Solid Waste Rail Transfer Facilities, 69769-69780 [2012-28196]

Agencies

• Surface Transportation Board
• DEPARTMENT OF TRANSPORTATION

[Federal Register Volume 77, Number 225 (Wednesday, November 21, 2012)]
[Rules and Regulations]
[Pages 69769-69780]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2012-28196]


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DEPARTMENT OF TRANSPORTATION

Surface Transportation Board

49 CFR Part 1155

[Docket No. EP 684]


Solid Waste Rail Transfer Facilities

AGENCY: Surface Transportation Board, DOT.

ACTION: Final rules.

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SUMMARY: These final rules govern land-use-exemption permits for solid 
waste rail transfer facilities. The Clean Railroads Act of 2008 amended 
the U.S. Code to restrict the jurisdiction of the Surface 
Transportation Board over solid waste rail transfer facilities. The Act 
also added three new statutory provisions that address the Board's 
regulation of such facilities, which is now limited to issuance of 
``land-use-exemption permits'' in certain circumstances. In 2009, as 
required by the Act, the Board issued interim rules. In 2011, based on 
the comments received and further evaluation, the Board revised the 
2009 Rules and sought comments on the changes. After further evaluation 
and review of the comments received on the 2011 Rules, the Board now 
adopts the 2011 Rules as final rules with minor modification.

DATES: These rules will be effective on December 21, 2012.

FOR FURTHER INFORMATION CONTACT: Lucille Marvin, The Office of Public 
Assistance, Governmental Affairs, and Compliance, (202) 245-0238. 
Assistance for the hearing impaired is available through the Federal 
Information Relay Service (FIRS) at (800) 877-8339.

SUPPLEMENTARY INFORMATION: The Clean Railroads Act of 2008, Public Law 
110-432, 122 Stat. 4848, (CRA) amended 49 U.S.C. 10501(c)(2) to 
restrict the jurisdiction of the Surface Transportation Board (Board or 
STB) over solid waste rail transfer facilities. The CRA also added 
three new statutory provisions--49 U.S.C. 10908-10910--that address the 
Board's regulation of such facilities, which is now limited to issuance 
of ``land-use-exemption permits'' in certain circumstances. Under the 
CRA, a solid waste rail transfer facility must comply with all 
applicable federal and state requirements respecting the prevention and 
abatement of pollution, the protection and restoration of the 
environment, and the protection of public health and safety, in the 
same manner as any similar solid waste management facility not owned or 
operated by or on behalf of a rail carrier, except for laws affecting 
the siting of the facility that are covered by the land-use-exemption 
permit. As required by the CRA, the Board issued interim rules in a 
decision served January 14, 2009. Solid Waste Rail Transfer Facilities 
(2009 Decision), EP 684 (STB served Jan. 14, 2009). Those interim rules 
were published in the Federal Register on January 27, 2009 (74 FR 4714) 
(2009 Rules). Based on the comments received and further evaluation, 
the Board served a decision on March 11, 2011, which revised the 2009 
Rules and sought comments on the changes. Solid Waste Rail Transfer 
Facilities (2011 Decision), EP 684 (STB served Mar. 11, 2011). The 
revised interim rules were published in the Federal Register on March 
24, 2011 (76 FR 16538) (2011 Rules). After further evaluation and 
review of the comments received on the 2011 Rules, the Board now adopts 
the 2011 Rules as final rules with minor modifications. The final rules 
are set forth below.
    Under 49 U.S.C. 10501(a), the Board has jurisdiction over 
``transportation by rail carrier.'' Section 10501(b), as modified by 
the ICC Termination Act of 1995 (ICCTA), Public Law 104-88, 109 Stat. 
803 (1995), provides that both ``[t]he jurisdiction of the Board over 
transportation by rail carriers'' (which includes the carriers' rail 
facilities, see 49 U.S.C. 10102(9)), and ``the remedies provided under 
[49 U.S.C. 10101-11908]'' are ``exclusive,'' and ``preempt the remedies 
provided under Federal or State law.'' Prior to enactment of the CRA, 
the Board's preemptive jurisdiction extended to solid waste rail 
transfer facilities owned or operated by rail carriers. Accordingly, 
state permitting or preclearance requirements (including environmental, 
zoning, and often land-use requirements) that, by their nature, could 
be used to deny a railroad the right to conduct its operations or 
proceed with transportation activities at rail transfer facilities, 
including solid waste rail transfer facilities, as authorized by the 
Board, were preempted. See 49 U.S.C. 10501(b); N.Y. Susquehanna & W. 
Ry. v. Jackson, 500 F.3d 238, 252-55 (3d Cir. 2007); Green Mountain 
R.R. v. Vermont, 404 F.3d 638, 641-43 (2d Cir. 2005). Other state 
actions related to these facilities were preempted if, as applied, they 
would have the effect of unreasonably burdening or interfering with 
transportation by rail carrier. See N.Y. Susquehanna, 500 F.3d at 252; 
Green Mountain, 404 F.3d at 643.
    The CRA modified the Board's jurisdiction over solid waste rail 
transfer facilities. The CRA provides that solid waste rail transfer 
facilities, as defined in 49 U.S.C. 10908(e)(1)(H), must now

[[Page 69770]]

comply with all applicable Federal and state requirements (including 
environmental requirements) that apply to similar solid waste 
management facilities that are not owned or operated by or on behalf of 
a rail carrier, except as otherwise provided in the CRA.\1\ The CRA 
gives the Board the authority, if petitioned, to issue land-use-
exemption permits that preempt state and local laws and regulations 
``affecting the siting'' of such facilities (except to the extent that 
the Board requires the facility to comply with such provisions). 49 
U.S.C. 10909(f).\2\
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    \1\ The CRA does not affect the Board's jurisdiction, or the 
scope of Federal preemption, over a rail carrier's transportation-
related activities involving commodities other than solid waste. 49 
U.S.C. 10908(d).
    \2\ The 2009 Decision and the 2011 Decision contain further 
discussion of the CRA and the Board's initial and subsequent 
implementation of the legislation.
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The Final Rules

    The Board received comments on the 2011 Rules.\3\ We now adopt 
final rules based on suggestions made in the parties' comments and on 
the Board's review of the revised interim regulations. We address the 
comments received on the 2011 Rules and our revisions made in response 
to the comments below. The final rules are in full below.
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    \3\ The Board received comments and replies from the following: 
Connecticut Department of Environmental Protection (CTEP); National 
Solid Wastes Management Association, et al. (NSWMA); Association of 
American Railroads (AAR); Atlantic County Utilities Authority 
(ACUA); New Jersey Department of Environmental Protection and New 
Jersey Meadowlands Commission (collectively, NJDEP); and the 
Township of Bensalem, Bucks County, Pennsylvania (Bensalem). 
Additionally, after the deadline for initial comments, the Board 
received comments from the Rhode Island Resource Recovery 
Corporation (RIRRC). As no party would be prejudiced, we will accept 
this late filing.
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A. Environmental Impact Statement (EIS) Notice

    In the 2011 Decision, slip op. at 7-8, the Board concluded that an 
EIS generally should be prepared for each land-use-exemption-permit 
application. NSWMA argues that, consequently, the Board should add 
separate environmental notice procedures to the CRA rules to allow for 
full public participation during the early stages of the Board's 
environmental review, including ``scoping''--the process that 
determines the issues to be addressed in an EIS.\4\ NSWMA points out 
that 49 CFR 1105.10(a) of the Board's environmental rules requires an 
applicant for a Board action that warrants an EIS to give the Board's 
Office of Environmental Analysis (OEA) six months' notice prior to 
filing its application, but does not require the applicant to serve the 
notice on affected state and local agencies or otherwise publish it.\5\ 
NSWMA is concerned that, unless state and local officials are served 
with the Sec.  1105.10(a) notice when it is filed at the Board, these 
public officials will lose the opportunity to participate meaningfully 
in ``key EIS scoping proceedings'' for projects seeking land-use-
exemption permits.\6\ NSWMA contrasts the absence of advance 
environmental notice in the interim and revised interim CRA rules with 
the advance notice that the Board requires for applications for a land-
use-exemption permit.\7\
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    \4\ NSWMA's Comments 2-4; CTEP's Comments 1 (adopting NSWMA's 
comments).
    \5\ We note that the 6-month prefiling requirement that NSWMA 
relies on is frequently waived. See 49 CFR 1105.10(c)(2); see, e.g., 
Tongue River R.R.--Rail Construction & Operation--In Custer, Powder 
River & Rosebud Cntys., Mont., FD 30186, letter from Victoria 
Rutson, Director, Office of Environmental Analysis (Oct. 18, 2012); 
R.J. Corman R.R.--Construction & Operation Exemption--In Clearfield 
Cnty., Pa., FD 35116, letter from Victoria Rutson, Director, Office 
of Environmental Analysis (Jan. 24, 2008). As a practical matter, 
many applicants do not have their projects adequately developed to 
allow the environmental review to begin months in advance of the 
filing of an application.
    \6\ NSWMA's Comments 3.
    \7\ Pursuant to 49 CFR 1155.20(a)(2) and 1155.22(b) of the 2011 
Rules, the Notice of Intent and Application must each be served on 
the governor, municipality, state, and any relevant Federal or state 
regional planning entity where the facility is located. The Notice 
of Intent must also be published at least once during each of three 
consecutive weeks in a newspaper of general circulation in the 
county in which the facility is located. 49 CFR 1155.20(a)(2).
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    We reject NSWMA's assertion that the Board's procedures do not give 
regional, state or local officials a meaningful opportunity to 
participate at the early stages of the EIS process and that additional 
notice is necessary. The Board's existing procedures provide that 
consultation letters are sent by the Board to potentially interested or 
affected Federal, state, and local agencies, soliciting their comments 
on possible environmental impacts, prior to publication of a Notice of 
Intent to Prepare an EIS. See Policy Statement on Use of Third-Party 
Contracting in Preparation of Envtl. Documentation, 5 S.T.B. 467 
(2001); see also 40 CFR 1501.2(d)(2). Thus, the Board's existing 
procedures give public officials the opportunity for early input into 
the process of developing the scope of the Draft EIS. But the 
opportunity for early participation in the environmental review process 
does not stop there. The Notice of Intent to Prepare an EIS, which 
includes a description of the proposed action and provides a period for 
written comments on the draft scope of the EIS, is then published in 
the Federal Register and served. 49 CFR 1105.10(a)(2). The scoping 
process also typically includes a meeting in the project area that 
gives state and local officials and members of the public an 
opportunity to be heard. The Board issues a final scope of study for 
the EIS only after considering the scoping comments.\8\ Therefore, we 
find that no additional notice is necessary.
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    \8\ Opportunities for public input on environmental issues 
continue throughout the duration of the proceeding. Following 
scoping, the Board prepares a Draft EIS, which is made available for 
review and comment by the public, government agencies, and other 
interested parties (typically for 45 days). Thereafter, a Final EIS 
is issued that considers comments on the Draft EIS, sets forth any 
additional analyses, and makes final environmental recommendations 
for the Board to consider in reaching its final decision. Finally, 
our CRA procedures specifically allow for final public comments 
following the conclusion of the environmental review on how the 
information developed during the environmental review should be 
weighed with transportation and other concerns. 49 CFR 1155.23(b).
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    NSWMA also is concerned that state and local officials and the 
public will not receive notice of requests submitted by applicants to 
OEA seeking to reclassify the requirement that an EIS be prepared in 
particular cases under 49 CFR 1155.24(a) \9\ and 1105.6(d) because such 
requests are not published in the Federal Register.\10\ We do not 
believe that Federal Register publication is necessary. Section 
1105.6(d) of the Code of Federal Regulations has been in effect since 
1991. See Implementation of Envtl. Laws, EP 55 (Sub-No. 22A) (ICC 
served July 31, 1991); 56 FR 36104 (July 31, 1991). In recent years, 
OEA has received a number of reclassification requests. For example, 
rail construction cases normally require preparation of an EIS. 
Nevertheless, in certain rail construction cases where there is little 
potential for significant environmental impacts, applicants have 
requested that OEA reclassify the level of environmental review to 
allow for the preparation of a more limited Environmental Assessment 
rather than an EIS. Until now, however, we have not received any 
suggestions that

[[Page 69771]]

Federal Register publication is needed to provide adequate notice of a 
request to reclassify the level of environmental review for a proposed 
action.
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    \9\ We note that, contrary to AAR's assertion in its reply 
brief, a written request to reclassify pursuant to Sec. Sec.  
1155.24(a) and 1105.6(d) is distinct from a petition for waiver 
pursuant to Sec.  1155.22(d)(4). (See AAR's Reply Comments 9 n.5.) A 
petition for waiver of regulations pertaining to applications for 
land-use-exemption permits must be issued by the Director of the 
Office of Proceedings. 49 CFR 1155.22(d)(4). Requests to reclassify 
the environmental review requirements must be decided by the 
Director of OEA. 49 CFR 1155.24(a) (``OEA may reclassify the 
environmental review requirements * * *, pursuant to 49 CFR 
1105.6(d).''); 49 CFR 1105.2 (``The [Director] of [OEA] * * * is 
delegated the authority * * * to render initial decisions on 
requests for waiver or modification of any of these rules for 
individual proceedings * * * .'').
    \10\ NSWMA's Comments 3.
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    Our CRA rules are designed to give interested state and local 
officials and the public the ability to protect their interest in 
having the Board conduct an appropriate level of environmental review 
of applications for land use exemption permits. Sections 1155.20(a)(2) 
and 1155.22(b) will provide for notice to agencies and interested 
persons in the project area that an application for a particular land 
use exemption permit is to be filed. Once a case is docketed at the 
Board, interested persons and agencies can keep track of the status of 
the case, including requests to reclassify the level of environmental 
review and any responses, by checking the Board's Web site. Moreover, 
state and local environmental officials are likely to have advance 
notice of proposed solid waste rail transfer facilities because these 
facilities would have to comply with the same applicable Federal and 
state requirements as non-rail solid waste management facilities, 
except for laws affecting siting that are covered by the application 
for a land-use-exemption permit. Finally, even if a request for 
reclassification of the EIS requirement is granted, state and local 
officials and the public have numerous opportunities during the 
environmental review process to argue to the Board that the 
environmental impacts of the project will be significant enough to 
require the preparation of an EIS. See supra n.8. When information 
emerges during the environmental review process to indicate that a 
proposed action could result in potentially significant environmental 
impacts, the Board will heighten the level of environmental review as 
appropriate. See Norfolk S. Ry.--Joint Control & Operating/Pooling 
Agreements--Pan Am S., LLC, FD 35147 et al., slip op. at 2-3 (STB 
served Sept. 25, 2008) (suspending procedural schedule to prepare an 
Environmental Assessment in case where it had been originally 
determined that no environmental review was necessary).

B. EIS Requirements

    NJDEP argues that 49 CFR 1155.21(c) does not reflect the Board's 
determination in 49 CFR 1155.24(a) that an EIS generally should be 
prepared for each land-use-exemption-permit application.\11\ Section 
1155.21(c) states that an ``applicant shall certify that it has 
submitted an Environmental and/or Historic Report * * * if an 
Environmental and/or Historic Report is required.'' 49 CFR 
1155.21(c).\12\ NJDEP asks that the Board remove the clause ``if an 
Environmental and/or Historic Report is required'' from this section.
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    \11\ NJDEP's Comments 3.
    \12\ We have made minor editorial changes to the 2011 Rules, 
including capitalizing ``Environmental Report'' and ``Historic 
Report'' consistently throughout.
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    It would be inappropriate to grant NJDEP's request. As the Board 
specifically stated in the 2011 Decision, slip op. at 25-26 (citing 49 
CFR 1105.10(d)), applicants need not file Environmental and/or Historic 
Reports describing the potential environmental impacts of their 
proposals if third-party contractors are used to assist the 
environmental staff in preparing the Board's environmental 
documentation, which generally will be an EIS. Thus, the 2011 Rules 
properly made clear that, even when a third-party contractor is used 
and Environmental and/or Historic Reports are not required from the 
applicant, the Board can still prepare an EIS.
    NJDEP also argues that the clause in Sec.  1155.21(c) stating ``if 
an Environmental and/or Historic Report is required'' conflicts with 49 
CFR 1155.20(c). The latter section states that ``[a]pplicant must also 
submit an Environmental and/or Historic Report containing the 
information described at 49 CFR 1155.[24](b),\13\ 1105.7, and 1105.8, 
to the extent applicable, at least 45 days prior to filing an 
application.'' \14\ Although Sec.  1155.20(c) does not include the 
language ``if an Environmental and/or Historic Report is required,'' it 
does specifically acknowledge later in that section that the 
``reporting requirements that would otherwise apply are waived * * * if 
the applicant or the Board hires a third-party consultant.'' Thus, 
there is no conflict between the two sections. Nevertheless, for 
clarity, we will add a reference in Sec.  1155.21(c) to Sec.  
1155.20(c).
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    \13\ The 2011 Rules inadvertently cited to 49 CFR 1155.25(b) 
rather than 49 CFR 1155.24(b). We have revised the final rules to 
cite the correct regulation. See infra note 31 and accompanying 
text.
    \14\ In response to several comments on the 2009 Rules, the 
Board noted in the 2011 Decision that, although 49 CFR 1105.7 does 
not address issues specific to solid waste management, much of the 
information in the environmental reporting rules does apply to solid 
waste rail transfer facilities. Thus, the Board concluded that it 
would ``continue to require applicants to comply with the 
environmental reporting requirements in 49 CFR 1105.7 to the extent 
applicable.'' 2011 Decision, slip op. at 25. Several provisions of 
these rules also contain the proviso that Environmental Reports 
should contain the information described at Sec.  1105.7, to the 
extent applicable. 49 CFR 1155.20(c), 1155.24(b). We have revised 
Sec.  1155.21(c) to add ``to the extent applicable'' to comport with 
Sec.  1155.20(c), Sec.  1155.24(b) and our discussion in the 2011 
Decision.
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C. Interpretation of 49 U.S.C. 10910

    In the 2011 Decision, the Board added a procedural requirement that 
applicants and interested parties state whether the law affecting 
siting from which exemption is sought is an environmental, public 
health, or public safety standard that falls under the traditional 
police powers of the state, and if not, to explain why not. 2011 
Decision, slip op. at 5; 49 CFR 1155.21(a)(7). The Board reasoned that 
this information was necessary because of 49 U.S.C. 10910 and the 
Board's standard for review in revised 49 CFR 1155.26(b)(6),\15\ and 
stated that, if a law affecting siting is covered by 49 U.S.C. 10910, 
the Board will not issue a land-use-exemption permit unless the 
applicant has shown that compliance with that law meets the 
unreasonable burden or discrimination test. 2011 Decision, slip op. at 
5
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    \15\ Section 1155.26(b)(6) of the 2011 Rules, which was also 
located in the Board's 2009 Rules at 49 CFR 1155.27(b)(4), states 
that ``[a] land-use-exemption permit will not exempt a state 
requirement that a rail carrier comply with an environmental, public 
health, or public safety standard that falls under the traditional 
police powers of the state unless the requirement is unreasonably 
burdensome to interstate commerce or discriminates against rail 
carriers.''
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    The procedural requirement in Sec.  1155.21(a)(7), and the Board's 
substantive standard of review found at Sec.  1155.26(b)(6), were based 
on the Board's interpretation of Sec.  10910, which provides that 
``[n]othing in section 10908 or 10909 is intended to affect the 
traditional police powers of the State to require a rail carrier to 
comply with State and local environmental, public health, and public 
safety standards that are not unreasonably burdensome and do not 
discriminate against rail carriers.'' When the 2009 Rules and 2011 
Rules were issued, the Board read Sec.  10910 as confirming judicial 
and Board precedent establishing that, notwithstanding the express 
Federal preemption in 49 U.S.C. 10501(b), state and local bodies 
nonetheless retain police powers to protect the public health and 
safety, so long as the state and local regulations do not serve to 
regulate railroad operations or unreasonably interfere with interstate 
commerce. E.g., N.Y. Susquehanna, 500 F.3d at 252-55; Green Mountain, 
404 F.3d at 643. Consistent with this precedent, the Board, 
notwithstanding the separate express preemption provisions of Sec.  
10909, interpreted the CRA as preserving the state's historic police 
powers to protect public health and safety where the law in question 
does not unreasonably burden interstate

[[Page 69772]]

commerce or discriminate against rail transportation.
    AAR, however, argues that the Board misinterpreted 49 U.S.C. 10910 
and that the Board can issue a land-use-exemption permit under section 
10909 even if the law affecting siting falls under the state's 
traditional police powers and the requirement does not unreasonably 
burden interstate commerce or discriminate against rail carriers.\16\ 
AAR points to the balancing of interests contemplated by section 
10909(c) and (d), which, it claims, suggests that no single factor, 
such as the absence of an undue burden on interstate commerce, requires 
denial of a land-use-exemption permit. It further argues that section 
10909(f) provides the Board with express authority to preempt ``all'' 
state laws affecting siting of a solid waste rail transfer facility, 
including those that might otherwise fall under the traditional police 
powers of the state. Arguing that the specific provisions of Sec.  
10909 dictate the proper interpretation of section 10910, AAR believes 
that section 10910 should be read to state that ``[Other than with 
respect to state laws and requirements affecting siting, n]othing in 
section 10908 or 10909 is intended to affect the traditional police 
powers of the State to require a rail carrier to comply with State and 
local environmental, public health, and public safety standards that 
are not unreasonably burdensome and do not discriminate against rail 
carriers.'' \17\
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    \16\ AAR also claims that our interpretation of section 10910 in 
the 2011 Decision conflicts with our interpretation of that section 
in the 2009 Decision. (AAR's Comments 4.) Given our decision here, 
there is no need to address this argument.
    \17\ AAR's Comments 6 n.5, 20 n.12.
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    We find that both AAR's interpretation of section 10910 and the one 
originally adopted by the Board are plausible readings of the statute. 
The statute is ambiguous, and the Board has struggled to interpret a 
number of its provisions, including section 10910. At this juncture, 
however, we need not resolve the statutory ambiguity by definitively 
choosing one interpretation of section 10910 over the other. We do not 
need to interpret section 10910 definitively in order to effectively 
carry out the intent of Congress in the CRA. As AAR acknowledges, the 
Board has the discretion not to preempt a law affecting siting.\18\ 
Therefore, the difficult question regarding the preemptive effect of 
section 10910 would only arise in the event that an applicant for a 
land-use-exemption permit were to make a persuasive case that the Board 
should preempt a law affecting siting promulgated under the state's 
traditional police powers that does not impose an unreasonable burden 
on interstate commerce and was not being used to discriminate against a 
rail carrier. We cannot predict whether this scenario will come before 
the Board. Should the situation described above arise in the future, 
the Board will, as appropriate, examine the meaning of section 10910 in 
the context of that specific factual dispute and the particular state 
law in question. Accordingly, we will remove interim rule Sec.  
1155.26(b)(6) from our final rules.\19\
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    \18\ AAR's Comments 6 n.5 (citing 49 U.S.C. 10909(f) (``An 
exemption may require compliance with such State laws, regulations, 
orders, or other requirements.'')).
    \19\ Former Sec.  1155.26(b)(7) is now renumbered as Sec.  
1155.26(b)(6) in the final rules.
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    With respect to the procedural requirement in Sec.  1155.21(a)(7) 
of our interim rules, the information requested in that rule would 
assist the Board in deciding whether to issue a land-use-exemption 
permit. The CRA specifically permits the Board to ``consider and give 
due weight to'' six enumerated factors, as well as ``any other relevant 
factors, as determined by the Board.'' 49 U.S.C. 10909(d). Although AAR 
disagreed with the statutory interpretation of section 10910 in the 
2011 Decision, it did not specifically object to the imposition of a 
procedural requirement requesting information on whether the law from 
which exemption is sought is a public health or safety standard that 
falls under the traditional police powers of the state. In fact, AAR 
acknowledged that the extent of the burden placed on interstate 
commerce, and whether the law discriminates against rail carriers, are 
factors in deciding whether to issue a preemptive land-use-exemption 
permit.\20\ We will thus continue to require the information requested 
in 49 CFR 1155.21(a)(7).
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    \20\ AAR's Comments 14-15.
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D. Effect of Land-Use-Exemption Permit

    NJDEP believes that 49 CFR 1155.26(d) of the 2011 Rules does not 
reflect the Board's intent. Specifically, NJDEP points to the Board's 
statement in the 2011 Decision that ``[u]ltimately, a land-use-
exemption permit would only exempt a facility from complying with laws, 
regulations, and orders affecting the siting that are specified in the 
permit. The Board will require the applicant to comply with all other 
laws, regulations, orders, or other requirements affecting the siting 
of a facility.'' 2011 Decision, slip op. at 5. NJDEP argues that this 
statement conflicts with Sec.  1155.26(d) of our 2011 Rules, which 
states in relevant part that ``a Board-issued land-use-exemption permit 
will require compliance with such state laws, regulations, orders, or 
other requirements not otherwise expressly exempted in the permit 
unless the Board determines otherwise.'' 49 CFR 1155.26(d). NJDEP 
believes that the qualifier at the end of this section should be 
removed. We agree that the language of this section does not reflect 
the fact that a land-use-exemption permit will exempt only those laws 
specified in the permit, and will reword that section in order to 
clarify the effect of a permit. Section 1155.26(d) will now state as 
follows: ``If the Board grants a land-use-exemption permit for a solid 
waste rail transfer facility, such permit would only exempt a facility 
from complying with state laws, regulations, orders, or other 
requirements affecting the siting of a facility that are specified 
therein. The permit will require compliance with all other state laws, 
regulations, orders, or other requirements not otherwise expressly 
exempted in the permit.''

E. The Process To Come Before the Board

    CTEP and NSWMA request that the Board require, as a prerequisite, 
that an applicant seek state or local approval under the challenged 
laws and rules before they can be included on the list to be preempted 
under 49 CFR 1155.21(7), unless it is ineffective or demonstrably 
futile to do so.\21\ This request was also adopted by ACUA, Bensalem, 
and RIRRC.\22\
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    \21\ CTEP's Comments 1; NSWMA's Comments 4.
    \22\ ACUA's Comments 1; Bensalem's Comments 1; RIRRC's Comments 
1.
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    As the Board previously explained in the 2011 Decision, slip op. at 
10, this suggestion conflicts with the language of the CRA, which 
explains that a rail carrier that owns or operates a facility may come 
before the Board prior to seeking a siting determination from the 
state. See 49 U.S.C. 10909(a)(1). Thus, we will not adopt the proposed 
change.

F. Definition of ``State Requirements''

    ACUA notes that, pursuant to 49 CFR 1155.2(e), ``[s]tate 
requirements * * * does not include the laws, regulations, ordinances, 
orders, or other requirements of a political subdivision of a state, 
including a locality or municipality, unless a state expressly 
delegates such authority to such political subdivision.'' \23\ ACUA 
states that ``it should be noted that in New Jersey, and perhaps other 
states, delegation of state authority may be to

[[Page 69773]]

an entity other than a `locality or municipality' and that a utility 
authority may * * * constitute a political subdivision.'' \24\ Section 
1155.2(e) mirrors the language of 49 U.S.C. 10908(e)(3), the plain 
language of which indicates that a political subdivision of a state 
includes a locality or municipality, but may also include other 
entities. We will continue to follow the language of the statute.
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    \23\ ACUA's Comments 1.
    \24\ ACUA's Comments 1.
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    ACUA also states that ``entities such as County Utilities 
Authorities in New Jersey which have been designated as the 
implementation agency for the State Solid Waste Management Plan should 
be entitled to notice at each level of the process.'' \25\ In response 
to the comment, we will broaden the list of entities that are required 
to receive service of applications for land-use-exemption permits and 
related Notices of Intent to include any agency designated as the 
implementation agency for the solid waste management plan of the state 
in which the solid waste rail transfer facility is located or proposed 
to be located. We have adjusted 49 CFR 1155.20(a)(2)(ii), 1155.22(b), 
1155.22(d)(4), 1155.25(a), and 1155.25(b) accordingly.
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    \25\ ACUA's Comments 1.
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G. Other Comments

    AAR suggests that we add language to 49 CFR 1155.2(a)(10)(ii)(B). 
Specifically, AAR argues that instead of stating ``a facility where 
solid waste is transferred or transloaded solely from a tank truck 
directly to a rail tank car,'', that section should read ``to or from a 
tank truck directly to a rail tank car,''.\26\ The language of that 
section, however, mirrors the language of 49 U.S.C. 
10908(e)(1)(H)(ii)(II).\27\ We will continue to follow the language of 
the statute.
---------------------------------------------------------------------------

    \26\ AAR's Comments 20.
    \27\ Section 1155.2(a)(10)(ii)(B) of the 2011 Rules erroneously 
quoted the CRA with respect to the word ``solely.'' We are 
correcting that here so that the final rule mirrors the CRA.
---------------------------------------------------------------------------

    AAR also proposes that we modify the language of 49 CFR 1155.20(a) 
and 1155.22(a) so that an applicant need not file a Notice of Intent if 
it is required to submit an application due to a governor's petition 
pursuant to 49 CFR 1155.13. AAR argues that the petition would provide 
sufficient notice of intent.\28\ As such, AAR requests that the Board 
revise the language of Sec.  1155.20(a) to ``Except where an 
application is required by Subpart B, [a]n applicant * * * shall give 
its Notice of Intent to file a land-use-exemption-permit application by 
complying with the following procedures * * * .'' Similarly, AAR 
requests that the Board revise the language of Sec.  1155.22(a) to 
``Except where an application is required by Subpart B, [t]he applicant 
shall tender with its application an affidavit attesting to its 
compliance with the notice requirements of 49 CFR 1155.20.'' We decline 
to adopt AAR's proposed changes. We believe that all applicants, 
including those who are required to file an application pursuant to a 
governor's petition, should comply with the application procedures, 
including the Notice of Intent provisions, provided in Subpart C. A 
Notice of Intent under Subpart C provides broader notice than a 
petition under Subpart B,\29\ and it also serves to notify the Board 
and all parties that the application process is commencing.
---------------------------------------------------------------------------

    \28\ AAR's Comments 20.
    \29\ Under Subpart C, 49 CFR 1155.20 provides that an applicant 
shall serve its Notice of Intent on the Board; the governor of the 
state where the facility is located; the municipality, state, and 
any relevant political subdivision of a state or federal or state 
regional planning entity in the jurisdiction of which the facility 
is located; and the appropriate managing government agencies 
responsible for the groups of land listed in 49 U.S.C. 10909(c)(2). 
Additionally, the applicant must publish its Notice of Intent at 
least once during each of three consecutive weeks in a newspaper of 
general circulation in each county in which any part of the facility 
is located. By contrast, under Subpart B, 49 CFR 1155.11 provides 
that a petition filed by the governor be filed with the Board; 
served on the rail carrier that owns or operates the facility; and 
served on the facility, if its address is different than that of the 
rail carrier's.
---------------------------------------------------------------------------

    AAR also notes that the schedule in 49 CFR 1155.26(a)(2) omits the 
deadlines for the Notice of Intent.\30\ We will add language to Sec.  
1155.26(a)(2) to account for the deadlines for the Notice of Intent.
---------------------------------------------------------------------------

    \30\ AAR's Comments 21.
---------------------------------------------------------------------------

    Both AAR and NJDEP accurately note that certain references in the 
revised interim rules to 49 CFR 1155.25 are in error.\31\ Section 
1155.21(c) should read ``[t]he applicant shall certify that it has 
submitted an Environmental and/or Historic Report containing the 
information in 49 CFR 1155.24(b), 1105.7, and 1105.8 * * * .'' 
Similarly, the first sentence of Sec.  1155.20(c) has been revised to 
read ``[a]pplicant must also submit an Environmental and/or Historic 
Report containing the information described at 49 CFR 1155.24(b), 
1105.7, and 1105.8 * * * .'' Finally, the citation at the end of Sec.  
1155.20(c) has been changed to 49 CFR 1155.24(c).
---------------------------------------------------------------------------

    \31\ AAR's Comments 20; NJDEP's Comments 4.
---------------------------------------------------------------------------

    ACUA poses a question regarding 49 CFR 1155.12(b), which pertains 
to facilities which were in existence on October 16, 2008, but have 
since ceased operations. Assuming a facility can prove it was operating 
as a solid waste rail transfer facility on October 16, 2008, and has 
since ceased operations, ACUA wonders whether Sec.  1155.12(b) would 
render the facility, should it seek to restore operations, subject to 
review as a proposed facility. ACUA also asks under what circumstances, 
if any, a facility which ``no longer operates as such'' may allege 
continuous operations to maintain its exemption. We will not address 
those issues in this proceeding because the answers would depend on the 
factual circumstances of the particular case.

Paperwork Reduction, Regulatory Flexibility, and Environmental 
Certifications

    In the 2011 Decision, published in the Federal Register at 76 FR 
16538 on March 24, 2011, the Board sought comments pursuant to the 
Paperwork Reduction Act (PRA), 44 U.S.C. 3501-3549, and Office of 
Management and Budget (OMB) regulations at 5 CFR 1320.11, regarding: 
(1) Whether the collection of information associated with the land-use-
exemption permit application is necessary for the proper performance of 
the functions of the Board, including whether the collection has 
practical utility; (2) the accuracy of the Board's burden estimates; 
(3) ways to enhance the quality, utility, and clarity of the 
information collected; and (4) ways to minimize the burden of the 
collection of information on the respondents, including the use of 
automated collection techniques or other forms of information 
technology, when appropriate. No comments related to these questions 
were received.
    The proposed rules were submitted to OMB for review as required 
under the PRA, 44 U.S.C. 3507(d), and 5 CFR 1320.11. No comments were 
received from OMB, which approved the collection, titled ``Applications 
for Land-Use-Exemption Permits,'' and assigned it Control No. 2140-
0018. Unless renewed, OMB approval expires June 30, 2014. The display 
of a currently valid OMB control number for this collection is required 
by law. Under the PRA and 5 CFR 1320.11, an agency may not conduct or 
sponsor, and a person is not required to respond to, a collection of 
information unless the collection displays a currently valid OMB 
control number.
    In accordance with the Regulatory Flexibility Act at 5 U.S.C. 
605(b), we certify that the final rules will not have a significant 
economic impact on a substantial number of small entities. The basis 
for this determination is as follows. While applicants for land-use-
exemption permits could be small entities, as defined in 13 CFR part 
121,

[[Page 69774]]

under neither the statute nor the final rules could the Board, on its 
own, require a party to apply for a Board permit. See 49 U.S.C. 
10908(b)(2)(B), 10909(a). In general, that decision is solely within 
the control of the entity. The one exception is that a governor of the 
state in which an existing facility is located could petition the 
Board, under 49 U.S.C. 10908(b)(2)(B) and 49 CFR part 1155 subpart B, 
to require that facility to obtain a land-use-exemption permit in order 
for it to continue to operate. Even in that circumstance, the authority 
lies with the state governors--not the Board--to initiate the Board's 
processes. In all other scenarios, a party can avoid being subject to 
the Board's rules regarding land-use-exemption permits by complying 
with state requirements. Therefore, the final rules will not 
circumscribe or mandate the conduct of a substantial number of small 
entities.
    Moreover, any burdens imposed on small entities come from the plain 
language of the CRA and the requirements that Congress has imposed on 
this agency. In revising our 2009 Rules and 2011 Rules, we have 
attempted to simplify the process wherever possible. Finally, we have 
provided a waiver provision that could mitigate any negative impacts on 
small entities. Our rules specifically provide that an applicant may 
request a waiver of any particular part of the application procedures. 
See 49 CFR 1155.22(d)(4).
    This action will not significantly affect either the quality of the 
human environment or the conservation of energy resources.
    It is ordered:
    1. The rules set forth below are adopted as final rules.
    2. Notice of this decision will be published in the Federal 
Register. The final rules will be effective on December 21, 2012.
    3. A copy of this decision will be served upon the Chief Counsel 
for Advocacy, Office of Advocacy, U.S. Small Business Administration.

List of Subjects in 49 CFR Part 1155

    Administrative practice and procedure.

    Decided: November 14, 2012.

    By the Board, Chairman Elliott, Vice Chairman Mulvey, and 
Commissioner Begeman.
Jeffrey Herzig,
Clearance Clerk.

    For the reasons set forth in the preamble, the Surface 
Transportation Board revises part 1155 of title 49, chapter X, of the 
Code of Federal Regulations to read as follows:

PART 1155--SOLID WASTE RAIL TRANSFER FACILITIES

Subpart A--General
Sec.
1155.1 Purpose and scope.
1155.2 Definitions.
Subpart B--Procedures Governing Petitions To Require a Facility in 
Existence on October 16, 2008, To Apply for a Land-Use-Exemption Permit
1155.10 Contents of petition.
1155.11 Filing and service of petition.
1155.12 Participation in petition procedures.
1155.13 Board determination with respect to a Governor's petition.
Subpart C--Procedures Governing Applications for a Land-Use-Exemption 
Permit
1155.20 Notice of intent to apply for a land-use-exemption permit.
1155.21 Contents of application.
1155.22 Filings and service of application.
1155.23 Participation in application proceedings.
1155.24 Environmental review.
1155.25 Transfer and termination of a land-use-exemption permit.
1155.26 Board determinations under 49 U.S.C. 10909.
1155.27 Petitions to modify, amend, or revoke a land-use-exemption 
permit.
Appendix A to Part 1155--Form Notice of Intent To Apply
Appendix B to Part 1155--Form Federal Register Notice


    Authority: 49 U.S.C. 721(a), 10908, 10909, 10910.

PART 1155--SOLID WASTE RAIL TRANSFER FACILITIES

Subpart A--General


Sec.  1155.1  Purpose and scope.

    49 U.S.C. 10501(c)(2)(B) excludes solid waste rail transfer 
facilities from the Board's jurisdiction except as provided under 49 
U.S.C. 10908 and 10909. Sections 10908 and 10909 provide the Board 
authority to issue land-use-exemption permits for solid waste rail 
transfer facilities when certain conditions are met. The regulations in 
this part concern land-use-exemption permits and the Board's standard 
for review.


Sec.  1155.2  Definitions.

    (a) Unless otherwise provided in the text of these regulations, the 
following definitions apply in this part:
    (1) Commercial and retail waste means material discarded by stores, 
offices, restaurants, warehouses, nonmanufacturing activities at 
industrial facilities, and other similar establishments or facilities.
    (2) Construction and demolition debris means waste building 
materials, packaging, and rubble resulting from construction, 
remodeling, repair, and demolition operations on pavements, houses, 
commercial buildings, and other structures.
    (3) Environmental Impact Statement or ``EIS'' means the detailed 
written statement required by the National Environmental Policy Act, 42 
U.S.C. 4332(2)(c), for a major federal action significantly affecting 
the quality of the human environment.
    (4) Household waste means material discarded by residential 
dwellings, hotels, motels, and other similar permanent or temporary 
housing establishments or facilities.
    (5) Industrial waste means the solid waste generated by 
manufacturing and industrial and research and development processes and 
operations, including contaminated soil, nonhazardous oil spill cleanup 
waste and dry nonhazardous pesticides and chemical waste, but does not 
include hazardous waste regulated under subtitle C of the Solid Waste 
Disposal Act (42 U.S.C. 6921 et seq.), mining or oil and gas waste.
    (6) Institutional waste means material discarded by schools, 
nonmedical waste discarded by hospitals, material discarded by 
nonmanufacturing activities at prisons and government facilities, and 
material discarded by other similar establishments or facilities.
    (7) Municipal solid waste means household waste, commercial and 
retail waste, and institutional waste.
    (8) Office of Environmental Analysis or ``OEA'' means the Board 
staff that prepares the Board's environmental documents and analyses.
    (9) Solid waste means construction and demolition debris; municipal 
solid waste; household waste; commercial and retail waste; 
institutional waste; sludge; industrial waste; and other solid waste, 
as determined appropriate by the Board, but not waste generated by a 
rail carrier during track, track structure, or right-of-way 
construction, maintenance, or repair (including railroad ties and line-
side poles), or waste generated as a result of a railroad accident, 
incident, or derailment.
    (10) Solid waste rail transfer facility--
    (i) Means the portion of a facility owned or operated by or on 
behalf of a rail carrier (as defined in 49 U.S.C. 10102) where solid 
waste, as a commodity to be transported for a charge, is collected, 
stored, separated, processed, treated, managed, disposed of, or 
transferred, when the activity

[[Page 69775]]

takes place outside of original shipping containers; but
    (ii) Does not include--
    (A) The portion of a facility to the extent that activities taking 
place at such portion are comprised solely of the railroad 
transportation of solid waste after the solid waste is loaded for 
shipment on or in a rail car, including railroad transportation for the 
purpose of interchanging railroad cars containing solid waste 
shipments; or
    (B) A facility where solid waste is solely transferred or 
transloaded from a tank truck directly to a rail tank car.
    (11) Sludge means any solid, semi-solid, or liquid waste generated 
from a municipal, commercial, or industrial wastewater treatment plant, 
water supply treatment plant, or air pollution control facility 
exclusive of the treated effluent from a wastewater treatment plant.
    (b) Exceptions. Notwithstanding paragraph (a) of this section, the 
terms household waste, commercial and retail waste, and institutional 
waste do not include yard waste and refuse-derived fuel; used oil; wood 
pallets; clean wood; medical or infectious waste; or motor vehicles 
(including motor vehicle parts or vehicle fluff).
    (c) Land-use-exemption permit means the authorization issued by the 
Board pursuant to the authority of 49 U.S.C. 10909(a) and includes the 
term ``siting permit'' in 49 U.S.C. 10909(e).
    (d) State laws, regulations, orders, or other requirements 
affecting the siting of a facility, as used in 49 U.S.C. 10909(f) and 
49 CFR 1155.27(d), include the requirements of a state or a political 
subdivision of a state, including a locality or municipality, affecting 
the siting of a facility.
    (e) State requirement, as used in 49 U.S.C. 10908 does not include 
the laws, regulations, ordinances, orders, or other requirements of a 
political subdivision of a state, including a locality or municipality, 
unless a state expressly delegates such authority to such political 
subdivision.

Subpart B--Procedures Governing Petitions To Require a Facility in 
Existence on October 16, 2008, To Apply for a Land-Use-Exemption 
Permit


Sec.  1155.10  Contents of petition.

    A petition to require a solid waste rail transfer facility in 
existence on October 16, 2008, to apply for a land-use-exemption 
permit, submitted by the Governor of the state or that Governor's 
designee, shall contain the following information:
    (a) The Governor's name.
    (b) The state's name and the name of any agency filing on behalf of 
the Governor.
    (c) The full address of the solid waste rail transfer facility, or, 
if not available, the city, state, and United States Postal Service ZIP 
code.
    (d) The name of the rail carrier that owns or operates the facility 
or the rail carrier on whose behalf the facility is operated.
    (e) A good-faith certification that the facility qualified as a 
solid waste rail transfer facility as defined in 49 U.S.C. 
10908(e)(1)(H) and 49 CFR 1155.2, on October 16, 2008.
    (f) Relief sought (that the rail carrier that owns or operates the 
facility be required to apply for a land-use-exemption permit).
    (g) Name, title, and address of representative of petitioner to 
whom correspondence should be sent.


Sec.  1155.11  Filing and service of petition.

    (a) When the petition is filed with the Board, the petitioner shall 
serve concurrently, by first class mail, a copy of the petition on the 
rail carrier that owns or operates the solid waste rail transfer 
facility and on the facility if the address is different than the rail 
carrier's address. A copy of the certificate of service shall be filed 
with the Board at the same time.
    (b) Upon the filing of a petition, the Board will review the 
petition and determine whether it conforms to all applicable 
regulations. If the petition is substantially incomplete or is 
otherwise defective, the Board will reject the petition without 
prejudice for stated reasons by order within 15 days from the date of 
filing of the petition.
    (c) If the petition is rejected, a revised petition may be 
resubmitted, and the Board will determine whether the resubmitted 
application conforms with all prescribed regulations.


Sec.  1155.12  Participation in petition proceedings.

    (a) An interested person may file a reply to the petition 
challenging any of the information contained in the petition that is 
required by 49 CFR 1155.10(c) through (e) and may offer evidence to 
support its contention. The petitioner will have an opportunity to file 
a rebuttal.
    (b) A facility can acknowledge that it was a solid waste rail 
transfer facility on October 16, 2008, but no longer operates as such 
and therefore is not required to seek a land-use-exemption permit. To 
do so, a facility must file with the Board a certification stating that 
it:
    (1) No longer operates as a solid waste transfer facility;
    (2) Understands that by certifying that it no longer operates as a 
solid waste transfer facility, it no longer qualifies as a facility in 
existence on October 16, 2008 for purposes of the Clean Railroad Act 
and these regulations; and
    (3) Understands that if it seeks a land-use-exemption permit in the 
future, it would be required to do so as a proposed facility.
    (c) Filing and service of replies. (1) Any reply shall be filed 
with the Board (the Chief, Section of Administration, Office of 
Proceedings, Surface Transportation Board, 395 E Street SW., 
Washington, DC 20423) within 20 days of the filing with the Board of 
the petition.
    (2) A copy of the reply shall be served on petitioner or its 
representative at the time of filing with the Board. Each filing shall 
contain a certificate of service.
    (3) Any rebuttal to a reply shall be filed and served by petitioner 
no later than 30 days after the filing of the petition.


Sec.  1155.13  Board determination with respect to a Governor's 
petition.

    The Board shall accept the Governor's complete petition on a 
finding that the facility qualified as a solid waste rail transfer 
facility, as defined in 49 U.S.C. 10908(e)(1)(H) and 49 CFR 1155.2, on 
October 16, 2008. If the Board finds that the facility currently does 
not qualify for or require a land-use-exemption permit, any future use 
of the facility as a solid waste rail transfer facility would require 
an application for a land-use-exemption permit as a proposed facility 
and/or the proper state permits. In a decision granting the Governor's 
petition, the Board shall require that the rail carrier that owns or 
operates the facility, or the operator of the facility, file a land-
use-exemption-permit application within 120 days of the service date of 
the decision.

Subpart C--Procedures Governing Applications for a Land-Use-
Exemption Permit


Sec.  1155.20  Notice of intent to apply for a land-use-exemption 
permit.

    (a) Filing and publication requirements. An applicant (i.e., a 
solid waste rail transfer facility, or the rail carrier that owns or 
operates the facility) shall give its Notice of Intent to file a land-
use-exemption-permit application by complying with the following 
procedures:
    (1) Filing. Applicant must serve its Notice of Intent on the Board 
in the format prescribed in Appendix A to this part. The Notice of 
Intent shall be filed in accordance with the time

[[Page 69776]]

requirements of paragraph (b) of this section.
    (2) Service. Applicant must serve, by first-class mail (unless 
otherwise specified), its Notice of Intent upon:
    (i) The Governor of the state where the facility is located;
    (ii) The municipality, the state, and any relevant political 
subdivision of a state or federal or state regional planning entity in 
the jurisdiction of which the solid waste rail transfer facility is 
located or proposed to be located; and
    (iii) The appropriate managing government agencies responsible for 
the groups of land listed in 49 U.S.C. 10909(c)(2).
    (3) Newspaper publication. Applicant must publish its Notice of 
Intent at least once during each of 3 consecutive weeks in a newspaper 
of general circulation in each county in which any part of the proposed 
or existing facility is located.
    (b) Time limits. (1) The Notice of Intent must be served on the 
parties discussed above at least 15 days, but not more than 30 days, 
prior to the filing of the land-use-exemption-permit application;
    (2) The three required newspaper Notices must be published within 
the 30-day period prior to the filing of the application; and
    (3) The Notice of Intent must be filed with the Board either 
concurrently with service on the required parties or when the Notice is 
first published (whichever occurs first).
    (c) Environmental and Historic Reports. Applicant must also submit 
an Environmental and/or Historic Report containing the information 
described at 49 CFR 1155.24(b), 1105.7, and 1105.8, to the extent 
applicable, at least 45 days prior to filing an application. OEA may 
reject any report that it deems inadequate. The environmental and 
historic reporting requirements that would otherwise apply are waived, 
however, if the applicant or the Board hires a third-party consultant, 
OEA approves the scope of the consultant's work, and the consultant 
works under OEA's supervision to prepare an EIS or other environmental 
documentation. In such a case, the consultant acts on behalf of the 
Board, working under OEA's direction to collect the needed 
environmental information and compile it into an EIS or other 
appropriate environmental documentation. See 49 U.S.C. 10909(h); 49 CFR 
1155.24(c).


Sec.  1155.21  Contents of application.

    Applications for land-use-exemption permits for the facility, and 
any proposed future expansion within 10 years of the application date, 
shall contain the following information, including supporting 
documentation:
    (a) General. (1) Exact name of applicant.
    (2) Whether applicant is a common carrier by railroad subject to 49 
U.S.C. Subtitle IV, chapter 105.
    (3) Summary of why a land-use-exemption permit is being sought.
    (4) The full address of the solid waste rail transfer facility, or, 
if not available, the city, state, and United States Postal Service ZIP 
code.
    (5) The name of the rail carrier that owns or operates the facility 
or the rail carrier on whose behalf the facility is operated, the line 
of railroad serving the facility, the milepost location of the 
facility, and the milepost and names of the stations that the facility 
is located between.
    (6) Name, title, and address of representative of applicant to whom 
comments should be sent.
    (7) Copies of the specific state, local, or municipal laws, 
regulations, orders, or other requirements affecting the siting of the 
solid waste rail transfer facility from which the applicant requests 
entire or partial exemption, any publicly available material providing 
the criteria for the application of the state, local, or municipal 
laws, regulations, orders, or other requirements affecting the siting, 
and a description of any action that the state, local, or municipal 
authority has taken affecting the siting of the facility. The applicant 
shall state whether each law, regulation, order or other requirement 
from which an exemption is sought is an environmental, public health, 
or public safety standard that falls under the traditional police 
powers of the state. If the applicant states that the requirement is 
not such a standard, it shall explain the reasons for its statement.
    (8) Certification that the laws, regulations, orders or other 
requirements from which the applicant requests exemption are not based 
on federal laws, regulations, orders, or other requirements.
    (9) Certification that the facility complies with all state, local, 
or municipal laws, regulations, orders, or other requirements affecting 
the siting of the facility except for those from which it seeks 
exemption.
    (10) Certification that the applicant has applied or will apply for 
the appropriate state permits not affecting siting.
    (11) For facilities not in existence as of October 16, 2008, 
certification that the facility is not proposed to be located on land 
within any unit of or land affiliated with the National Park System, 
the National Wildlife Refuge System, the National Wilderness 
Preservation System, the National Trails System, the National Wild and 
Scenic Rivers System, a National Reserve, or a National Monument. For 
facilities in existence as of October 16, 2008, state whether the 
facility is located in any of these types of lands.
    (12) For facilities not in existence as of October 16, 2008, 
certification that the facility is not proposed to be located on lands 
referenced in The Highlands Conservation Act, Public Law No. 108-421, 
for which a state has implemented a conservation management plan, or, 
that the facility is consistent with the restrictions implemented by 
the applicable state under The Highlands Conservation Act, Public Law 
No. 108-421, placed on its proposed location. For facilities in 
existence as of October 16, 2008, state whether the facility is located 
on any of these lands, and, if so, address whether the facility is 
consistent with the restrictions placed on the location by the 
applicable state under that law.
    (13) An explanation of how the facility comes within the Board's 
jurisdiction under 49 U.S.C. 10501.
    (14) The owner and operator of the facility.
    (15) The interest of the rail carrier in the facility.
    (16) An explanation of how the facility meets the definition of a 
solid waste rail transfer facility at 49 U.S.C. 10909(e)(1)(H).
    (17) A statement whether the applicant has sought permission from 
the applicable state, local, or municipal authority with respect to 
some or all of the facility in its application and received an 
unsatisfactory result affecting the siting of the facility. The 
applicant shall provide information about the unsatisfactory result and 
shall include all relevant orders, decisions, or other notices of the 
denial.
    (18) A detailed description of the operations and activities that 
will occur/are occurring at the facility.
    (19) Detailed map showing the subject facility on sheets not larger 
than 11x17 inches, drawn to scale, and with the scale shown thereon. 
The map must show, in clear relief, the exact location of the facility 
on the rail line and its relation to other rail lines in the area, 
highways, water routes, population centers, and any geographic features 
that should be considered in determining whether the facility would 
pose an unreasonable risk to public health, safety, or the environment, 
pursuant to 49 U.S.C. 10909(c)(1).

[[Page 69777]]

    (20) Detailed drawing of the subject facility on sheets not larger 
than 11x17 inches, drawn to scale, and with the scale shown thereon. 
The drawing must show, in clear relief, the exact boundaries of the 
facility, structures at the facility, the location and type of the 
operations taking place at the facility, the proposed traffic 
configuration for the solid waste entering and leaving the facility, 
reasonable future expansion planned for the next 10 years that the 
applicant requests to be included in the land-use-exemption permit, any 
geographic features that should be considered in determining whether 
the facility would pose an unreasonable risk to public health, safety, 
or the environment, pursuant to 49 U.S.C. 10909(c)(1), and any other 
information that the applicant believes would be relevant.
    (21) A detailed justification for why any future expansion planned 
for the next 10 years should be covered by the land-use-exemption 
permit.
    (b) Statement. A statement that sets forth, based on currently 
available information, the reasons why the Board should grant a land-
use-exemption permit to the applicant under the standards in 49 U.S.C. 
10909(c), (d) and the regulations in this part. Specifically, the 
applicant shall include an explanation of whether the laws, 
regulations, or other requirements affecting siting of the facility 
from which exemption is sought, on their face or as applied, 
unreasonably burden the interstate transportation of solid waste by 
railroad or discriminate against the railroad transportation of solid 
waste and a solid waste rail transfer facility, and, if so, why.
    (c) Environmental impact. The applicant shall certify that it has 
submitted an Environmental and/or Historic Report containing the 
information in 49 CFR 1155.24(b), 1105.7, and 1105.8, to the extent 
applicable, if an Environmental and/or Historic Report is required. See 
49 CFR 1155.20(c).
    (d) Additional information. The applicant shall submit such 
additional information to support its application as the Board may 
require.
    (e) Draft Federal Register Notice. The applicant shall submit a 
draft notice of its application to be published by the Board. In 
addition to the regular number of copies that must be filed with the 
Board, the applicant must submit a copy of the draft notice as data 
contained on a computer diskette compatible with the Board's current 
word processing capabilities. The Board will publish the notice in the 
Federal Register within 20 days of the application's filing with the 
Board. The draft notice shall be in the form set forth in Appendix B to 
this part.
    (f) Verification. The original application shall be executed and 
verified in the form set forth below by an officer of the applicant 
having knowledge of the facts and matters relied upon.
Verification
    State of -------- ss.
    County of --------
    ------------ (Name of affiant) makes oath and says that (s)he is 
the -------- (title of affiant) of the -------- (name of applicant) 
applicant herein; that (s)he has been authorized by the applicant (or 
as appropriate, a court) to verify and file with the Surface 
Transportation Board the foregoing application in Finance Docket No. --
-- (Sub-No. ----); that (s)he has carefully examined all of the 
statements in the application as well as the exhibits attached thereto 
and made a part thereof; that (s)he has knowledge of the facts and 
matters relied upon in the application; and that all representations 
set forth therein are true and correct to the best of his/her 
knowledge, information, and belief.


(Signature)

    Subscribed and sworn to before me -------- in and for the State and 
County above named, this ---- day of ----, 20----.

    My commission expires --------


Sec.  1155.22  Filings and service of application.

    (a) The applicant shall tender with its application an affidavit 
attesting to its compliance with the notice requirements of 49 CFR 
1155.20. The affidavit shall include the dates of service, posting, and 
newspaper publication of the Notice of Intent.
    (b) When the application is filed with the Board, the applicant 
shall serve concurrently, by first-class mail, a copy on the Governor 
of the state where the facility is located; the municipality, the 
state, and any relevant political subdivision of a state or federal or 
state regional planning entity of the jurisdiction in which the solid 
waste rail transfer facility is located or proposed to be located; and 
the appropriate managing government agencies responsible for the groups 
of land listed in 49 U.S.C. 10909(c)(2). A copy of the certificate of 
service shall be filed with the Board at the same time.
    (c) The applicant shall promptly furnish by first class mail a copy 
of the application to any interested person proposing to file a comment 
upon request. A copy of the certificate of service shall be filed with 
the Board at the same time.
    (d)(1) Upon the filing of a land-use-exemption-permit application, 
the Board will review the application and determine whether it conforms 
to all applicable regulations. If the application is substantially 
incomplete or is otherwise defective, the Board shall reject the 
application for stated reasons by order within 20 days from the date of 
filing of the application. If the Board does not reject the 
application, notice of the filing of the application shall be published 
in the Federal Register by the Board, through the Director of the 
Office of Proceedings, within 20 days of the filing of the application.
    (2) If the application is rejected, a revised application may be 
submitted and the Board will determine whether the resubmitted 
application conforms with all prescribed regulations. A properly 
revised application submitted within 60 days of the order rejecting the 
incomplete or improper application need not be subject to new notice 
and publication under Sec.  1155.20, unless the defect causing the 
rejection was in the notice and/or publication. A revised application 
submitted after such 60-day period must be newly published and noticed.
    (3) The resubmission of a complete and properly filed land-use-
exemption-permit application shall be considered a de novo filing for 
the purposes of computation of the time periods prescribed in the 
regulations contained in this part.
    (4) An applicant may seek waiver of specific regulations listed in 
subpart C of this part by filing a petition for waiver with the Board. 
When the petition is filed with the Board, the applicant shall serve, 
by first-class mail, a copy on the Governor of the state where the 
facility is located; the municipality, the state, and any relevant 
political subdivision of a state or federal or state regional planning 
entity of the jurisdiction in which the solid waste rail transfer 
facility is located or proposed to be located; and the appropriate 
managing government agencies responsible for the groups of land listed 
in 49 U.S.C. 10909(c)(2). A copy of the certificate of service shall be 
filed with the Board at the same time. A decision by the Director of 
the Office of Proceedings granting or denying a waiver petition will be 
issued within 30 days of the date the petition is filed. Appeals from 
the Director's decision will be decided by the entire Board. If waiver 
is not obtained prior to the filing of the application, the application 
may be subject to rejection.

[[Page 69778]]

Sec.  1155.23  Participation in application proceedings.

    (a) Initial comments. Interested persons may become parties to a 
land-use-exemption-permit proceeding by filing initial comments with 
the Board within 45 days of the filing of the application. Comments 
should contain the following information, as appropriate:
    (1) Name, address, and organizational affiliation.
    (2) A statement describing commenter's interest in the proceeding, 
including information concerning any organization or public interest it 
represents.
    (3) Reasons, in general, why commenter supports or opposes the 
application, taking into account the standards for the Board's review 
and consideration set forth in 49 U.S.C. 10909(c), (d) and this part.
    (4) Any rebuttal to the evidence and argument submitted by 
applicant.
    (b) Final comments. Interested persons, including the applicant, 
within 30 days after the close of OEA's environmental review, may 
comment on how the information developed during OEA's environmental 
review concerning the considerations at 49 U.S.C. 10909(d)(1) through 
(5) should be weighed with the remaining transportation and other 
relevant considerations at 49 U.S.C. 10909(d)(6) through (7). The 
parties will have an additional 15 days to respond to other parties' 
arguments. All pleadings shall be limited to weighing the information 
developed during OEA's environmental review with transportation and 
other concerns, and should not be directed towards the adequacy of 
OEA's environmental review. (Interested persons may comment on the 
adequacy of OEA's environmental review during the normal comment period 
for the EIS as provided in 49 CFR 1105.10(a)(4). See 49 CFR 
1155.24(a).) All comments under this paragraph shall contain the 
information required in paragraphs (a)(1) through (2) of this section.
    (c) Filing and service of comments and replies (including evidence 
and argument). (1) Initial comments shall be filed with the Board 
(addressed to the Chief, Section of Administration, Office of 
Proceedings, Surface Transportation Board, 395 E Street SW., 
Washington, DC 20423) within 45 days of the filing with the Board of a 
land-use-exemption-permit application. An original and 10 copies of 
each comment shall be filed with the Board. A copy of each comment 
shall be served on applicant or its representative at the time of 
filing with the Board. Each filing shall contain a certificate of 
service.
    (2) Final comments shall be filed and served on all parties within 
30 days of the close of the environmental review. An original and 10 
copies of such comments shall be filed with the Board. A copy of each 
comment shall be served on applicant or its representative at the time 
of filing with the Board. Each filing shall contain a certificate of 
service.
    (3) Replies to final comments shall be filed and served on all 
parties no later than 45 days after the close of the environmental 
review. An original and 10 copies of such replies shall be filed with 
the Board. A copy of each reply to comments shall be served on 
applicant or its representative at the time of filing with the Board. 
Each filing shall contain a certificate of service.


Sec.  1155.24  Environmental review.

    (a) A land-use-exemption permit generally will require the 
preparation of an EIS. OEA may reclassify the environmental review 
requirements of land-use-exemption proceedings on a case-by-case basis, 
pursuant to 49 CFR 1105.6(d).
    (b) An applicant for a land-use-exemption permit must submit an 
Environmental Report, at least 45 days prior to filing a land-use-
exemption-permit application, containing the information described at 
49 CFR 1105.7 to the extent applicable to solid waste rail transfer 
facilities. Applicants shall concurrently file a Historic Report 
containing the information at 49 CFR 1105.8 if applicable. The 
Environmental Report must also contain a discussion of the five factors 
for consideration listed at 49 U.S.C. 10909(d)(1) through (5) and 
address any associated environmental impacts as they relate to the 
facility for which a land-use-exemption permit is sought.
    (c) The Board strongly encourages applicants to use third-party 
contractors to assist OEA in preparing the appropriate environmental 
documentation in land-use-exemption-permit proceedings. See 49 CFR 
1105.10(d). The environmental reporting requirements outlined above 
that would otherwise apply are waived if an applicant hires a third-
party contractor, OEA approves the scope of the contractor's work, and 
the contractor works under OEA's direct supervision. See 49 CFR 
1105.10(d). If an applicant does not hire an independent third-party 
contractor, the Board may hire a third-party contractor and charge the 
costs for the contractor to the applicant. See 49 U.S.C. 10909(h).
    (d) The Board's procedures set forth in 49 CFR 1105.10 for 
implementation of environmental laws are controlling unless superseded 
by provisions in this Part.
    (e) An applicant for a land-use-exemption permit must follow the 
Board's procedures at 49 CFR 1105.9 for compliance with the Coastal 
Zone Management Act, 16 U.S.C. 1451 through 1465, if that act is 
applicable.


Sec.  1155.25  Transfer and termination of a land-use-exemption permit.

    (a) A land-use-exemption permit may be transferred from a rail 
carrier to an acquiring rail carrier without the need for a new 
application for a land-use-exemption permit if the rail line associated 
with the solid waste rail transfer facility is transferred to another 
rail carrier or to an entity formed to become a rail carrier pursuant 
to authority granted by the Board under 49 U.S.C. 10901, 10902, or 
11323. When seeking Board authority under 49 U.S.C. 10901, 10902, or 
11323, the applicant(s) shall specifically advise the Board, the 
municipality, the state, and any relevant political subdivision of a 
state or federal or state regional planning entity of the jurisdiction 
in which the solid waste rail transfer facility is located, of the 
intended transfer. The Federal Register notice concerning the 
acquisition shall include a statement that a solid waste rail transfer 
facility with a Board-issued land-use-exemption permit is included in 
the acquisition.
    (b) When a carrier plans to cease using a facility as a solid waste 
rail transfer facility, or when a facility is transferred to any party 
in any manner other than that described in paragraph (a) of this 
section, the entity that received the land-use-exemption permit must 
notify the Board, the municipality, the state, and any relevant 
political subdivision of a state or federal or state regional planning 
entity of the jurisdiction in which the solid waste rail transfer 
facility is located, in writing no later than 60 days prior to the 
proposed cessation or transfer. Upon receipt of that notice, the Board 
will publish notice in the Federal Register that the land-use-exemption 
permit will be terminated on the 60th day unless otherwise ordered by 
the Board.


Sec.  1155.26  Board determinations under 49 U.S.C. 10909.

    (a) Schedule. (1) The schedule in paragraph (a)(2) of this section 
shall govern the process for Board consideration and decisions in land-
use-exemption-permit application proceedings from the time the 
application is filed until the time of the Board's decision on the 
merits:
    (2) At least 45 days prior to filing of application--Environmental 
Report

[[Page 69779]]

(and/or Historic Report, if applicable) filed and environmental process 
initiated pursuant to 49 CFR 1155.24. Within 30 days prior to filing of 
application--Notice of Intent filed with the Board pursuant to the 
deadlines and requirements described in 49 CFR 1155.20(b)(3).
    (i) Day 0--Application filed.
    (ii) Day 20--Due date for Notice of Application to be published in 
the Federal Register.
    (iii) Day 45--Due date for initial comments.
    (iv) 30 days after the Final EIS (or other final environmental 
documentation) is issued by OEA--Due date for final comments.
    (v) 45 days after the Final EIS (or other final environmental 
documentation) is issued by OEA--Due date for replies to final 
comments.
    (3) A decision on the merits will be due 90 days after a full 
record is developed.
    (b) Standard for review. (1) The Board will issue a land-use-
exemption permit only if it determines that the facility at the 
existing or proposed location would not pose an unreasonable risk to 
public health, safety, or the environment. In deciding whether a solid 
waste rail transfer facility that is or proposed to be constructed or 
operated by or on behalf of a rail carrier poses an unreasonable risk 
to public health, safety, or the environment, the Board shall weigh the 
particular facility's potential benefits to and the adverse impacts on 
public health, public safety, the environment, interstate commerce, and 
transportation of solid waste by rail.
    (2) The Board will not grant a land-use-exemption permit for a 
solid waste rail transfer facility proposed to be located on land 
within any unit of or land affiliated with the National Park System, 
the National Wildlife Refuge System, the National Wilderness 
Preservation System, the National Trails System, the National Wild and 
Scenic Rivers System, a National Reserve, or a National Monument.
    (3) The Board will not grant a land-use-exemption permit for a 
solid waste rail transfer facility proposed to be located on land 
within any unit of or land affiliated with lands referenced in The 
Highlands Conservation Act, Public Law No. 108-421, for which a state 
has implemented a conservation management plan, if operation of the 
facility would be inconsistent with restrictions placed on such land.
    (4) The Board will reject an application from a person who is not a 
rail carrier, but is instead operating on behalf of a rail carrier 
unless;
    (i) The applicant has sought permission from the applicable state, 
local, or municipal authority with respect to some or all of the 
property in the application and received an unsatisfactory result 
affecting the siting of the facility, or
    (ii) The Governor of the state has petitioned the Board to require 
the facility to apply under subpart B of this part.
    (5) The Board will issue a land-use-exemption permit to an 
applicant that has received an unsatisfactory result from a state, 
local or municipal authority affecting the siting of the facility only 
if it finds that the laws, regulations, or other requirements affect 
the siting of the facility, on their face or as applied, either;
    (i) Unreasonably burden the interstate transportation of solid 
waste by railroad, or
    (ii) Discriminate against the railroad transportation of solid 
waste and a solid waste rail transfer facility.
    (6) A land-use-exemption permit will only exempt state, local, or 
municipal laws, regulations, orders, other requirements, or portions 
thereof, affecting the siting of the solid waste rail transfer 
facility.
    (c) Considerations. As required by 49 U.S.C. 10909(d), the Board 
will consider and give due weight to the following, as applicable:
    (1) The land-use, zoning, and siting regulations or solid waste 
planning requirements of the state or state subdivision in which the 
facility is or will be located that are applicable to solid waste 
transfer facilities, including those that are not owned or operated by 
or on behalf of a rail carrier;
    (2) The land-use, zoning, and siting regulations or solid waste 
planning requirements applicable to the property where the solid waste 
rail transfer facility is proposed to be located;
    (3) Regional transportation planning requirements developed 
pursuant to federal and state law;
    (4) Regional solid waste disposal plans developed pursuant to 
federal or state law;
    (5) Any federal and state environmental protection laws or 
regulations applicable to the site;
    (6) Any unreasonable burdens imposed on the interstate 
transportation of solid waste by railroad, or the potential for 
discrimination against the railroad transportation of solid waste, a 
solid waste rail transfer facility, or a rail carrier that owns or 
operates such a facility; and
    (7) Any other relevant factors, as determined by the Board.
    (d) Permits. If the Board grants a land-use-exemption permit for a 
solid waste rail transfer facility, such permit will only exempt a 
facility from complying with state laws, regulations, orders, or other 
requirements affecting the siting of the facility that are specified 
therein. The permit will require compliance with all other state laws, 
regulations, orders, or other requirements not otherwise expressly 
exempted in the permit.


Sec.  1155.27  Petitions to modify, amend, or revoke a land-use-
exemption permit.

    General rule. Petitions to modify, amend, or revoke land-use-
exemption permits shall be decided in accordance with the Board's 
normal standard of review for petitions to reopen administratively 
final Board actions at 49 CFR 1115.4. The petition must demonstrate 
material error, new evidence, or substantially changed circumstances 
that warrant the requested action, and is subject to these additional 
conditions:
    (a) An entity that petitions for a modification or amendment 
requesting an expansion of federal preemption or the facility's 
operations or physical size is subject to the notice and application 
requirements in this subpart C. The language of the notifications shall 
be modified to note that the petition is for a modification or 
amendment.
    (b) The Board will approve or deny petitions to modify, amend, or 
revoke a land-use-exemption permit within 90 days after the full record 
for the petition is developed.

Appendix A to Part 1155--Form Notice of Intent To Apply

    Docket No. FD ----(Sub-No. ----)
    Notice of Intent to apply for a land-use-exemption permit for a 
solid waste rail transfer facility.
    (Name of Applicant) gives notice that on or about (insert date 
application will be filed with the Board) it intends to file with 
the Surface Transportation Board, 395 E Street SW., Washington, DC 
20423, an application for a land-use-exemption permit for a solid 
waste rail transfer facility as defined in 49 U.S.C. 10908(e)(1)(H) 
and 49 CFR 1155.2. The solid waste rail transfer facility, owned by 
(name of owner), and operated by (name of operator), is located at 
(full address, or, if not available, provide city, state, and United 
States Postal Service ZIP code). The solid waste rail transfer 
facility is located on a (name of rail carrier) line of railroad 
known as -------- at milepost -------- between (station name) at 
milepost -------- and (station name) at milepost --------.
    The reason(s) for the proposed permit application is (are) ----
---- (explain briefly and clearly the activities undertaken, or 
proposed to be undertaken, by the applicant at the solid waste rail 
transfer facility. Describe the specific state and local laws,

[[Page 69780]]

regulations, orders or other requirements affecting siting from 
which the applicant requests entire or partial exemption and any 
action that the state, local, or municipal authority has taken 
affecting the siting of the facility. Also, if applicant is not the 
rail carrier, provide the name of the rail carrier that owns or 
operates the facility or has the facility operated on its behalf.)
    (Include this paragraph for facilities not in existence on 
October 16, 2008). Applicant certifies that, based on information in 
its possession, the facility is not proposed to be located on land 
within any unit of or land affiliated with the National Park System, 
the National Wildlife Refuge System, the National Wilderness 
Preservation System, the National Trails System, the National Wild 
and Scenic Rivers System, a National Reserve, or a National 
Monument. Applicant further certifies that the facility is not 
proposed to be located on lands referenced in The Highlands 
Conservation Act, Public Law 108-421, for which a state has 
implemented a conservation management plan (or, The facility is 
consistent with the restrictions implemented by (state) under The 
Highlands Conservation Act, Public Law 108-421, placed at its 
proposed location). Any relevant documentation in the railroad's 
possession on these issues will be made available promptly to those 
requesting it.
    (For facilities already in existence on October 16, 2008, 
address the extent to which the facility is or is not located in any 
of these types of lands, and to the extent that it is so located 
address any relevant criteria, and so certify.)
    The application containing the information set forth at 49 CFR 
1155.21 will include the applicant's case for the granting of the 
land-use-exemption permit. Any interested person, after the 
application is filed on (insert date), may file with the Surface 
Transportation Board initial comments concerning the application 
within 45 days after the application is filed.
    The party's initial comments should contain that party's initial 
arguments in support or opposition based on the information 
available at that point including the following, as appropriate:
    (1) Name, address, and organizational affiliation.
    (2) A statement describing commenter's interest in the 
proceeding, including information concerning the organization or 
public interest the commenter represents.
    (3) Specific reasons why commenter supports or opposes the 
application, taking into account the standards for the Board's 
review and consideration provided in 49 U.S.C. 10909(c), (d), and 
the Board's regulations at 49 CFR 1155.27.
    (4) If the applicant files under 49 CFR 1155.22, specific 
reasons why commenter supports or opposes the Board's accepting the 
application.
    (5) Any rebuttal of material submitted by applicant.
    The parties' initial comments will be considered by the Board in 
determining what disposition to make of the application. Parties 
seeking further information concerning the filing of comments should 
refer to 49 CFR 1155.24.
    Interested persons also will have the opportunity to provide 
detailed comments during the Board's environmental review under the 
National Environmental Policy Act. 49 CFR 1105.10 and 49 CFR 
1155.25. Questions concerning the environmental review process or 
potential environmental issues may be directed to the Board's Office 
of Environmental Analysis (OEA). After the close of the 
environmental review, interested parties may file final comments on 
how the information developed during the environmental review should 
be weighed by the Board in determining whether to grant the 
requested land-use-exemption permit. See 49 CFR part 1155 for 
details on these processes.
    All comments should indicate the proceeding designation Docket 
No. FD ---- (Sub-No. ----). Initial comments must be filed with the 
Chief, Section of Administration, Office of Proceedings, Surface 
Transportation Board, 395 E Street SW., Washington, DC 20423, no 
later than (insert the date 45 days after the date applicant intends 
to file its application). A copy of each comment shall be served 
upon the representative of the applicant (insert name, address, and 
phone number). Except as otherwise set forth in 49 CFR part 1155, 
each document filed with the Board must be served on all parties to 
the land-use-exemption-permit proceeding. See 49 CFR 1104.12(a).
    Persons seeking further information concerning land-use-
exemption-permit procedures may contact the Surface Transportation 
Board or refer to 49 U.S.C. 10908, 10909, and the full land-use-
exemption-permit regulations at 49 CFR part 1155.
    A copy of the application will be available for public 
inspection on or after (insert date the land-use-exemption-permit 
application is to be filed with Board) and will be available on the 
Board's Web site at https://www.stb.dot.gov. The applicant shall 
furnish a copy of the application to any interested person proposing 
to file a comment, upon request.

Appendix B to Part 1155--Form Federal Register Notice

    Docket No. FD ---- (Sub-No. ----)
    Notice of Application for a land-use-exemption permit for a 
solid waste rail transfer facility.
    On (insert date application was filed with the Board) (name of 
applicant) filed with the Surface Transportation Board, 395 E Street 
SW., Washington, DC 20423, an application for a land-use-exemption 
permit for a solid waste rail transfer facility. The solid waste 
rail transfer facility, owned by (name of owner), and operated by 
(name of operator), is located at (full address, or, if not 
available, provide city, state, and United States Postal Service ZIP 
code). The solid waste rail transfer facility is located on a line 
of (name of rail carrier) railroad known as -------- at milepost --
------ between (station name) at milepost -------- and (station 
name) at milepost --------. The application explains why applicant 
believes its request for a land-use-exemption permit should be 
granted.
    (Include this paragraph for facilities not in existence on 
October 16, 2008). The facility is not proposed to be located on 
land within any unit of or land affiliated with the National Park 
System, the National Wildlife Refuge System, the National Wilderness 
Preservation System, the National Trails System, the National Wild 
and Scenic Rivers System, a National Reserve, or a National 
Monument. The facility is not proposed to be located on lands 
referenced in The Highlands Conservation Act, Public Law No. 108-
421, for which a state has implemented a conservation management 
plan (or, The facility is consistent with the restrictions 
implemented by (state) under The Highlands Conservation Act, Public 
Law 108-421, placed on its proposed location). Any relevant 
documentation in the railroad's possession will be made available 
promptly to those requesting it.
    (For facilities already in existence on October 16, 2008, 
address the extent to which the facility is or is not located in any 
of these types of lands, and to the extent that it is so located 
address any relevant criteria, and so certify.)
    Any interested person may file with the Surface Transportation 
Board initial comments concerning the application within 45 days of 
the filing of the application. Persons seeking information 
concerning the filing of initial comments should refer to 49 CFR 
1155.23.
    All comments should indicate the proceeding designation Finance 
Docket No. ---- (Sub-No. ----). Initial comments must be filed with 
the Chief, Section of Administration, Office of Proceedings, Surface 
Transportation Board, 395 E Street SW., Washington, DC 20423, no 
later than (insert the date 45 days after the date applicant intends 
to file its application). A copy of each comment shall be served 
upon the representative of the applicant (insert name, address, and 
phone number). Except as otherwise set forth in 49 CFR part 1155, 
each document filed with the Board must be served on all parties to 
the land-use-exemption-permit proceeding. 49 CFR 1104.12(a).
    Persons seeking further information concerning land-use-
exemption-permit procedures may contact the Surface Transportation 
Board or refer to 49 U.S.C. 10908, 10909, 10910, and the Board's 
implementing land-use-exemption-permit regulations at 49 CFR part 
1155.
    A copy of the application is available for public inspection. 
The applicant shall furnish a copy of the application to any 
interested person proposing to file a comment, upon request.
    Questions concerning the environmental review process or 
potential environmental issues may be directed to the Board's Office 
of Environmental Analysis (OEA). After the close of the 
environmental review, interested parties may file final comments on 
how the information developed during the environmental review should 
be weighed by the Board in determining whether to grant the 
requested land-use-exemption permit. See 49 CFR part 1155 for 
details on these processes.

[FR Doc. 2012-28196 Filed 11-20-12; 8:45 am]
BILLING CODE 4915-01-P