STB REPORT #11 - JUNE 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 DECISION 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 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. Notice of the exemption was published in the Federal Register on May 4, 1998. The exemption is scheduled to become effective on June 3, 1998. 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 NW shall: (1) consult with the Virginia Department of Environmental Quality, Southwest Regional Office, to determine whether a Virginia Water Protection Permit will be required and to ensure compliance with Virginia's regulations protecting soil erosion, wetland and air quality prior to salvage operations; (2) consult with Virginia Department of Conservation and Recreation, Division of Natural Heritage to determine whether any impacts could occur to the Indiana bat, Virginia spiraea, Appalachian Bewick's wren, Hoffman's xystodesmid millipede, Cyclotrachelus incisus (a ground beetle), Green-faced clubtail, Diana fritillary, Eastern small-footed bat, Cardamine flagellifera (a bittercress), Box huckleberry, and Sweet pine sap, in Dickenson County and (2) the Diana fritillary, Regal fritillary and the Carey saxifrage, in Buchanan County, VA. Decided: May 28, 1998 Service Date - June 1, 1998 ----------------------------------------------------------------------- SURFACE TRANSPORTATION BOARD ENVIRONMENTAL ASSESSMENT NO. AB 531X PIONEER VALLEY RAILROAD COMPANY, INC. -- ABANDONMENT EXEMPTION IN HAMPDEN COUNTY, MASSACHUSETTS In this proceeding, Pioneer Valley Railroad Company, Inc. (PVRR) has filed a petition in connection with the abandonment of its railroad line from milepost 0.0 to milepost 1.9 in Westfield, Hampden County, MA, a distance of approximately 1.9 miles. In its application, PVRR states that the line bas been embargoed for almost a year and that there is little expectation of renewed rail traffic. The line is elevated above street level as is passes through Westfield and it crosses the Westfield River and the Little Westfield River. PVRR states that it plans to leave all bridge structures in place since Westfield is interested in converting the right-of-way into a recreation trail. We recommend that no conditions be placed on any decision granting abandonment authority. Service Date - June 1, 1998 ----------------------------------------------------------------------- DEPARTMENT OF TRANSPORTATION [STB Finance Docket No. 32760 (Sub-No. 26)] [HOUSTON/GULF COAST OVERSIGHT] Union Pacific Corporation, Union Pacific Railroad Company, and Missouri Pacific Railroad Company--Control and Merger--Southern Pacific Rail Corporation, Southern Pacific Transportation Company, St. Louis Southwestern Railway Company, SPCSL Corp., and The Denver and Rio Grande Western Railroad Company ACTION: Decision No. 5; Notice of Extension to File Requests for Additional Conditions to the UP/SP Merger for the Houston, Texas/Gulf Coast Area, and Revisions to Procedural Schedule. SUMMARY: The Board is granting a motion filed May 20, 1998, by the Texas Mexican Railway Company, the Kansas City Southern Railway Company, the Chemical Manufacturers Association, the Society of the Plastics Industry, Inc., the Texas Chemical Council, and the Railroad Commission of Texas, collectively requesting an extension until July 8, 1998, to file requests and supporting evidence for additional remedial conditions to the UP/SP merger as they pertain to rail service in the Houston, Texas/Gulf Coast region. DATES: Under the revised schedule, the proceeding will now commence on July 8, 1998. On that date, all interested parties must file requests for new remedial conditions to the UP/SP merger regarding the Houston/Gulf Coast area, along with all supporting evidence. SUPPLEMENTARY INFORMATION: On March 31, 1998, the Board instituted an oversight proceeding to consider requests for additional conditions to the UP/SP Merger for the Houston/Gulf Coast area, including those that seek divestiture of certain of the merged carriers property. All interested persons were directed to file their requests, along with all supporting evidence, by June 8, 1998. On May 20, 1998, the above-named parties moved for a 30-day extension of that date to July 8, 1998. They state that they are working toward a consensus with respect to conditions that they may request, and that additional time is needed to coordinate their proposal and prepare all supporting evidence. The Burlington Northern and Santa Fe Railway Company (BNSF) and the National Industrial Transportation League filed letters stating that they do not oppose the extension. If the Board grants the motion, however, BNSF urges that the revised due date for filing requests for conditions, and other adjustments to the procedural schedule, be made applicable for all interested persons. UP has asked the Board to adhere to the present schedule. We do not believe that a 30-day extension for filing requested conditions will unduly burden UP or delay our disposition of these matters. Accordingly, we will extend the deadline for filing requested conditions, make other related adjustments to the procedural schedule, and make them applicable for all other interested persons. Decided: May 29, 1998 Service Date - June 1, 1998 ----------------------------------------------------------------------- SURFACE TRANSPORTATION BOARD DECISION 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) filed a notice of exemption 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. Notice of the exemption was published in the Federal Register on May 6, 1998. The Board's Section of Environmental Analysis (SEA) served an environmental assessment (EA) in this proceeding on May 13, 1998. In the EA, SEA states that the Logan County Conservation District and Floodplain Management Board has 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. Therefore, SEA recommends that BNSF during salvage activities, shall not store rails, ties, or salvage equipment in the 100-year floodplain. The exemption was scheduled to become effective on June 5, 1998, but a formal expression of intent to file an offer of financial assistance (OFA) has been filed by the Oklahoma Department of Transportation (ODOT) to purchase the entire line, which has the effect of staying the effective date of exemption for 10 days until June 15, 1998. Also, on May 18, 1998, and May 26, 1998, ODOT filed a request for a issuance of a notice of interim trail use (NITU), under the National Trails System Act, and for a public use condition, in order to negotiate with BNSF for acquisition of the right-of-way for use as a trail. ODOT requests that BNSF be barred from removing or destroying any trail-related structures, such as track, ties, and signal equipment, as well as bridges and other rail facilities, for a 180-day period from the effective date of abandonment exemption. ODOT states that it needs the full 180-day period to complete necessary contractual arrangements and obtain necessary governmental authorization. ODOT submitted a statement of willingness to assume financial responsibility for interim trail use and rail banking, and acknowledged that the use of the right-of- way for trail purposes is subject to future reactivation for rail service. By reply dated June 1, 1998, BNSF indicated its willingness to negotiate with ODOT for interim trail use. ODOT has satisfied the requirements for both a public use condition and a NITU and, therefore, imposition of both would be appropriate, commencing with the effective date of the exemption. However, an OFA takes priority over any requests for a NITU or for a public use condition. Therefore, issuance and effectiveness of a NITU and a public use condition will be delayed until the OFA process has been completed. If agreement is reached on sale or subsidy of the line, public use and trail use conditions would be unnecessary and unavailable. If no OFA is filed or if no agreement is reached on the OFA, the appropriate decision and notice of interim trail use will be issued. 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 BNSF, while conducting salvage activities, shall not store rail, ties, or salvage equipment in the 100-year floodplain. 3. If the OFA process terminates, a decision effective on its service date will be issued to impose the notice of interim trail use and the public use condition. 4. The requests for issuance of a notice of interim trail use and for issuance of a public use condition are held in abeyance pending completion of the OFA process. 5. The effective date of the exemption is postponed until June 15, 1998. Decided: June 1, 1998 Service Date - June 2, 1998 ----------------------------------------------------------------------- SURFACE TRANSPORTATION BOARD DECISION AND NOTICE OF INTERIM TRAIL USE OR ABANDONMENT STB Docket No. AB-103 (Sub-No. 12X) THE KANSAS CITY SOUTHERN RAILWAY COMPANY--ABANDONMENT EXEMPTION--IN WEBSTER, BIENVILLE, NATCHITOCHES AND WINN PARISHES, LA The Kansas City Southern Railway Company (KCS) filed a notice of exemption to abandon a 61.62-mile line of railroad between milepost 83.02 at or near Sibley, and milepost 144.64 at or near Carla, in Webster, Bienville, Natchitoches and Winn Parishes, LA. Notice of the exemption was published in the Federal Register on June 6, 1997. On July 3, 1997, a decision and notice of interim trail use or abandonment (NITU) was served, that reopened the proceeding to implement interim trail use/rail banking for the entire line and provided a 180-day period for the National Salvage & Service Corp. (Commenter), to negotiate an interim trail use/rail banking agreement with KCS for the right-of-way involved in this proceeding. The negotiation period under the NITU expired on January 2, 1998. On November 26, 1997, a NITU was served, which authorized a 180-day period for the Louisiana Department of Culture, Recreation and Tourism (DCRT), to negotiate an interim trail use/rail banking agreement with KCS for the right-of-way involved in this proceeding. The negotiation period under the NITU expired on May 25, 1998. On May 22, 1998, the Louisianans for Parks and Tourism (LPT), a new negotiating party, filed a request for a NITU for the entire line. LPT stated that DCRT did not wish to continue its NITU negotiations with KCS beyond May 25, 1998. By letter dated May 27, 1998, DCRT confirmed that it does not wish to continue negotiations with KCS beyond May 25, 1998. LPT submitted a statement indicating its willingness to assume full financial responsibility for the management of, and for payment of taxes for, the right-of-way, and acknowledged that the use of the right-of-way as a trail is subject to future reactivation for rail service. Also on May 22, 1998, KCS indicated its willingness to negotiate with LPT over trail use/rail banking of the line. It is ordered: 1. This proceeding is reopened. 2. Upon reconsideration, the notice of exemption published in the Federal Register on June 6, 1997, exempting the abandonment of the line described above is modified to the extent necessary to implement interim trail use/rail banking as set forth below until November 29, 1998. 3. If an interim trail use/rail banking agreement is reached, it must require the trail user to assume, for the term of the agreement, full responsibility for management of, for any legal liability arising out of the transfer or use of (unless the user is immune from liability, in which case it need only indemnify the railroad against any potential liability), and for the payment of any and all taxes that may be levied or assessed against the right-of-way. 4. Interim trail use/rail banking is subject to the future restoration of rail service and to the user's continuing to meet the financial obligations of the right-of-way. 5. If interim trail use is implemented, and subsequently the user intends to terminate trail use, it must send the Board a copy of this decision and notice and request that it be vacated on a specific date. 6. If an agreement for interim trail use/rail banking is reached by November 29, 1998, interim trail use may be implemented. If no agreement is reached by that time, KCS may fully abandon the line. Decided: May 28, 1998 Service Date - June 2, 1998 ----------------------------------------------------------------------- SURFACE TRANSPORTATION BOARD DECISION STB Docket No. AB-290 (Sub-No. 198X) NORFOLK AND WESTERN RAILWAY COMPANY--ABANDONMENT EXEMPTION-- IN LYNCHBURG, GA Norfolk and Western Railway Company (NW) filed a notice of exemption to abandon a 0.74-mile line of railroad between milepost L-0.20 and milepost L-0.94 in Lynchburg, VA. Notice of the exemption was published in the Federal Register on May 5, 1998. The exemption is the scheduled to become effective on June 4, 1998. The Board's Section of Environmental Analysis (SEA) has issued an environmental assessment (EA) in this proceeding, served May 8, 1998. In the EA, SEA states that the National Geodetic Survey (NGS) has identified seven geodetic station 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 seven geodetic station markers. Therefore, SEA recommends that a condition be imposed requiring NW to consult with the NGS and provide NGS with 90 days notice prior to disturbing or destroying any geodetic markers. SEA also indicates that the Commonwealth of Virginia, Department of Game and Inland Fisheries, requests that NW use appropriate erosion and sediment control measures, and that the measures should be maintained throughout the project due to the close proximity of an intermittent stream. Therefore, SEA recommends that NW be required to use appropriate erosion and sediment control measures, as set forth in the Virginia Erosion and Sediment Control Handbook. SEA also recommends that, prior to engaging in any salvage operations, NW be required to consult with the U. S. Army Corps of Engineers, Norfolk District, to determine if permits are necessary. Additionally, based upon comments to the EA, SEA advises that the Commonwealth of Virginia, Department of Environmental Quality (DEQ), has expressed concern about air quality, water issues, and erosion and sediment control during salvage operations. DEQ states that, during salvage operations, NW is required to control fugitive air emissions and must comply with Virginia opening burning and fugitive air emission regulations and any hazardous waste or hazardous materials must be disposed of in an approved manner. DEQ further states that NW must comply with Virginia's regulations protecting water quality and employ appropriate erosion and sediment control measures for track removal. Accordingly, SEA recommends imposition of a condition requiring that, prior to conducting salvage operations, NW shall consult with the DEQ's West Central Regional Office concerning air quality and waste issues; the Corps Central Virginia Field Office, the Virginia Marine Resources Commission, and DEQ's West Regional Office concerning water issues; and the Department of Conservation and Recreation, Division of Soil and Water Conservation's Henrico Field Office concerning erosion and sediment control. Finally, the United States Department of the Interior, Fish and Wildlife Service, advised that it has not completed its review of the proposed project for potential impacts to federal listed or proposed endangered species and designated critical habitat pursuant to the Endangered Species Act. Therefore, SEA recommends imposition of a condition requiring that NW shall not conduct any salvage activities or dispose of the line until the requirements of section 7 of the Endangered Species Act are met. The recommended conditions will be imposed. It is ordered: 1. This proceeding is reopened. 2. Upon reconsideration, the exemption of the abandonment of the line described above is subject to the conditions that NW shall: (1) consult with the NGS and provide NGS with 90 days notice prior to disturbing or destroying any geodetic markers; (2) consult with the DEQ's West Central Field Office concerning air quality and waste issues; the U.S. Army Corps of Engineers Central Virginia Field Office, the Virginia Marine Resources Commission, and the DEQ's West Regional Office concerning water issues; and the Department of Conservation and Recreation, Division of Soil and Water Conservation's Henrico Field Office concerning soil erosion and sediment control; (3) NW shall use appropriate erosion and sediment control measures, as set forth in Virginia's Erosion and Sediment Control Handbook, 1995; and (4) NW shall not conduct any salvage activities or dispose of the line until the requirements of section 7 of the Endangered Species Act are met. Decided: June 1, 1998 Service Date - June 2, 1998 ----------------------------------------------------------------------- SURFACE TRANSPORTATION BOARD DECISION STB Finance Docket No. 32858 ILLINOIS CENTRAL CORPORATION AND ILLINOIS CENTRAL RAILROAD COMPANY--CONTROL--CCP HOLDINGS, INC., CHICAGO, CENTRAL & PACIFIC RAILROAD COMPANY AND CEDAR RIVER RAILROAD COMPANY We are denying the petition of the United Transportation Union (UTU) for an emergency cease and desist order because the issue raised must first be considered in arbitration under the labor protective provisions of New York Dock. On November 18, 1996, UTU filed a petition for an emergency order requiring the Illinois Central Corporation (IC Corp.) and Illinois Central Railroad Company (ICR) (collectively, IC) to cease and desist from prematurely implementing the transaction approved in this proceeding by decision served on May 14, 1996. In that decision, we approved the acquisition of control by IC Corp. of Chicago, Central and Pacific Railroad Company (CCPR) and Cedar River Railroad Company (CRR) through ownership of the stock of CCP Holdings, Inc., the parent of CCPR and CRR. IC Corp. already controlled ICR. By decision served on November 22, 1996, we established a procedural schedule for IC to respond to the petition and for UTU to file any rebuttal. On November 27, 1996, IC filed a reply. UTU subsequently filed a rebuttal statement. UTU states that contrary the New York Dock conditions, neither an implementing agreement nor a decision of a referee was in place before IC began implementing the transaction. New York Dock provides: No change in operations, services, facilities, or equipment shall occur until after an agreement is reached or the decision of a referee has been rendered. According to UTU, IC has required CCPR crews, on other than unit trains, to report for work at ICR's Markham Yard in Chicago, IL, and to transfer cars between the Markham and Hawthorne Yards. UTU also alleges that IC is requiring eastbound road through freights, operating out of Freeport, IL, to pick up cars at Hawthorne Yard for transfer to Markham Yard, and is having CCPR crews deliver ICR cars to other carriers while on ICR territory. In support, UTU attaches a verified statement of Jeff L. Clements, UTU General Chairperson, as well as copies of time claims, delay reports, and train consists. IC denies that any operational change has occurred or is being contemplated in contravention of the implementing agreement requirement of New York Dock. IC explains that the operating changes that UTU complains about are merely the result of CCPR and ICR restoring full interchange operations at ICR's Markham Yard in Chicago that had previously existed from 1985 to 1991. Between 1991 and July of 1996, only unit trains of grain were interchanged at the Markham Yard; other cars were interchanged between the carriers at CCPR's Crawford Yard. Now that most cars are interchanged at the Markham Yard, IC states that CCPR crews are required to go to and from the Markham Yard in order to pick up and deliver CCPR cars. IC submits that the relocation of interchange points is a routine aspect of railroad operations between independent carriers and is unrelated to common control. In support, IC attaches a verified statement of Mick Burkart, Superintendent of CCPR. Mr. Burkart states that no ICR cars have been interchanged at the Markham Yard by CCPR employees to or from any other carriers. Mr. Burkart also states that IC intends to consolidate ICR and CCPR operations in Chicago so that CCPR employees may handle either ICR cars or CCPR cars, but that this consolidation has not yet occurred and will not occur until an agreement is reached pursuant to the New York Dock conditions. Mr. Burkart avers that the resumption of interchange operations at the Markham Yard has not resulted in the elimination of any yard or train crew assignments, the dismissal or displacement of any train or yard service employees, or the rearrangement of those forces. IC asserts that UTU's complaint concerns time claims, which are formal grievances under existing collective bargaining agreements. Accordingly, IC submits that there is no justification for emergency relief and that UTU has an adequate remedy. If the work assignments to these crews were improper, IC maintains that the employees and their representatives have the opportunity to seek not only compensation but penalties before a neutral arbitrator in final and binding arbitration under the Railway Labor Act (RLA). UTU disagrees and in rebuttal argues that the RLA would not stop IC's attempt to circumvent the clear and unambiguous language of New York Dock. According to UTU, we have exclusive jurisdiction to prevent the premature implementation of a control transaction and requiring that this matter be handled under New York Dock arbitration procedures would render meaningless the implementing agreement requirement of New York Dock. We will not issue the cease and desist order sought by UTU. In our November 22 decision we found that we could not make a determination on the record as it existed and sought more information, which the parties have provided. After reviewing the evidence, it is clear that the relief UTU seeks is not appropriate and, accordingly, we will deny its request for the following reasons. Since our November 22 decision, we have issued a decision on the merits in a case which is dispositive of this one, STB Finance Docket No. 33311 (STB served Dec. 4, 1997) (Kansas City Southern). In Kansas City Southern, we denied UTU's request for an emergency cease and desist order, which UTU had argued was necessary to prevent the parties from prematurely implementing a control transaction without first providing notice or negotiating an implementing agreement under New York Dock. In that case, the railroad responded, as IC does here, that there was no premature implementation and that the activity complained about was unrelated to the control transaction. We determined that the matter must be resolved in the first instance through arbitration. After entry of an arbitral award on the matter, either party can appeal the arbitrator's decision to us if it can satisfy the standards for review. Deferral of such matters to the arbitration process provided by our labor conditions has been consistently approved by the courts. Thus, the law is clear that the matter must first be considered in arbitration. Employees and their representative have 20 days from the date of service of this decision to take the issue raised in UTU's petition to arbitration. For this reason, UTU's petition is dismissed without prejudice. It is ordered: 1. UTU's petition for an emergency cease and desist order is dismissed without prejudice. Decided: May 27, 1998 Service Date - June 2, 1998 ----------------------------------------------------------------------- DEPARTMENT OF TRANSPORTATION Surface Transportation Board [STB Finance Docket No. 33587] City of Rochelle, Illinois--Notice of Exemption--Commencement of Rail Common Carrier Operations The City of Rochelle, IL, a noncarrier, has filed a verified notice of exemption to commence operations over 2.06 miles of track located within the limits of Rochelle, IL. The line was not further described in the notice filed by the City, but a map included with the filing indicates that it begins at a switch near the intersection of Caron Road and Creston Road and ends in a stub east of Gredco Drive. The City states that its projected revenues will not exceed those of a Class III railroad. The effective date of the exemption was May 5, 1998. By petition filed on May 1, 1998, the Rochelle Railroad Company requests that the Board reject and or revoke this exemption. That petition will be addressed in a decision to be issued by the Board. Decided: May 27, 1998 Service Date - June 2, 1998 ----------------------------------------------------------------------- DEPARTMENT OF TRANSPORTATION Surface Transportation Board [STB Finance Docket No. 33591] The Indiana & Ohio Rail Passenger Corporation Trackage Rights Exemption Indiana & Ohio Railway Company, Inc. Indiana & Ohio Railway Company, Inc. (IORY) has agreed to grant local trackage rights to The Indiana & Ohio Rail Passenger Corporation (IORP), for the operation of rail passenger service over the following points: (1) from milepost 39.8, near Diann, MI, to milepost 107.3, near Leipsic, OH; (2) from milepost 110.8 to milepost 114.9 in Ottaway, OH; and (3) from milepost 128.3, near Lima, OH, to milepost 202.7, near Springfield, OH, a distance of approximately 146.02 miles. The agreement that is the subject of this notice is a confirmation of and an amendment to an earlier trackage rights agreement between IORP and IORY and certain other Class III railroads affiliated with the IORY. The parties expected to consummate the transaction on or about May 26, 1998. The earliest the transaction could be consummated was May 22, 1998, the effective date of the exemption. The purpose of the trackage rights is to extend IORP's passenger operations over newly- acquired IORY lines. Decided: May 26, 1998. Service Date - June 2, 1998 ----------------------------------------------------------------------- DEPARTMENT OF TRANSPORTATION Surface Transportation Board [STB Finance Docket No. 33600] Wisconsin Central Ltd. Trackage Rights Exemption Wisconsin & Southern Railroad Company Wisconsin & Southern Railroad Company (WSOR), a Class III rail carrier, has agreed to grant non-exclusive overhead trackage rights to Wisconsin Central Ltd (WCL), a Class II rail carrier, over WSOR's line of railroad between milepost 112.6, at Rugby Junction, WI, and milepost 93.4, at North Milwaukee, WI, including trackage connecting with Fox Valley & Western Ltd.'s (FVW) main line at DBR Junction (milepost 103.1), a distance of approximately 19.2 miles. The purpose of the trackage rights is to interchange cars between WCL and the Canadian Pacific and Union Pacific and between WCL and FVW, as well as connecting various WCL and FVW lines and trackage rights. The transaction is scheduled to be consummated on or after June 1, 1998. Decided: May 26, 1998. Service Date - June 2, 1998 ----------------------------------------------------------------------- DEPARTMENT OF TRANSPORTATION Surface Transportation Board [STB Docket No. AB-32 (Sub-No. 84X)] Boston and Maine Corporation--Abandonment Exemption--in New Haven County, CT Boston & Maine Corporation (B&M) has filed a notice of exemption to abandon an approximately 0.48-mile line of railroad on the Watertown Industrial Track between Engineering Station 19+50 (approximately milepost 0.94) and Engineering Station 44+66 (approximately milepost 1.42) in Waterbury, New Haven County, CT. The line traverses United States Postal Service Zip code 06701. Provided no formal expression of intent to file an offer of financial assistance (OFA) has been received, this exemption will be effective on July 3, 1998, unless stayed pending reconsideration. B&M 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 B&M's filing of a notice of consummation by June 3, 1999, and there are no legal or regulatory barriers to consummation, the authority to abandon will automatically expire. Decided: May 22, 1998. Service Date - June 3, 1998 ----------------------------------------------------------------------- SURFACE TRANSPORTATION BOARD ENVIRONMENTAL ASSESSMENT NO. AB-33 (SUB-NO. 120X) Union Pacific Railroad Company --Abandonment and Discontinuance of Operations Exemption--Warren County, IA In this proceeding, the Union Pacific Railroad Company (UP) has filed a petition in connection with the abandonment of its railroad line known as the Carlisle Branch located between milepost 368.3 near Carlisle to milepost 379.13 near Indianola, a distance of 10.83 miles, and the discontinuance of operations over the end segment of track between milepost 379.13 and 379.98 at Indianola, a distance of .85 mile (a total distance of 11.68 miles) in Warren County, Iowa. There are two active shippers located on the line proposed for abandonment: Heartland Coop and Jerico Services. In 1996, the two shippers transported a total of 20 carloads of chemicals. In 1997, that total increased to 21. In the forecast year of March 1, 1998 through February 28, 1999, UP projects that the two shippers would transport 21 carloads of chemicals. According to UP, train service is provided on the line on an as needed basis, which typically does not exceed more than once per month. The present rail traffic could be trucked over U.S. Highway 69, which runs north-south, or State Highway 92, which runs east-west. Both highways serve Indianola. The State Historical Society of Iowa has not yet completed its review pursuant to Section 106 of the National Historic Preservation Act. Therefore, we recommend that UP retain its interest in and take no steps to alter the historic integrity of the 12 bridges on the line that are 50 years old or older until completion of the Section 106 process of the National Historic Preservation Act. The National Geodetic Survey (NGS) has identified one geodetic station marker that may be affected by the proposed abandonment. Therefore, we recommend that UP provide a minimum of 90 days notice to NGS before engaging in salvage activities on the line proposed for abandonment. Following abandonment and salvage of the rail line, the right-of-way may not be suitable for other public use. In its petition for abandonment, UP states that the line is probably not be suitable for public use because it believes the area is already adequately served by existing roads and utility lines. Service Date - June 3, 1998 ----------------------------------------------------------------------- DEPARTMENT OF TRANSPORTATION Surface Transportation Board [STB Docket No. AB-33 (Sub-No. 117X)] Union Pacific Railroad Company--Abandonment Exemption--in Lake County, CO Union Pacific Railroad Company (UP) has filed a notice of exemption to abandon an approximately 1.8-mile portion of the Leadville Branch from milepost 274.3 near McWethy Drive to the end of the line at milepost 276.1 at the rail yard near U.S. Highway 24, in Leadville, Lake County, CO. The line traverses United States Postal Service Zip Code 80461. The Denver and Rio Grande Western Railroad Company (DGRW) previously owned the involved line of railroad, which became a line on the UP after DRGW was merged into UP on June 30, 1997. However, the Board granted discontinuance authority rather than full abandonment over the Sage-Leadville Line in Docket No. AB-8 (Sub-No. 36X), and Docket No. AB-8 (Sub-No. 39). In this filing, UP is seeking to abandon the stub end of the line. The Lake County Board of County Commissioners filed a request for issuance of a notice of interim trail use for the entire line. The Board will address Lake County's trail use request, and any others that may be filed, in a subsequent decision. Provided no formal expression of intent to file an offer of financial assistance (OFA) has been received, this exemption will be effective on July 4, 1998, unless stayed pending reconsideration. UP 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 UP's filing of a notice of consummation by June 4, 1999, and there are no legal or regulatory barriers to consummation, the authority to abandon will automatically expire. Decided: May 28, 1998. Service Date - June 4, 1998 ----------------------------------------------------------------------- SURFACE TRANSPORTATION BOARD ENVIRONMENTAL ASSESSMENT NO. AB-167 (SUB-NO.1183X) CONSOLIDATED RAIL CORPORATION -- ABANDONMENT EXEMPTION -- IN PHILADELPHIA COUNTY, PENNSYLVANIA In this proceeding, Consolidated Rail Corporation (Conrail) has filed a notice of exemption in connection with the abandonment of its railroad line located between Milepost 2.98+/- to approximately Milepost 3.40+/-, a total distance of approximately 0.42 miles+/-, in Philadelphia County, Pennsylvania. We recommend that no environmental conditions be placed on any decision granting abandonment authority. Service Date - June 4, 1998 ----------------------------------------------------------------------- DEPARTMENT OF TRANSPORTATION Surface Transportation Board [STB Finance Docket No. 33601] Grand Trunk Western Railroad Incorporated -- Petition for Declaratory Order -- Spur, Industrial, Team, Switching or Side Tracks, in Detroit, MI ACTION: Request for comments. SUMMARY: The Surface Transportation Board is instituting a declaratory order proceeding and is requesting comments on the petition of Grand Trunk Western Railroad, Inc. (GTW), for an order declaring that certain tracks located near the Renaissance Center in Detroit, MI, are "spur, industrial, team, switching, or side tracks" under the regulatory exemption at 49 U.S.C. 10906. SUPPLEMENTAL INFORMATION: By petition filed on May 20, 1998, GTW requests that we issue an order declaring that certain tracks located near the Renaissance Center in Detroit, MI, are "spur, industrial, team, switching, or side tracks" that are exempt from Board authority over the abandonment and purchase of lines of railroad. The tracks at issue extend from GTW's Dequindre Line at mileposts 0.57, 0.71, and 0.81, respectively, near the Detroit riverfront. GTW has requested expedited consideration of its petition so that plans for the sale and development of the parcels of land underlying these tracks may proceed promptly. According to GTW, this land is to be developed to support (a) relocation of General Motors Corporation's global headquarters to the Renaissance Center on the Detroit riverfront and (b) a casino district designated by the City of Detroit. By this notice, the Board is requesting comments on GTW's petition. Decided: May 28, 1998. Service Date - June 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. (Dalton) filed an OFA to purchase the line for $650,240. In a decision served on May 5, 1998, Dalton was found to be financially responsible. The effective date of the decision authorizing abandonment and discontinuance was postponed to permit the financial assistance process to proceed. The decision also noted that, on or before June 1, 1998, either party could request that the Board establish terms and conditions for the sale of the line if no agreement was reached during negotiations. On June 1, 1998, Dalton requested that the Board establish the terms and amount of compensation for the sale of the line. By letter dated June 2, 1998, applicants request that the time for filing their evidence and response to Dalton's request be extended from June 5, 1998 to June 9, 1998. Applicants state that they require additional time to complete and file their response. The request is reasonable and will be granted. It is ordered: 1. Applicants reply to Dalton's request to set terms is due on June 9, 1998. Decided: June 4, 1998 Service Date - June 5, 1998 ----------------------------------------------------------------------- DEPARTMENT OF TRANSPORTATION Surface Transportation Board [STB Docket No. AB-33 (Sub-No. 121X)] Union Pacific Railroad Company--Abandonment Exemption--in Arkansas County, AR Union Pacific Railroad Company (UP) has filed a notice of exemption to abandon and discontinue service over a 26.0-mile line of railroad on the Stuttgart Branch from milepost 236.0 near Ricusky to the end of the line at milepost 262.0 near Indiana, in Arkansas County, AR. The line traverses United States Postal Service Zip Code 72042. Provided no formal expression of intent to file an offer of financial assistance (OFA) has been received, this exemption will be effective on July 5, 1998, unless stayed pending reconsideration. UP 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 UP's filing of a notice of consummation by June 5, 1999, and there are no legal or regulatory barriers to consummation, the authority to abandon will automatically expire. Decided: May 27, 1998. Service Date - June 5, 1998 ----------------------------------------------------------------------- SURFACE TRANSPORTATION BOARD DECISION STB Docket No. AB-290 (Sub-No. 193X) NORFOLK AND WESTERN RAILWAY COMPANY-- ABANDONMENT EXEMPTION--IN WAYNESBORO, VA Norfolk and Western Railway Company (NW) filed a notice of exemption 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., between Station 0+64 and Station 60+00 in Waynesboro, VA. Notice of the exemption was published in the Federal Register on May 6, 1998. The exemption is scheduled to become effective on June 6, 1998. The Board's Section of Environmental Analysis (SEA) served an environmental assessment (EA) in this proceeding on May 20, 1998. In the EA, SEA states that the Virginia Department of Environmental Quality (DEQ) has expressed concern about air quality, waste issues, and erosion and sediment control during salvage operations. DEQ states that, during salvage operations, NW is required to control fugitive air emissions and any land clearing debris must be disposed of in an approved manner. DEQ also states that NW should comply with Virginia open burning and fugitive air emission regulations. DEQ further states that NW should employ appropriate erosion and sediment control measures for track removal. 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 NW shall consult with the Virginia Department of Environmental Quality, Valley Regional Office, prior to conducting any salvage operations, to ensure compliance with Virginia's regulations regarding soil erosion and air quality. Decided: June 1, 1998 Service Date - June 5, 1998 ----------------------------------------------------------------------- SURFACE TRANSPORTATION BOARD DECISION STB Docket No. AB-549 CITY OF ROCHELLE, ILLINOIS--ADVERSE DISCONTINUANCE-- ROCHELLE RAILROAD COMPANY The petition of the City of Rochelle, Illinois, for waiver of certain regulations for the filing of a third party or "adverse" discontinuance application will be granted to the extent discussed in this decision. The City indicates that it intends to ask the Board to find that the public convenience and necessity permit the discontinuance of operations by the Rochelle Railroad Company (RRC) over 2.06 miles of track that the City owns in an industrial park within the City. RRC, the current operator, has been operating the line under lease. In a separate proceeding, the City is seeking to commence substitute operations over its line under its own authority. By petition filed May 8, 1998, the City seeks waiver of all filing requirements so as to allow it to file an adverse discontinuance application that would contain only the following information: (1) the name and address of the applicant; (2) the name and address of counsel; (3) a detailed map of the facilities involved; (4) total carloads broken out for each of the shippers currently using the line (asserted to be three); (5) summary of the principal commodities handled, if available; (6) summary operating plan for operations of the substitute carrier; (7) certification that the City's current, or proposed, operations comply, or will comply, with all federal and state safety requirements; (8) opinion of counsel that the prior lease with RRC was terminated in accordance with its terms; (9) documentation from the City that authorizes the operations of the substituted service; (10) a statement from the City Manager of the reasons for the application and the benefits that will be obtained if the application is approved; and (11) supporting statements from shippers. The City also requests waiver of all notice and publication requirements, except the following: (1) The instant petition would be served on the "relevant parties" (the shippers on the line, the Rochelle Railroad Company, and connecting "trunk line" carriers). The City requests that its petition for waiver serve as the notice of intent to discontinue or to abandon service. (2) A copy of the application would be served on each of the aforementioned "relevant parties" and on the Illinois Commerce Commission. Finally, the City requests waiver of our requirement of environmental analysis. On May 15, 1998, RRC filed a motion to strike the City's request for a waiver. On May 29, 1998, Americold Inc., which states that it is a shipper on the 2.06 miles of track operated by RRC, objected to the City's petition for waiver. On June 1, 1998, the City filed a reply to RRC's motion. The City's waiver request will be granted. Any additional requirements would not be relevant to an adverse discontinuance action. Similar requests have previously been granted by the Board or its predecessor agency. The City will be required, however, (a) to serve a copy of this decision upon all current shippers on the line, upon all shippers with sidings on the line, and upon all carriers that connect with RRC. Our waiver of environmental regulations is justified because the City is merely proposing to substitute operators. RRC's motion to strike will be denied. RRC argues that the petition for waiver was not properly served. RRC argues that the City's request for waiver must be rejected on the grounds that it should have been hand delivered to RRC's counsel at his Washington, DC office, the method used to file the document with the Board, rather than served by first class mail. RRC's argument is not persuasive. Our regulations do not specifically require petitions for waiver to be served on outside parties. Moreover, the purpose of the above quoted regulation is to ensure that parties do not disadvantage each other by the use of inferior filing methods. This purpose was not contravened here. First class mail service is not an inferior means of service. RRC has not shown that it was prejudiced by petitioner's use of the mails. The City's timely service by first class mail does not constitute a reason to reject the notice. RRC also argues that the Board should reject the petition for waiver because it does not name the specific regulations that the City seeks to waive but, rather, provides a list of information that it proposes to provide (not to be waived) in its application. The City has identified the regulations with sufficient specificity to enable the Board to waive the City's compliance with them. RRC also objects that the information that the City would not be submitting is required to enable opponents to contest the adverse discontinuance. However, other than the System Diagram Map, RRC has not pointed to specific data or information that it would need to contest the application. There is no need for a system diagram map. None of the excluded information is relevant to an adverse discontinuance application, which is designed to permit a change of operators. Nor are the standard notice and publication requirements for abandonments required. The shippers on the line, the only parties who are likely to be affected by the proposed change of operators, will receive notice. The Illinois Commerce Commission will also receive notice. Americold offers no support for its objection to the City's waiver request, other than to state that the City has failed to inform Americold of its intentions. But Americold has pointed to no notice requirements that the City has violated. Americold's objections will be denied. It is ordered: 1. RRC's motion to strike and Americold's objection are denied. 2. The City's petition is granted, to the extent discussed above. Decided: June 3, 1998 Service Date - June 5, 1998 ----------------------------------------------------------------------- DEPARTMENT OF TRANSPORTATION Surface Transportation Board [STB Finance Docket No. 33597] Great Western Railway of Colorado, LLC--Acquisition and Operation Exemption--Great Western Lines, LLC Great Western Railway of Colorado, LLC (GWC), a Class III rail carrier, has filed a verified notice of exemption to acquire approximately 23 miles of rail line from Great Western Lines, LLC. The line involved in the acquisition transaction is located in Colorado as follows: (1) between milepost 76.5, at Fort Collins, and milepost 98.9 at Greeley; and (2) the Burlington Northern Railroad Company's former interchange track at Loveland, between the end of the track and a point 10 feet south of Tenth Street in Loveland. The transaction was to be consummated on or shortly after May 14, 1998, the effective date of the exemption. Decided: June 2, 1998. Service Date - June 5, 1998 ----------------------------------------------------------------------- DEPARTMENT OF TRANSPORTATION Surface Transportation Board [STB Finance Docket No. 33598] OmniTRAX, Inc.--Control Exemption--Northern Ohio & Western Railway, LLC OmniTRAX, Inc. (OmniTRAX), a noncarrier holding company has filed a notice of exemption to control Northern Ohio & Western Railway, LLC (NOW), a Class III rail carrier. OmniTRAX is proposing to acquire all of the issued and outstanding stock of NOW. The transaction was scheduled to be consummated on May 14, 1998, the effective date of the exemption. Applicant currently controls 9 Class III railroad subsidiary operating in 7 states: Central Kansas Railway LLC and Kansas Southwestern Railway LLC, in Kansas; Chicago Rail Link LLC and Manufacturers Junction Railway LLC, in Illinois; Georgia Woodlands Railroad LLC, in Georgia; Great Western Railway of Colorado LLC, in Colorado; Great Western Railway of Iowa LLC, in Iowa; Newburgh and South Shore Railroad Limited, in Ohio; and Panhandle Northern Railroad LLC, in Texas. Decided: June 2, 1998. Service Date - June 5, 1998 ----------------------------------------------------------------------- DEPARTMENT OF TRANSPORTATION Surface Transportation Board [STB Finance Docket No. 33611] Union Pacific Railroad Company--Petition for Declaratory Order--Former Missouri-Kansas-Texas Railroad Line Between Jude and Ogden Junction, TX ACTION: Institution of declaratory order proceeding; request for comments. SUMMARY: The Surface Transportation Board is instituting a declaratory order proceeding and requesting comments on the petition of the Union Pacific Railroad Company (UP), for an order declaring that the Board lacks authority over UP's decision to rehabilitate and reactivate 16.7 miles of line passing though New Braunfels, TX. SUPPLEMENTAL INFORMATION: By petition filed on May 26, 1998, UP requests the Board to issue an order declaring that its rehabilitation of the segment of the former Missouri-Kansas- Texas Railroad (MKT) line that runs parallel to UP's mainline in the New Braunfels, TX area does not need to be reviewed by the Board. According to UP, the City Council of New Braunfels adopted in May a resolution requesting UP to permanently cease rehabilitating the line. UP states that it has encountered significant congestion on its Austin Subdivision north of San Antonio. UP maintains that, because of inadequate rail capacity on this route, it has been unable to haul all of the aggregates needed by the Texas construction industry. To remedy the capacity problem, UP has begun rehabilitating the former MKT line between UP milepost 219.5 at Jude, TX (about 10 miles south of San Marcos), and UP milepost 236.2 at Ogden Junction, TX, a distance of about 16.7 miles. UP claims that this rehabilitation project will eliminate the only single-track section on the 56 miles between San Marcos and San Antonio. UP notes that, in the UP-MKT merger, the Interstate Commerce Commission granted abandonment authority for the line. UP states that, while service has been discontinued on the line, the track was not removed and, except for a few locations, the line is intact. Parts of the track continue to be used. UP argues that 49 U.S.C. 10901 does not give the Board authority over all rail track projects. It notes that 49 U.S.C. 10906 excludes spur tracks from Board construction jurisdiction. While the line at issue is not a spur, UP contends that some track projects fall between section 10906 exclusions and section 10901 jurisdiction, because they are neither an extension of a rail line nor an extension of a railroad line. Specifically, UP argues that section 10901 does not apply to this situation because it is a mere addition of a second track to an existing line or railroad, [and it does] not alter the competitive situation by injecting a carrier into a new service area. UP claims that it is not creating a new rail line, but simply reinstating service on a previously operated line. Moreover, it argues that it is not penetrating new territory, because UP is the only railroad serving customers in the area. UP also contends that its rehabilitation is not a line addition or extension, because it is simply developing a second main line or double tracking to increase the capacity of the existing mainline. According to UP, the ICC found that it did not have jurisdiction over double track construction. By this notice, the Board is requesting comments on UP's petition. Decided: June 1, 1998. Service Date - June 5, 1998 ----------------------------------------------------------------------- SURFACE TRANSPORTATION BOARD DECISION STB Docket No. AB-33 (Sub-No. 118X) UNION PACIFIC RAILROAD COMPANY--ABANDONMENT EXEMPTION--IN EL PASO COUNTY, CO By petition filed on February 18, 1998, Union Pacific Railroad Company (UP) seeks an exemption to abandon a 3.07-mile line of railroad known as the Templeton Gap Spur (herein, the Line), extending from the end of the line at milepost 602.70 (North Academy Boulevard) to milepost 605.77, in Colorado Springs, El Paso County, CO. Notice of the institution of an exemption proceeding was published in the Federal Register on March 10, 1998. On March 5, 1998, the City of Colorado Springs filed a letter in support of the proposed abandonment. The United Transportation Union requests imposition of labor protective conditions. We will grant the petition, subject to labor protective conditions and an environmental condition. The Line was part of a line of railroad previously owned by the Chicago, Rock Island & Pacific Railroad (Rock Island). The Rock Island originally extended westward from Limon to Colorado Springs, CO, where it connected with the north-south line of The Denver and Rio Grande Western Railroad Company (DRGW). When the Rock Island ceased operations in 1978, DRGW became the owner of the Line. In 1989, the City purchased from DRGW the right-of- way underlying the track structure. DRGW later merged into UP in 1996. UP states that DRGW had previously agreed to seek abandonment authorization for the Line in accordance with an established timetable, which has been extended to October 1, 1998. The DRGW had previously sought to abandon the Line. The notice of exemption was rejected by the former Interstate Commerce Commission because evidence indicated that local traffic had moved over the line during the prior two years. Because DRGW also claimed the line to be a spur, DRGW was invited to file a petition for declaratory order in the event it continued to desire an agency opinion concerning whether the line was a spur track. After DRGW made such a filing, the ICC found that the Line was not an exempt spur track. In any event, UP states that the Line has been used by only one shipper, Drywall Products, Inc., and that rail service to Drywall has been on an as-needed basis. According to UP, Drywall has agreed not to oppose the proposed abandonment. Indeed, no comments or protests have been received. Authority to abandon will permit UP to honor the commitment made by DRGW. The City already owns the Line's underlying right-of-way, which the City plans to develop as a linear park and trail corridor. Because no shipper opposes the proposed abandonment and there appear to be alternative forms of transportation available, we find that regulation is not necessary to protect shippers from an abuse of market power. Nevertheless, to ensure that shippers are informed of our decision, we will direct UP to serve a copy of this decision on Drywall and PCBS within 5 days of the service date of this decision and to certify to us that it has done so. In the environmental assessment (EA) served on April 17, 1998, SEA indicated that the National Geodetic Survey (NGS) has identified two geodetic station markers that may be affected by the proposed abandonment. SEA, therefore, recommends that we impose a condition requiring UP to notify NGS at least 90 days prior to any salvage activities that may disturb or destroy these markers so that plans can be made for their relocation. No comments were filed in response to the EA. It is ordered: 1. Under 49 U.S.C. 10502, we exempt from the prior approval requirements of 49 U.S.C. 10903 the abandonment by UP of the above-described 3.07-mile rail line, subject to: (1) the employee protective conditions in Oregon Short Line R. Co.--Abandonment--Goshen, 360 I.C.C. 91 (1979); and (2) the condition that UP notify NGS at least 90 days prior to any salvage activities that may disturb or destroy these markers so that plans can be made for their relocation. 2. UP must serve a copy of this decision on Drywall and PCBS within 5 days after the service date of this decision and certify to the Board that it has done so. 3. Provided no OFA has been received, this exemption will be effective on July 8, 1998. 4. UP 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 UP's filing of a notice of consummation by June 9, 1999, and there are no legal or regulatory barriers to consummation, the authority to abandon will automatically expire. Decided: June 2, 1998 Service Date - June 8, 1998 ----------------------------------------------------------------------- SURFACE TRANSPORTATION BOARD DECISION Finance Docket No. 32645 BIG STONE-GRANT INDUSTRIAL DEVELOPMENT AND TRANSPORTATION, L.L.C. CONSTRUCTION EXEMPTION ORTONVILLE, MN AND BIG STONE CITY, SD Finance Docket No. 32645 (Sub-No. 1) BIG STONE-GRANT INDUSTRIAL DEVELOPMENT AND TRANSPORTATION, L.L.C. PETITION UNDER 49 U.S.C. 10901(d) In Finance Docket No. 32645 (ICC served Sept. 26, 1995), Big Stone-Grant Industrial Development and Transportation, L.L.C. (Big Stone), was granted a conditional exemption to construct approximately 2 miles of track in the vicinity of Ortonville, MN, and Big Stone City, SD. The September 26 decision stated that, upon completion of the environmental review, a further decision would be issued addressing the environmental impacts of the proposal and, if appropriate, making the exemption effective at that time. The decision also stated that action on the related petition in Finance Docket No. 32645 (Sub-No. 1), seeking issuance of a certificate of public convenience and necessity authorizing the proposed construction to cross main line tracks of the Burlington Northern Railroad Company (BN), must await a final decision authorizing the construction. A petition to reopen and revoke the conditional grant was filed by John D. Fitzgerald, for and on behalf of United Transportation Union, General Committee of Adjustment (Fitzgerald), and Big Stone replied. On March 25, 1998, in light of adverse court decisions involving the proposal, Big Stone requested leave to withdraw both the petition for construction authority and the petition requesting crossing authority and to vacate the September 26 decision. Fitzgerald has replied to this request. According to Big Stone, on December 5, 1997, the United States Court of Appeals for the Eighth Circuit affirmed without opinion a Minnesota District Court decision declaring that Big Stone would tortiously interfere with two existing contracts between BN and a local operator, if Big Stone sought to build, and arranged for operations over, its rail line. Big Stone submits that, because it did not seek further appeal, any attempt to pursue the rail construction project, as proposed, could subject it to further litigation and claims for damages from BN. Accordingly, stating that the proposed project is no longer feasible, Big Stone seeks to withdraw the construction and crossing petitions, and requests that the September 26 decision conditionally granting the construction exemption be vacated without prejudice to its right to obtain approval for any other construction project that Big Stone may pursue in the same region in the future. In its reply, Fitzgerald opposes the withdrawal request, contending that granting it would be prejudicial to the interests of employees. Notwithstanding his pending petition to reopen and revoke the conditional grant, Fitzgerald objects to our vacating the prior decision which conditionally exempted the proposed construction. Fitzgerald argues that we now have the discretion to include labor protective conditions in any construction proposal. However, if the withdrawal request is granted and Big Stone files a new construction proposal, Fitzgerald submits that any such new proposal would be governed by the current 49 U.S.C. 10901, which does not include discretionary labor protective provisions. Rather than granting the withdrawal request, Fitzgerald contends that we should require Big Stone to amend its present pleading, subject to an appropriate supplemental filing fee, when a new construction proposal is developed. Fitzgerald's position is without merit. Any exemption authority that we may have granted in this proceeding would have only been permissive in nature, and Big Stone could have chosen not to consummate the proposal at any time. Accordingly, because Big Stone has presented valid reasons in support of its position, it should be allowed to withdraw such a permissive action without prejudice. Fitzgerald's alternative is not a valid option. Any future filing will be a new construction proposal. A prior conditional grant, based on a different proposal, would be meaningless. Accordingly, the motion to withdraw the petitions and vacate the prior decision will be granted, without prejudice. It is ordered: 1. Big Stone's request to withdraw the construction and crossing petitions is granted, without prejudice. 2. The decision served September 26, 1995, conditionally granting the construction exemption, is vacated. Fitzgerald's pending petition to reopen and revoke the conditional grant is denied as moot. 3. The proceedings are dismissed. Decided: May 29, 1998 Service Date - June 9, 1998 ----------------------------------------------------------------------- SURFACE TRANSPORTATION BOARD STB Finance Docket No. 33407 Dakota, Minnesota & Eastern Railroad Corporation -- Construction and Operation of New Rail Facilities in Campbell, Converse, Niobrara, and Weston Counties, Wyoming, Custer, Fall River, Jackson, and Pennington Counties, South Dakota, and Blue Earth, Nicollet, and Steele Counties, Minnesota. Notice of Availability of Draft Scope of Study for the Environmental Impact Statement (EIS) and Request for Comments. On February 20, 1998, the Dakota, Minnesota & Eastern Railroad Corporation (DM&E) filed an application with the Surface Transportation Board for authority to construct and operate new rail line facilities in east-central Wyoming, southwest South Dakota, and south-central Minnesota. The project involves a total new construction of 280.9 miles of rail line. Additionally, DM&E proposes to rebuild 597.8 miles of existing rail line along its current system to standards acceptable for operation of unit coal trains. Because the construction and operation of this project has the potential to result in significant environmental impact, the Board's Section of Environmental Analysis (SEA) has determined that the preparation of an Environmental Impact Statement (EIS) is appropriate. The proposed action, referred to as the Powder River Basin Expansion Project, would involve the construction and operation of 280.9 miles of new rail line and the rebuilding of 597.8 miles of existing rail line by the Dakota, Minnesota & Eastern Railroad Corporation (DM&E), Brookings, South Dakota, as described in the February 20, 1998 application for construction and operation authority for the project filed by DM&E. The Board intends to conduct an environmental analysis of the new construction and the increase in operations over DM&E's existing system. The EIS will not consider any proposed construction or improvements to DM&E's existing system, but will address the anticipated impacts of the projected increases in train traffic over the entire existing system. The reasonable and feasible alternatives that will be evaluated in the EIS are (1) the no- action alternative (2) construction of the project along the identified preferred alignments in Wyoming and South Dakota for the mainline extension and in Minnesota for the Mankato Bypass and Owatonna connecting track and (3) construction of the project along each of the identified alternative alignments in Wyoming and South Dakota for the mainline extension and in Minnesota for the Mankato Bypass and Owatonna connecting track. Analysis in the EIS will address the proposed activities associated with the construction and operation of new rail facilities and their potential environmental impacts, as appropriate. The scope of the analysis will include the following activities: 1. Proposed construction of new rail mainline extension to access coal mines south of Gillette, Wyoming. 2. Proposed construction of new rail mainline to bypass DM&E's existing trackage rights on Union Pacific Railroad in Mankato, Minnesota. 3. Proposed construction of new rail line connection between DM&E and I&M Rail Link south of Owatonna, Minnesota. The EIS will address potential impacts from the proposed construction and operation of new rail facilities on the human and natural environment. Impacts areas addressed will include the categories of land use, biological resources, water resources, geology and soils, air quality, noise, energy resources, socioeconomics as they relate to physical changes in the environment, safety, transportation systems, cultural and historic resources, recreation, aesthetics, and environmental justice. Analysis in the EIS will address the potential environmental impacts associated with the increased level of rail traffic on DM&E's existing rail system due to operation of the proposed new rail facilities. The scope of the analysis will include the following activities: 1. Analysis of anticipated changes in the levels of rail traffic along the existing DM&E system to be rebuilt, in association with proposed new construction projects, to facilitate coal transportation. Those segments of rail line that meet or exceed the Board's thresholds for environmental review will be evaluated. In cases where the Board's environmental rules do not provide a threshold, the EIS will use eight trains per day or more as the threshold for environmental evaluation. Service Date - June 10, 1998 ----------------------------------------------------------------------- SURFACE TRANSPORTATION BOARD ENVIRONMENTAL ASSESSMENT NO. AB- 32 (SUB-NO. 84X) Boston and Maine Corporation -- Abandonment and Discontinuance of Service -- New Haven County (Waterbury), CT In this proceeding, the Boston and Maine Corporation has filed a notice of exemption in connection with the abandonment of its railroad line located between milepost 0.94 and milepost 1.42, a distance of 0.48 miles in New Haven County (Waterbury), CT. 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 - June 11, 1998 ----------------------------------------------------------------------- SURFACE TRANSPORTATION BOARD DECISION Docket No. AB-12 (Sub-No. 185X) SOUTHERN PACIFIC TRANSPORTATION COMPANY--ABANDONMENT EXEMPTION-- SUMAN-BRYAN LINE IN BRAZOS, AND ROBERTSON COUNTIES, TX In Finance Docket No. 32760, Decision No. 44 (STB served Aug. 12, 1996), the Board granted the petition of Southern Pacific Transportation Company (SPT) for an exemption to abandon the approximately 12.53 miles of railroad line between milepost 117.6 near Suman, TX, and milepost 105.07 near Benchley, TX. On May 15, 1998, the Union Pacific Railroad Company (UP), as successor in interest to the SPT, filed a letter stating that it has decided to retain this line and to not exercise the abandonment authority. UP asks that the Board vacate the abandonment exemption. It appears from UP's statement that abandonment of the line has not been consummated and, consequently, that the Board retains jurisdiction. Accordingly, UP's request will be granted and the abandonment exemption granted by the Board in Docket No. AB-12 (Sub-No. 185X) will be vacated. It is ordered: 1. The abandonment exemption granted in Docket No. AB-12 (Sub-No. 185X) is vacated. 2. This proceeding is discontinued. Decided: June 8, 1998 Service Date - June 12, 1998 ----------------------------------------------------------------------- SURFACE TRANSPORTATION BOARD ENVIRONMENTAL ASSESSMENT DOCKET NO. AB-33 (Sub. No. 121X) Union Pacific Railroad Company -- Notice of Exemption in Arkansas County, Arkansas In the above entitled proceeding, the Union Pacific Railroad Company has filed a notice of exemption in connection with the abandonment of its line of railroad known as the Stuttgart Branch, Ricusky-Indiana Line between Milepost 236.0 near Ricusky to the end of the line at Milepost 262.0 near Indiana, a distance of 26.0 miles in Arkansas County, Arkansas. The right-of-way passes through a generally rural agricultural area with a few industrial sites. In its application, UP states that there has been no traffic on the line during the past two years. The National Geodetic Survey has informed us that 43 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 UP. We will recommend NGS's request as a condition to any 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 - June 12, 1998 ----------------------------------------------------------------------- SURFACE TRANSPORTATION BOARD DECISION STB Docket No. AB-55 (Sub-No. 561X) CSX TRANSPORTATION, INC.--ABANDONMENT EXEMPTION-- IN CLARKE COUNTY, GA By petition filed February 23, 1998, CSX Transportation, Inc. (CSXT) seeks an exemption to abandon a line known as the Atlanta Service Lane, Abbeville Subdivision, between milepost YYA-37.44 at East Athens and milepost YYA-39.34 at Athens, a distance of 1.9 miles in Clarke County, GA. The United Transportation Union seeks the imposition of employee protective conditions. We will grant the exemption, subject to standard employee protective conditions, an historic preservation condition, and an environmental condition. Petitioner states that in past years only one rail patron, Clarke Milling Company, Inc. (Clarke Milling), has shipped or received freight over the line. Clarke Milling operates an agricultural supply company in Athens which is located at the beginning of the line near milepost YYA-39. According to CSXT, the shipper has made minimal use of the line to receive shipments of whole grain: in 1994 and 1995, the shipper received 38 and 32 carloads of whole grain, respectively and, in 1996, the shipper received only 7 carloads. The majority of Clarke Milling's inbound shipments are now shipped via truck, while all outbound shipments are handled exclusively by that mode. Since April 10, 1996, there have been no rail shipments either originating or terminating on the line. Overhead traffic ceased in 1997, when shipper IMC Vigoro closed its facility in East Athens at milepost YYA-37. According to petitioner, the line near Clarke Milling's facility is in poor condition and requires extensive rehabilitation. There are three lengthy bridges between mileposts YYA-38 and YYA-39 that require immediate and extensive repairs. Petitioner estimates that bridge repairs, tie replacement, and surfacing to operate over this line in a safe condition would require an expenditure of approximately $380,000. Petitioner asserts that there is no justification for such an expenditure in light of the lack of traffic on the line. Petitioner states that the transportation options available to a shipper include the continued use of motor carriers that serve the area. In the unlikely event that a shipper may require rail service in the future, CSXT avers that its public team track facilities in Athens, located approximately 3 highway miles from Clarke Milling's facility, could be utilized. In the EA, SEA indicated that: (1) the Georgia State Historic Preservation Officer (SHPO) has identified the entire 2.34-mile Abbeville Subdivision (consisting of the 1.9-mile segment specifically addressed in this proceeding plus a .44-mile segment of previously abandoned track) as eligible for listing in the National Register of Historic Places; the SHPO has also indicated that elements of this rail line are located within the boundaries of the National Register- listed Athens Warehouse Historic District; and (2) CSXT 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. CSXT was granted authority to abandon a .44-mile segment of the Abbeville Subdivision between milepost YYA-37.44 and milepost YYA-37 in STB Docket No. AB-55 (Sub-No. 545X) (STB served Aug. 29, 1997). By letter filed February 3, 1998, CSXT notified the Board that it had exercised the authority granted in the Sub-No. 545X proceeding, effective January 15, 1998. As noted, the Georgia SHPO has identified the entire 2.34-mile Abbeville Subdivision as eligible for listing in the National Register of Historic Places. However, because abandonment of the .44-mile segment of line in the Sub-No. 545X proceeding had already been consummated before the Board received the SHPO's notification, the Board does not have jurisdiction to impose any condition with respect to that segment. SEA, therefore, recommended that the following conditions be imposed on any decision granting abandonment authority: (1) CSXT 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 proceeding until completion of the section 106 process of the National Historic Preservation Act, 16 U.S.C. 470f; and (2) because of the presence of hazardous contamination on the right-of-way, CSXT shall not engage in any salvage activities or otherwise dispose of the line until the Board is notified in writing by CSXT that it has developed, in consultation with the U.S. Environmental Protection Agency (EPA), Region 4: (a) measures approved by EPA to ensure safe salvage operations, and (b) any necessary remediation procedures, such as removing or capping portions of the right-of-way, that EPA and CSXT have agreed upon. We will impose the conditions recommended by SEA. Based on SEA's recommendations, we conclude that the proposed abandonment, if implemented as conditioned, will not significantly affect either the quality of the human environment or the conservation of energy resources. It is ordered: 1. Under 49 U.S.C. 10502, we exempt from the prior approval requirements of 49 U.S.C. 10903 the abandonment of the above-described line, subject to the employee protective conditions in Oregon Short Line R. Co.--Abandonment--Goshen, 360 I.C.C. 91 (1979), and subject to the conditions that: (1) CSXT 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 proceeding until completion of the section 106 process of the National Historic Preservation Act, 16 U.S.C. 470f; and (2) CSXT shall not engage in any salvage activities or otherwise dispose of the line until the Board is notified in writing by CSXT that it has developed, in consultation with EPA, Region 4: (a) measures approved by EPA to ensure safe salvage operations, and (b) any necessary remediation procedures, such as removing or capping portions of the right-of-way, that EPA and CSXT have agreed upon. 2. CSXT is directed to serve a copy of this decision on Clarke Milling within 5 days after the service date of this decision and to certify to the Board that it has done so. 3. Provided no OFA has been received, this exemption will be effective on July 12, 1998. 4. CSXT shall file a notice of consummation with the Board to signify that it has exercised the authority granted and fully abandoned the line. If consummation has not been effected by CSXT's filing of a notice of consummation by June 12, 1999, and there are no legal or regulatory barriers to consummation, the authority to abandon will automatically expire. Decided: June 11, 1998 Service Date - June 12, 1998 ----------------------------------------------------------------------- SURFACE TRANSPORTATION BOARD DECISION STB Docket No. AB-103 (Sub-No. 13X) THE KANSAS CITY SOUTHERN RAILWAY COMPANY--ABANDONMENT EXEMPTION--IN WEBSTER PARISH, LA The Kansas City Southern Railway Company (KCS) filed a notice of exemption to abandon a 1.70-mile line of its railroad between milepost 46.78 at the Arkansas-Louisiana State Line and milepost 48.48 approximately 200 feet south of Vine Street in Springhill, Webster Parish, LA. Notice of the exemption was published in the Federal Register on May 15, 1998. The exemption is scheduled to become effective on June 14, 1998. The Board's Section of Environmental Analysis (SEA) served an environmental assessment (EA) in this proceeding on May 22, 1998. In the EA, SEA states that the National Geodetic Survey (NGS) has identified six geodetic station markers that may be affected by the proposed abandonment. NGS requests that it be notified 90 days in advance of any activities that may disturb or destroy these markers to plan for their relocation. Therefore, SEA recommends that a condition be imposed requiring KCS to consult with the NGS and provide NGS with 90 days notice prior to disturbing or destroying any geodetic markers. On May 26, 1998, the City of Springhill, LA (City) filed a request for issuance of a notice of interim trail use (NITU) for the entire line under the National Trails System Act. The City submitted a statement indicating its willingness to assume full financial responsibility for the management of, for any legal liability arising out of the transfer or use of the right-of-way (unless user is immune from liability, in which case it need only indemnify the railroad against any potential liability), and for payment of taxes for the right-of-way, and acknowledged that the use of the right-of-way for trail purposes is subject to future reactivation for rail service. Also on May 26, 1998, KCS indicated its willingness to negotiate with the City over trail use/rail banking of the line. Because the City's request complies with the requirements and KCS is willing to enter into negotiations, a NITU will be issued. The parties may negotiate an agreement during the 180- day period prescribed below. If the parties reach a mutually acceptable final agreement, no further Board action is necessary. If no agreement is reached within 180 days, KCS may fully abandon the line. It is ordered: 1. This proceeding is reopened. 2. Upon reconsideration, the notice of exemption published in the Federal Register on May 15, 1998, exempting the abandonment of the line described above is modified to the extent necessary to implement interim trail use/rail banking as set forth below, for 180 days commencing June 14, 1998, the effective date of the exemption (until December 11, 1998), and subject to the condition that KCS consult with the NGS and provide NGS with 90 days notice prior to disturbing or destroying any geodetic markers. 3. If an interim trail use/rail banking agreement is reached, it must require the trail user to assume for the term of the agreement, full responsibility for management of, for any legal liability arising out of the transfer or use of (unless the user is immune from liability, in which case it need only indemnify the railroad against any potential liability), and for the payment of any and all taxes that may be levied or assessed against the right-of-way. 4. Interim trail use/rail banking is subject to the future restoration of rail service and to the user's continuing to meet the financial obligation for the right-of-way. 5. If interim trail use is implemented, and subsequently the user intends to terminate trail use, it must sent the Board a copy of this decision and notice and request that it be vacated on a specified date. 6. If any agreement for interim trail use/rail banking is reached by December 11, 1998, interim trail use may implemented. If no agreement is reached by that time, KCS may fully abandon the line. Decided: June 10, 1998 Service Date - June 12, 1998 ----------------------------------------------------------------------- SURFACE TRANSPORTATION BOARD ENVIRONMENTAL ASSESSMENT NO. AB-402 (SUB-NO. 5X) FOX VALLEY & WESTERN LTD. -- ABANDONMENT PETITION IN KEWAUNEE COUNTY, WISCONSIN In this proceeding, Fox Valley & Western Ltd. (FVW), a subsidiary of the Wisconsin Central Transportation Corporation, has filed a petition in connection with the abandonment of its railroad line between Milepost 18.9 in Luxemburg and Milepost 35.6 at the end of the line in Kewaunee, a distance of 16.7 miles in Kewaunee County, Wisconsin. In its application, FVW states that the only shipper on the line, Kewaunee Co-op, does not contest the proposed abandonment and is making arrangements to relocate to another rail line segment. FVW and the Wisconsin Department of Natural Resources (WDNR) have executed a Consent Order to remediate the Kewaunee Marsh arsenic contamination site. The stipulations of the Consent Order are on-going and FVW states that it will coordinate with WDNR to determine whether FVW is responsible for remedition at other contamination sites nearby. According to WDNR, FVW's commitment to leave the ballast undisturbed during salvage, in addition to the stiuplations of the Consent Order, is sufficient mitigation at this time. WDNR states that if the ballast is ever removed from the right-of-way, sampling will be required to define the degree and extent of any contamination and remediation will be required if necessary. The National Geodetic Survey (NGS) has informed us that 3 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 FVW. 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 - June 12, 1998 ----------------------------------------------------------------------- SURFACE TRANSPORTATION BOARD DECISION STB Docket No. AB-542X HARBOR BELT LINE RAILROAD--DISCONTINUANCE EXEMPTION-- PORT OF LOS ANGELES By petition filed February 19, 1998, Harbor Belt Line Railroad (HBL) seeks an exemption to discontinue its switching operations on tracks owned by the City of Los Angeles (the City) within the Port of Los Angeles (the Port), Los Angeles County, CA. The United Transportation Union seeks imposition of labor protective conditions. We will grant the exemption. HBL was created in 1928 by the City and the railroads then serving the Port to provide switching service within the Port. HBL is now controlled by the City, through its Board of Harbor Commissioners, and the railroads currently serving the Port, Union Pacific Railroad Company (UP) and The Burlington Northern and Santa Fe Railway Company (BNSF). This transaction is related to STB Finance Docket No. 33411 (STB served Dec. 2, 1997), in which Pacific Harbor Line, Inc. (PHL), filed a notice of exemption to acquire operating rights from the City to provide the switching services being discontinued here. Upon commencement of services by PHL, HBL will be replaced as the operator of the lines within the Port and will discontinue all operations. HBL states that in the summer of 1994 the relevant parties determined that operations within the Port would be better handled by a neutral third party provider. The increased prominence of intermodal unit trains and the emphasis on containerized traffic over the last 10 years changed the requirements for rail services within the Port. According to HBL, its organization and focus were no longer suitable for the kind of updated rail services required by the Port, the Port's tenants, and UP and BNSF, collectively, the railroads. Accordingly, in the fall of 1995, after an extensive competitive selection process, Anacostia & Pacific Company (A&P), located in Chicago, IL, was selected to become the operator within the Port. PHL is a wholly owned subsidiary of A&P and was specifically created to provide the services on behalf of A&P. Pursuant to an Operating Permit entered into between the City and PHL, dated December 1, 1997, PHL will perform the carload switching services currently provided by HBL within the Port and assume all existing HBL obligations. PHL will operate the tracks and other facilities currently used by HBL. It will supply its own locomotives as well as the financial and personnel resources necessary to meet the changing demands of the Port. (HBL had received its personnel resources, such as train crews, maintenance personnel and management personnel, from the railroads.) In addition, PHL will extend the hours of operation to 24 hours a day, 7 days a week and will also provide dispatching for all rail operations over the Port rail facilities. PHL will be responsible for the operation and maintenance of the track components of a moveable railbridge (Badger Avenue Bridge), as well as for performing certain other in-terminal maintenance operations. It will hire, train and supervise all persons necessary to perform its duties and obligations. Because all of HBL's service obligations will be assumed by PHL, and PHL will expand services to provide 24 hour, 7 day a week operations, we find that regulation is not necessary to protect shippers from an abuse of market power. We may not use our exemption authority to relieve a carrier of its statutory obligation to protect the interests of its employees. However, we do not normally impose employee protective conditions when a carrier discontinues service over its entire operation unless the evidence shows the existence of: (1) a corporate affiliate that will continue substantially similar rail operations; or (2) a corporate parent that will realize substantial financial benefits over and above relief from the burden of deficit operations by its subsidiary railroad. HBL proposes to discontinue service over its entire operation and go out of business. It does not appear to have any corporate affiliate or parent that could benefit from the proposed discontinuance of operations. Under the circumstances, we will not impose labor protective conditions in this case. It is ordered: 1. Under 49 U.S.C. 10502, we exempt from the prior approval requirements of 49 U.S.C. 10903 the discontinuance of service by HBL of its entire operations as described above. 2. Provided no OFA to subsidize continued rail service has been received, this exemption will be effective on July 12, 1998. Decided: June 9, 1998 Service Date - Late Release June 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 MATTER OF AN OFFER OF FINANCIAL ASSISTANCE Consolidated Rail Corporation (Conrail) filed a notice of exemption to abandon an 11.80- mile portion of the Blairsville Secondary Track between milepost 5.70+/- and milepost 17.50+/-, in Indiana County, PA. Notice of the exemption was served on March 12, 1998. The exemption was scheduled to become effective on April 11, 1998, but a formal expression of intent filed by Kovalchick Corporation (KOVC) to file an offer of financial assistance (OFA) to purchase the entire line automatically stayed the effective date of the exemption until April 21, 1998. KOVC simultaneously requested Conrail to provide it with financial data and information. On March 30, 1998, Conrail filed a request for a 60-day extension to permit it to develop and submit the required information. By decision served April 10, 1998, Conrail was directed to provide KOVC with the requested information and the deadline for KOVC to file its OFA was extended to June 10, 1998. The effective date of the exemption was further postponed until June 20, 1998. Also, the April 10, 1998 decision provided that the request by the Cambria and Indiana Trail Council for issuance of a notice of interim trail use under the National Trails System Act, and for a public use condition would be held in abeyance pending completion of the OFA process. On June 10, 1998, KOVC submitted an OFA to purchase the entire line in cash for $270,000. KOVC states that, according to Conrail, the estimated net liquidation value (NLV) of the line is $337,756. KOVC states that it is engaged in a number of businesses, including railroad equipment, coal mining equipment, and mill supply wholesale businesses, and that it has approximately 150 employees, located in offices and/or business facilities in the cities of Indiana, Lewiston, Josephine, and Lucerne, PA, and in Lima, OH. KOVC states that it has sufficient financial resources to meet its obligations under this OFA and that it is making an all-cash offer. KOVC also states that the Board has previously found it to be financially responsible. Based on the information provided, I find that KOVC is financially responsible. KOVC's offer is less than Conrail's estimated NLV. KOVC explains the disparity by asserting that its estimate is based on changed market conditions for the rail and track materials on the line, particularly with respect to unit prices for scrap rail and track materials, differing preliminary analysis of the condition and value of ties, and the exclusion of any NLV for ballast on the line. Because KOVC, a financially responsible entity, has offered financial assistance, the effective date of the exemption authorizing abandonment of the line will be postponed. It is ordered: 1. The effective date of the decision authorizing abandonment of the line is postponed in order to permit the OFA process under 49 U.S.C. 10904 and 49 CFR 1152.27 to proceed. 2. If Conrail and KOVC cannot agree on a purchase price of the line, either party may request the Board to establish the terms and conditions of the purchase price on or before July 10, 1998. If no agreement is reached and no request is submitted by that date, the Board will serve a decision vacating this decision, and issue a Decision and Notice of Interim Trail Use/or Abandonment effective on its service date. Decided: June 12, 1998 Service Date - June 15, 1998 ----------------------------------------------------------------------- SURFACE TRANSPORTATION BOARD DECISION AND NOTICE INTERIM TRAIL USE OR ABANDONMENT Docket No. AB-397 (Sub-No. 1X) TULARE VALLEY RAILROAD COMPANY--ABANDONMENT EXEMPTION--IN KINGS AND TULARE COUNTIES, CA STB Docket No. AB-397 (Sub-No. 4X) TULARE VALLEY RAILROAD COMPANY--ABANDONMENT-- EXEMPTION--IN TULARE COUNTY, CA In Docket No. AB-397 (Sub-No. 1X), by decision served March 24, 1994, the Interstate Commerce Commission granted Tulare Valley Railroad Company (TVR) an exemption to abandon 29.5 miles of rail line: (1) between milepost 0.3 at Corcoran and milepost 15.1 at Tulare, and (2) between milepost 23.8 at Visalia and milepost 38.5 at Cutler, in Kings and Tulare Counties, CA. The exemption became effective on April 23, 1994, subject to employee protective conditions. On May 3, 1994, a decision and notice of interim trail use or abandonment (NITU) was served that reopened the proceeding to implement interim trail use/rail banking and provided a 180-day period for TVR to negotiate an agreement with American Trails Association (ATA). On April 20, 1995, ATA notified the Board that an interim trail use/rail banking agreement had been timely reached. On April 22, 1997, ATA filed a request for partial vacation of the NITU served May 3, 1994. By decision served May 14, 1997, the NITU was modified and vacated with respect to the line segment between milepost 0.3 at Corcoran and milepost 12+5055 at the west side of Inyo Avenue in Tulare, in Kings and Tulare Counties, CA, a distance of 12 miles. In STB Docket No. AB-397 (Sub-No. 4X), TVR filed a notice of exemption to abandon approximately 5 miles of railroad from milepost 15.1 at Tulare, to milepost 20+1191.3 at Loma, in Tulare County, CA. A notice of the exemption was published in the Federal Register on August 20, 1996. On September 17, 1996, a decision and notice of interim trail use or abandonment (NITU) was served, which authorized a 180-day period for the City of Tulare (City), to negotiate an interim trail use/rail banking agreement with TVR for the right-of-way involved in this proceeding. The negotiation period expired on March 18, 1997. On March 26, 1997, a NITU was served, which authorized a 180-day period for ATA, as a new negotiation party, to negotiate an interim trail use/rail banking agreement with TVR for the 5-mile line of railroad. By decision served December 19, 1997, the proceedings were reopened and the decisions and notices of interim trail use served May 3, 1994, and March 26, 1997, were vacated as to the segment between milepost 12+5055 and milepost 17+3025, and the City was authorized to replace ATA as the new trail user over the involved right-of-way, effective on December 19, 1997. The NITU issued on March 26, 1997, in STB Docket No. AB-397 (Sub-No. 4X) evidently led to a trail use agreement between TVR and ATA that covered at least the segment between milepost 15.1 and milepost 17+3025 because the City's filing indicated that this segment has been in ATA's possession since April 1997. On January 28, 1998, ATA filed a notice of intent to terminate trail use for the right-of- way between milepost 38.5 at Cutler and milepost 27+4200 at Visalia, a distance of approximately 11 miles in Tulare County, CA, in Docket No. AB-397 (Sub-No. 1X), and between milepost 20+1191.3 near Loma and milepost 17+3025 in Tulare, a distance of approximately 3 miles in Tulare County, CA, in STB AB-397 (Sub-No. 4X). By decision served February 6, 1998, the proceedings were reopened and the decisions and notices of interim trail use served May 3, 1994, and March 26, 1997, were vacated with respect to the line segments between milepost 38.5 at Cutler and milepost 27+4200 at Visalia; and between milepost 20+1191.3 near Loma and milepost 17+3025 in Tulare, effective February 13, 1998, as requested. In a pleading filed April 22, 1998, the City requests that the Board: (1) partially vacate the decision and notice of interim trail use or abandonment served December 19, 1997, with respect to the line segment between a point located on the center line of I Street approximately 1,051.06 feet westerly of milepost 15 (railroad station 2847+57.16) in Docket No. AB-397 (Sub- No. 1X), and a point about 1,999.6 feet easterly of milepost 15 (railroad station 2817+06.5) in STB Docket No. AB-397 (Sub-No. 4X); and (2) modify the decision permitting the City to remain as trail user for the former TVR right-of-way between milepost 12+5055 (west side of Inyo Avenue in Tulare) and a point located on the center line of I Street approximately 1,051.06 feet westerly of milepost 15 (railroad station 2847+57.16) in Docket No. AB-397 (Sub- No. 1X), and between a point about 1,999.6 feet easterly of milepost 15 (railroad station 2817+06.5), and milepost 17+3025 (north side of Prosperity Avenue in Tulare) in STB Docket No. AB-397 (Sub-No. 4X), and permit the portion of the former TVR right-of-way traversing Pine Street to be fully abandoned. The City states that trail use for the portion of the Pine Street right-of-way does not conform with City purposes and is inconsistent with the City's proposed master plan for the development of the area. The City requests that partial vacation of the NITUs as to these line segments be made effective on or before June 15, 1998. The City has complied with the requirements of 49 CFR 1152.29(d)(2) regarding a request to vacate the NITU and for modification. Under the circumstances, TVR may fully abandon the line between a point located on the center line of I Street approximately 1,051.06 feet westerly of milepost 15 (railroad station 2847+57.16) and a point about 1,999.6 feet easterly of milepost 15 (railroad station 2817+06.5). It is ordered: 1. This proceeding is reopened. 2. The decision and notice of interim trail use served December 19, 1997, is vacated with respect to the line segment between a point located on the center line of I Street approximately 1,051.06 feet westerly of milepost 15 (railroad station 2847+57.16), and a point about 1,999.6 feet easterly of milepost 15 (railroad station 2817+06.5), and the City will remain as the trail user for the line segments between milepost 12+5055 (west side of Inyo Avenue in Tulare), and a point located on the center line of I Street approximately 1,051.06 feet westerly of milepost 15 (railroad station 2847+57.16) and between a point about 1,999.6 feet easterly of milepost 15 (railroad station 2817+06.5 and milepost 17+3025 (north side of Prosperity Avenue in Tulare, CA) and TVR may fully abandon the segment for which the NITU has been vacated. Decided: June 10, 1998 Service Date - June 15, 1998 ============================================================ Comments or questions about this compilation should be directed to Paul Moore at 71367.1057@Compuserve.com. ============================================================