on this long-dormant line, on which no shippers are located. NW and the City of Cincinnati entered into an agreement, the Transition Agreement, dated April 11, 1995. The Transition Agreement provides for the City's acquisition of the Riverfront Running Track once all rail carrier interests have been discontinued and extinguished and NW has abandoned the Line. As part of the same agreement, the City facilitated the construction of a Third Main track on an existing rail line through Cincinnati's Millcreek Valley. The construction of the Third Main made available to NW additional operating capacity and thereby making the Riverfront Running Track unnecessary even as a contingency for future increased capacity. Abandonment of the Riverfront Running Track is an essential component of a 20-year public and private effort to redevelop and revitalize the City of Cincinnati's River Front area. Barriers between the City's central business district and the north bank of the Ohio will be removed by reconfiguring the Fort Washington Way expressway (I-71/U.S. 50); building multi- purpose structured parking lots to replace surface parking lots; and expanding and reconnecting the City's downtown area. Further enhancements to downtown Cincinnati will include Hamilton County's plans to build a new Cincinnati Bengals football stadium; the possibility of a new Cincinnati Reds baseball stadium; a multi-modal passenger transportation center; a possible future commuter rail station; and a regional family-oriented cultural/entertainment district. Discontinuance of trackage rights will allow NW to abandon and remove the Riverfront Running Track, resulting in the culmination of two decades of efforts by the City of Cincinnati and Hamilton County to remove rail traffic from the Riverfront Running Track. In adverse discontinuance proceedings the primary question to be resolved is whether there exists sufficient public interest in operation of the subject line to merit continued oversight by the Board. As the party seeking abandonment, NW has the burden of proof to establish that the public convenience and necessity permit the proposed discontinuance. Here the public convenience and necessity supports the requested grant of discontinuance authority. For the past 11 years, no rail service has been provided on the line. Because of the projected public uses of the railroad right-of-way and surrounding property, there is no public interest in continuing and no likelihood of reactivating rail service on the line. GTW does not oppose the discontinuance of the trackage rights. Also, IORY has not filed any opposition to the termination of the trackage rights. While IORY has not participated in this proceeding, in STB Docket No. AB-290 (Sub-No. 184X), IORY states that, while it is not asserting its right to operate over the Riverfront Running Track as a trackage rights holder, it insists that it has a right to purchase the line as a right of first refusal under the GTW trackage rights agreement. It is unnecessary for us to address whether GTW or IORY is the legal successor to the DTI trackage rights. Any ownership disputes arising from the trackage rights agreement can be resolved elsewhere. Because neither GTW nor IORY has opposed the application, we find that the discontinuance of trackage rights is warranted in that rail service to the public will not be harmed. Clearly, the evidence of record demonstrates that it is in the public interest and the interest of interstate commerce to approve NW's adverse application. NW has also framed its request for exemption to extend to OFAs. Exemptions have been granted from time to time, but only when the right-of-way is needed for a valid public purpose and there is no overriding public need for continued rail service. Because this proceeding involves a discontinuance rather than an abandonment, relief under is limited to subsidizing the carrier's losses for a period not to exceed one year. As noted, GTW has not operated over the line in more than 11 years, and IORY has never operated over the line. NW has shown that the right-of-way is needed for a valid public purpose, i.e., multi- purpose improvements for the City of Cincinnati's downtown area. There are no shippers currently located on the line and no possibility that new shippers would locate on the line in the future. Overhead traffic has either been rerouted or can be rerouted. Thus, there is no overriding public need for continued rail service. On the other hand, imposition of OFA procedures or a public use condition would only delay transfer of the line for important public purposes and may cause the City to incur substantial monetary penalties for delay in completing certain projects. To accommodate the requests for expedition, we will grant an exemption from 49 U.S.C. 10904 and make the decision effective 10 days from the date of service. NW has met its burden of proof, and we will grant its application. Because this is a discontinuance proceeding and not an abandonment, trail use/rail banking and public use provisions do not apply. We find: 1. The present and future public convenience and necessity require and permit the discontinuance of trackage rights by either GTW or IORY over the above-described line of railroad, subject to the employee protective conditions in Oregon Short Line R. Co.-- Abandonment--Goshen, 360 I.C.C. 91 (1979). 2. Discontinuance of the trackage rights will not result in an adverse impact on rural and community development. 3. Because such matters as public use and trail use/rail banking conditions are not appropriate here and because we have exempted the adverse discontinuance from the offer of financial assistance provisions of 49 U.S.C. 10904, we will accommodate the requests for expedition by allowing the discontinuance of trackage rights by either GTW or IORY to become effective on May 23, 1998. 4. This action will not significantly affect either the quality of the human environment or the conservation of energy resources. It is ordered: 1. NW's application for the adverse discontinuance of the trackage rights described above is granted, and the OFA provisions of 49 U.S.C. 10904 are exempted. 2. This decision is effective on May 23, 1998. Decided: May 13, 1998 Service Date - Late Release May 13, 1998 ----------------------------------------------------------------------- SURFACE TRANSPORTATION BOARD ENVIRONMENTAL ASSESSMENT NO. AB-33 (SUB-NO.119X) UNION PACIFIC RAILROAD COMPANY -ABANDONMENT EXEMPTION- IN ROCK, GREEN AND DANE COUNTIES, WI (HARVARD SUBDIVISION BETWEEN EVANSVILLE AND MX CROSSING) In this proceeding, the Union Pacific Railroad Company has filed a petition in connection with the abandonment of its railroad line located between milepost 119.0 near Evansville to milepost 134.0 near MX -a crossing of the Wisconsin & Southern Railroad Company ( W&SR ) - a distance of 15.0 miles in Rock, Dane and Green Counties, Wisconsin. One active shipper, Oregon Farm Center, 321 Market Street, Oregon, WI 53575, has used the line for freight shipments of fertilizer. In 1995, the shipper had one carload, in 1996 the shipper has two carloads, and in 1997 the shipper had no carloads. The last shipment of fertilizer to move over the Line was in May 1996. The right-of-way is approximately 15 miles in length and is almost exclusively 100 feet in width with very few exceptions. The right-of-way begins on the southern edge of Madison and passes through the town of Oregon and terminates near Evansville, Wisconsin. The right-of-way is mostly rural and passes through rural agricultural land. The adjacent land is used for pasture and row crops. The topography is flat to gently rolling. The National Geodetic Survey (NGS) has identified 18 geodetic station markers along the rail line and requests 90 days notice to plan relocation of any markers which may be disturbed or destroyed. Therefore, we recommend that the following condition be imposed on any decision granting abandonment authority: The Union Pacific Railroad Co. shall consult with the National Geodetic Survey and provide NGS with 90 days notice prior to disturbing or destroying any geodetic markers. Based on the information provided from all sources to date, and subject to the recommended condition, we conclude that, as currently proposed, abandonment of the line will not significantly affect the quality of the human environment. Therefore, the environmental impact statement process is unnecessary. Service Date - May 13, 1998 ----------------------------------------------------------------------- DEPARTMENT OF TRANSPORTATION Surface Transportation Board [STB Docket No. AB-55 (Sub-No. 562X)] CSX Transportation, Inc.--Abandonment Exemption--in Rocky Mount, Nash County, NC On April 23, 1998, CSX Transportation, Inc. (CSXT), filed with the Surface Transportation Board a petition to abandon a portion of its Florence Service Lane, North End Subdivision, extending from Valuation Station 4+30 at Falls Road to Valuation Station 36+00 at the end of the track near Earl Street, which traverses U.S. Postal Service ZIP Code 27804, a distance of 0.60 miles, in Rocky Mount, Nash County, NC. CSXT indicates that there are no stations on the line. By issuance of this notice, the Board is instituting an exemption proceeding. A final decision will be issued by August 11, 1998. Decided: May 5, 1998. Service Date - May 13, 1998 ----------------------------------------------------------------------- SURFACE TRANSPORTATION BOARD DECISION STB Docket No. AB-290 (Sub-No. 184X) NORFOLK AND WESTERN RAILWAY COMPANY--ABANDONMENT EXEMPTION-- IN CINCINNATI, HAMILTON COUNTY, OH By petition filed January 23, 1998, and supplemented on February 5, 1998, Norfolk and Western Railway Company (NW) seeks exemption under 49 U.S.C. 10502 from the prior approval requirements of 49 U.S.C. 10903 to abandon a portion of a line of railroad known as the Riverfront Running Track, extending from NW's milepost 119.3 (at the former Oasis Yard) to milepost 120.8 east of Plum Street, a distance of approximately 1.5 miles, in Cincinnati, Hamilton County, OH. In addition, NW seeks to be exempted from the offer of financial assistance (OFA) provisions and the public use provisions. The United Transportation Union (UTU) requests imposition of labor protective conditions. Senator Mike DeWine of Ohio, the County of Hamilton and NW request expedited consideration. Comments were filed by two railroad carriers, Indiana and Ohio Railway Company (IORY) and Grand Trunk Western Railroad, Incorporated (GTW), customers/shippers supporting GTW, and the City of Cincinnati (the City). The two carriers do not oppose NW's abandonment of the Riverfront Running Track. However, they believe that there is a public need for a continued railroad service over the line under a new IORY ownership. IORY wishes to purchase the line under the OFA provisions. Accordingly, IORY and GTW oppose NW's sought exemption from the OFA provisions. On April 15, 1998, NW and Hamilton County filed replies to the comments of IORY. On May 5, 1998, IORY filed supplemental comments and a response to the replies of Hamilton County and NW and the comments of the City. On May 6, 1998, NW filed a motion to strike the supplemental comments and response of IORY. In the interest of deciding this case on the most comprehensive record available, we will deny the motion to strike and will accept and consider all filings. We will grant the requested exemptions, subject to labor protective conditions and an environmental condition. NW acquired the Riverfront Running Track on April 1, 1976, as part of the Final System Plan under the Regional Rail Reorganization Act of 1973 (3R Act). According to NW, abandonment of the Riverfront Running Track will allow the City and Hamilton County to proceed with several Riverfront revitalization projects unhindered by the track structure. An agreement entitled Transition Agreement, dated April 11, 1995, entered into by NW and the City provided for the City's acquisition of the right-of-way once all rail carrier interests were discontinued and extinguished, and NW had abandoned the line. As part of the same agreement, the City agreed to facilitate the construction of the Third Main track on an existing rail line through Cincinnati's Millcreek Valley, to make available to NW additional operating capacity and thereby make the Riverfront Running Track unnecessary even as a contingency for future increased capacity. Discontinuances were sought for all other rail carrier interests. NW's General Manager Western Region, M. D. Manion, certified that no local traffic has originated or terminated on the line for at least two years; that overhead traffic has been rerouted over other lines, and that no formal complaint filed by a user of rail service on the line or a state or local government entity acting on behalf of such user regarding cessation of service over the line either is pending before the Surface Transportation Board or any U.S. District Court or has been decided in favor of the complainant within the two-year period. According to NW, overhead traffic that would have moved over the line has been moving via a detour over an alternate route for over 11 years because a CSX Transportation Inc. (CSXT) train derailment severely damaged a bridge on the railroad line of NW's affiliate--The Cincinnati, New Orleans and Texas Pacific Railway Company (CNOTP) High Line that connects NW's Riverfront Running Track with the interchange point at CNOTP's Gest Street Yard. NW claims that the public convenience and necessity requires abandonment because there are no shippers on the line and no prospect of any locating there, there is no traffic moving over the line, the line is not needed for overhead traffic, and the property is desired for public use. Moreover, because of the location of the line and projected public uses of the railroad right-of- way and surrounding property, NW contends that there is no public interest in continuing and no likelihood of reactivating rail service to any shipper on the line. NW states that abandonment of the Riverfront Running Track is an essential component of a 20-year effort of public and private interests to redevelop and revitalize Cincinnati's Riverfront area. Abandonment will allow barriers between the City's central business district and the north bank of the Ohio to be removed by reconfiguring the Fort Washington Way expressway (I-71/U.S. 50); building multi-purpose structured parking lots to replace surface parking lots; and expanding and reconnecting the City's downtown area. Further enhancements to the downtown will include: Hamilton County's plans to build a new Cincinnati Bengals football stadium; the possibility of a new Cincinnati Reds baseball stadium; a multi-modal passenger transportation center; a possible future commuter rail station; and a regional family-oriented cultural/entertainment district. Abandonment and removal of the Riverfront Running Track will finally permit two decades of efforts by the City to remove rail traffic from Cincinnati's Riverfront. An exemption will allow NW to avoid the expenses of owning and maintaining this redundant rail line and to apply its assets more productively elsewhere on its system, while permitting the City of Cincinnati to realize its plans for a large scale renewal of its downtown area, thereby promoting safe and efficient rail transportation, fostering sound economic conditions, and encouraging efficient management. There is no possibility of shipper abuse because the line has not been used for over 11 years. No shippers are located on the line, and any overhead traffic has been or can be rerouted. There is no opposition to NW's abandonment of the line by shippers or other railroads. NW has also framed its request for exemption to extend to 49 U.S.C. 10904, involving OFAs, and to 49 U.S.C. 10905, involving public use conditions. IORY and GTW oppose an exemption from the OFA provisions. NW has stated that it will not negotiate with any party for the transfer of the line for trail use because it has already agreed to transfer the line to the City. IORY argues that the Board may not use its exemption authority to exempt the OFA provisions because this is a contested case. IORY notes that the Board and its predessor, the Interstate Commerce Commission, have only granted exemption from the OFA provisions where such exemptions are not opposed. IORY also argues that, because section 10904 is a mandatory forced sale provision, the Board may not, through the exemption process, decline to authorize the transfer of a rail line approved for abandonment, if the financial terms of section 10904 are met. IORY states that the Board's authority to exempt a transaction is necessarily limited by its authority to authorize or deny the transaction in the first instance. Consequently, IORY argues, that the Board may not through the exemption process take an action, such as denying an OFA, that it is not otherwise statutorily authorized to undertake. Next, IORY and GTW argue that, even if the Board decides it has jurisdiction to exempt from the OFA provisions, the petition for exemption of the OFA provisions should still be denied because there is an overriding public need for a transportation service provided by IORY over the Riverfront Track. Letters from IORY's customers/supporters express a need for IORY's direct service through Cincinnati over the Riverfront Track. IORY, if it is able to purchase the Riverfront Track, would move traffic to the Consolidated Grain and Barge Company. Consolidated Grain and Barge Company operates two rail-barge facilities on the Central of Indiana (CIND -- an affiliate of IORY) line west of Cincinnati and ships such commodities as grain, fertilizer, salt, pig iron and coal. The shippers indicate that IORY's only access to this barge facility is via an NS switch through the NS Gest Street Yard or a CSXT switch through the CSXT's Queensgate yard in Cincinnati. Because of alleged significant delays in getting traffic through the NS and CSXT yards and because of the NS's and CSXT's alleged exorbitant switching charges, the shippers indicate that they cannot competitively route their traffic over IORY through Cincinnati. In addition, they claim that the NS and CSXT rail lines through Cincinnati are highly congested. The customers/supporters argue that the Riverfront Track is an essential transportation link that would enable IORY to bypass the congested Cincinnati NS and CSXT rail yards, and provide shippers direct rail access through Cincinnati to barge facilities on the Ohio River. GTW argues that its on-line shippers require a direct IORY route over the Riverfront trackage with an interchange with transloading facilities on the CIND. It submits that its shippers do not have access to a rail/barge transloading facility on the Ohio River at Cincinnati other than the one served exclusively by CSXT. It explains that the only other present alternative is through the NS's Gest Street Yard to CIND, but it argues that this option is limited by a 1993 Agreement between GTW and NW (with IORY being the successor to GTW). GTW states that the terms of the agreement were limited to moving grain shipments and the movements were limited to Tuesday and Wednesday, with a minimum of eight hours advance notice of arrival, and with a maximum of four round trips per month--not to exceed one round trip per week. GTW adds that NW has refused to extend the agreement for commodities other than grain, and has refused to eliminate the unacceptable operating restrictions on an interchange between IORY and CIND. IORY also argues that its purchase of the Riverfront Track should be allowed because rail service over the Riverfront Track is not incompatible with the proposed Cincinnati Riverfront redevelopment plan. IORY understands that the redevelopment project provides space for two parallel tracks along the Riverfront to accommodate commuter rail service and that the Southwest Ohio Regional Transit Authority (SORTA) is to be granted the passenger rail operating rights over the Riverfront Track. IORY expresses its belief that freight and commuter rail operations can coexist on the Riverfront trackage. It states that the rail commuter operations along the Cincinnati Riverfront would extend eastward over a rail line IORY recently sold to SORTA and over which IORY will continue to provide rail freight service. IORY states that its proposed rail service over the Riverfront Track would simply extend by about two miles the contemplated sharing of track by IORY and SORTA for joint commuter and freight operations. IORY explains that, as part of the redevelopment project, the Fort Washington Way is to be trenched and is to include a double tracked rail line. IORY indicates that its operations over that route would therefore be below ground level and not disturb the other planned projects. IORY projects that, if it is allowed to purchase the Riverfront Track, it would transport two loaded trains a day over the track. IORY states that it would have great flexibility in the timing of those trains and would work with the City to accommodate the other interests along the Riverfront area. IORY states that, if it is successful in acquiring the Riverfront Track through the OFA process, IORY will fully cooperate with the City and other interested parties to ensure that the project is not impeded and that the future contemplated use of the Riverfront area is not adversely impacted by IORY's freight operations. NW, the City, and Hamilton County replied to GTW and IORY, arguing that exemption of the OFA provisions is justified. NW states that the whole predicate of the GTW and IORY arguments for retention of the track and denial of the OFA exemption is that shippers do not have competitive access to a rail/barge transloading facility at Cincinnati other than one served exclusively by CSXT. However, NW asserts that there are competitive options to rail/barge transloading facilities other than the Riverfront Track. NW states that IORY has failed to disclose that it already serves directly the Queen City River Terminals, Inc. on Kellogg Avenue. NW also notes the existence of a dormant Ohio River Grain Company on Eastern Avenue that IORY could serve if reopened at an allegedly limited expense. In addition, NW indicates that IORY can interchange with NW at McCullough Yard and IORY has a direct operation into CSXT's Queensgates Yard without passing through Gest Street Yard and presumably could make some arrangements with CSXT for interchange with CIND when that carrier moves traffic to and from Queensgates Yard. NW adds that the general congestion has eased at Cincinnati. It disputes IORY's claim that NS has exorbitant switching charges that are a deterrent for IORY using the Gest Street Yard to serve Consolidated Grain and Barge. NW explains that the real problem with operations via CIND to the Consolidated Grain and Barge grain terminal is not the NS intermediate switch charge or operations through Gest Street Yard, but the fact that CIND does not quite reach the terminal. Grain traffic moving via CIND must be trucked across CSXT tracks in order to reach the terminal. This, NW argues, adds cost and time to the service. NW submits, however, that IORY could avoid the added trucking costs, if it shipped grain over CSXT which serves the Consolidated Grain and Barge terminal directly. NW also states that customers willing to export grain via the Ohio River terminals have many options, not just the limited options portrayed by IORY. These customers, according to NW, can ship via the terminals of CF Industries, Cargill Industries, ADM, Consolidated Grain and Barge Riverside, and the Southside Terminal and the Pier Transportation Terminal. Finally, NW indicates that, even if IORY purchased the Riverfront Track, NW has no obligation to repair the CNOTP High Line connection. It adds that, even if that bridge were repaired, the bridge would simply provide IORY with another route for overhead traffic into Gest Street Yard, not a direct connection with CIND, which is the reason given for IORY's current attempts to acquire the Riverfront Running Track. The City responds that there is absolutely no transportation need that supports retention of the Riverfront Track, just as there has been literally no traffic on the line for twelve years. The City states that the retention of rail freight service on the Riverfront Track, which IORY seeks, would jeopardize the feasibility of the redevelopment project. It states that Hamilton County, for example, has explained in its March 9, 1998 letter to the Board that the continuing presence of the Riverfront Track threatens to disrupt the new Bengals stadium and subject the County--and local taxpayers--to significant late penalties. The City argues that, even if construction of various elements of the redevelopment project could be completed if IORY purchased the line, the rail freight operations which IORY seeks to perpetuate would menace and drive away the crowds of pedestrians and visitors that the Riverfront is specifically intended to attract. In addition, the City argues that there are potential safety impacts of operating trains on the Riverfront Track through the central Riverfront area. The City also challenges IORY's argument that IORY's rail service on the Riverfront Track would not be incompatible with the proposed Riverfront redevelopment. The City points out that IORY has never once suggested that freight trains would actually operate on the current site of the Riverfront Track should IORY be allowed to file and consummate an OFA for that track. Rather, the City states that IORY's position in this proceeding is premised entirely on the presumption that IORY's freight operations can and would simply be relocated into the Fort Washington Way trench and onto the commuter rail tracks that IORY asserts will be constructed there. However, the City indicates that there are no existing plans as part of the current reconfiguration of the Fort Washington Way or other Riverfront redevelopment projects to construct a commuter rail or light rail line along the Riverfront. According to the City, the Fort Washington Way reconstruction is designed to accommodate such a transit project should one be pursued in the future, but such decisions are many years away and subject to numerous variables. Richard Mendes, the Deputy City Manager of the City of Cincinnati, indicates that, while the Fort Washington project would accommodate the future construction of a commuter rail line, it quite plainly does not include a double tracked rail line as described in IORY's comments. In addition, Mr. Mendes states that, even if a commuter/light rail line were present along Fort Washington Way, IORY's operations along that line would entail many of the difficulties inherent in freight operation on the current Riverfront Track. Mr. Mendes claims that IORY's statement that such operations would be trenched and not disturb other planned Riverfront projects is untrue. Mr. Mendes states that the redevelopment plans indicate that an at-grade crossing would be required at Broadway--one of downtown Cincinnati's primary north/south thoroughfares, and preliminary location plans show an at-grade crossing at Central Avenue. Mr. Mendes states that these at-grade crossings used by rail freight operators would result in potential safety problems, and delays for vehicles and pedestrians. In this proceeding, we have decided to allow NW to abandon its Riverfront Track, so that the City's Riverfront redevelopment project can proceed. Similarly, in GTW Adverse Discontinuance, served concurrently with this decision, we found that the public convenience and necessity dictated that GTW's trackage rights over the line should be discontinued, so that the line could be abandoned and that the City's Riverfront redevelopment project could proceed. Given these findings, we will not allow our jurisdiction of the OFA provisions to be used to frustrate the operations of the City of Cincinnati and State of Ohio laws. We also will not allow IORY to use the OFA provisions of 10904 to defeat our adverse discontinuance of trackage rights finding and our exemption from section 10903 in this proceeding. As our predecessor agency long held, we believe that, in the exercise of our abandonment jurisdiction, we must consider arguments that there exist overriding public purposes sufficient to justify our withdrawing our jurisdiction where that jurisdiction would operate to defeat a paramount public purpose. In appropriate situations, we will allow the displacement of rail service by other public purposes where the public interest justifies that end. Accordingly, we find that our authority under sections 10903 and 10904 would permit us to deny a petition requesting the Board to establish the conditions of sale and amount of compensation under section 10904, even if the petitioner were a financially responsible person. We find that NW, the City, and the County have shown that the right-of-way is needed for a valid public purpose, i.e., multi-purpose improvements for the City's downtown area. IORY and GTW do not challenge the fact that the City's Riverfront project is needed for a valid public purpose. Presently, the Riverfront Track, the Fort Washington Way expressway (I-71/U.S. 50) and existing surface parking lots serve as barriers between Cincinnati's central business district and the north bank of the Ohio River. As part of a series of planned improvements that will cost nearly $1 billion in public investment, Fort Washington Way will be reconfigured, multi-purpose structured parking lots will replace surface parking lots and, in the absence of the railroad tracks, as well, the riverfront parks will be expanded and reconnected with Cincinnati's downtown. Other components of the Riverfront revitalization include a new Cincinnati Bengals football stadium (to be constructed by Hamilton County), a possible new Cincinnati Reds baseball stadium, a multimodal passenger transportation center and a regional family oriented cultural/ entertainment district, expected to be anchored by the National Underground Railroad Freedom Center (a 125,000 square foot interpretive museum and educati