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Daily Rules, Proposed Rules, and Notices of the Federal Government

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.
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 theFederal Registeron 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 theFederal Registeron 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,see49 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.See49 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 nowcomply 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

1The 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).

2The2009 Decisionand the2011 Decisioncontain further discussion of the CRA and the Board's initial and subsequent implementation of the legislation.

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.

3The 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.

A. Environmental Impact Statement (EIS) Notice

In the2011 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 § 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

4NSWMA's Comments 2-4; CTEP's Comments 1 (adopting NSWMA's comments).

5We note that the 6-month prefiling requirement that NSWMA relies on is frequently waived.See49 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.

6NSWMA's Comments 3.

7Pursuant 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).

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 also40 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 theFederal Registerand 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.

8Opportunities 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).

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 theFederal Register.10 We do not believe thatFederal Registerpublication 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 Federal Registerpublication is needed to provide adequate notice of a request to reclassify the level of environmental review for a proposed action.

9We note that, contrary to AAR's assertion in its reply brief, a written request to reclassify pursuant to §§ 1155.24(a) and 1105.6(d) is distinct from a petition for waiver pursuant to § 1155.22(d)(4). (SeeAAR'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 * * * .”).

10NSWMA's Comments 3.

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 supran.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.

11NJDEP's Comments 3.

12We have made minor editorial changes to the 2011 Rules, including capitalizing “Environmental Report” and “Historic Report” consistently throughout.

It would be inappropriate to grant NJDEP's request. As the Board specifically stated in the2011 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 § 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 § 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 § 1155.21(c) to § 1155.20(c).

13The 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 infranote 31 and accompanying text.

14In response to several comments on the 2009 Rules, the Board noted in the2011 Decisionthat, 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 § 1105.7, to the extent applicable. 49 CFR 1155.20(c), 1155.24(b). We have revised § 1155.21(c) to add “to the extent applicable” to comport with § 1155.20(c), § 1155.24(b) and our discussion in the2011 Decision.

C. Interpretation of 49 U.S.C. 10910

In the2011 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

15Section 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.”

The procedural requirement in § 1155.21(a)(7), and the Board's substantive standard of review found at § 1155.26(b)(6), were based on the Board's interpretation of § 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 § 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 § 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 interstatecommerce 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 § 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

16AAR also claims that our interpretation of section 10910 in the2011 Decisionconflicts with our interpretation of that section in the2009 Decision.(AAR's Comments 4.) Given our decision here, there is no need to address this argument.

17AAR's Comments 6 n.5, 20 n.12.

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 discretionnotto 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 § 1155.26(b)(6) from our final rules.19

18AAR's Comments 6 n.5 (citing49 U.S.C. 10909(f) (“An exemption may require compliance with such State laws, regulations, orders, or other requirements.”)).

19Former § 1155.26(b)(7) is now renumbered as § 1155.26(b)(6) in the final rules.

With respect to the procedural requirement in § 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 the2011 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).

20AAR's Comments 14-15.

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 the2011 Decisionthat “[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 § 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

21CTEP's Comments 1; NSWMA's Comments 4.

22ACUA's Comments 1; Bensalem's Comments 1; RIRRC's Comments 1.

As the Board previously explained in the2011 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.See49 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 toan 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.

23ACUA's Comments 1.

24ACUA's Comments 1.

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.

25ACUA's Comments 1.

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.

26AAR's Comments 20.

27Section 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 § 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 § 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.

28AAR's Comments 20.

29Under 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 § 1155.26(a)(2) to account for the deadlines for the Notice of Intent.

30AAR'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 § 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 § 1155.20(c) has been changed to 49 CFR 1155.24(c).

31AAR'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 § 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 the2011 Decision,published in theFederal Registerat 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,under neither the statute nor the final rules could the Board, on its own, require a party to apply for a Board permit.See49 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.See49 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 theFederal 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
§ 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.

§ 1155.2 Definitions.

(a) Unless otherwise provided in the text of these regulations, the following definitions apply in this part:

(1)Commercial and retail wastemeans material discarded by stores, offices, restaurants, warehouses, nonmanufacturing activities at industrial facilities, and other similar establishments or facilities.

(2)Construction and demolition debrismeans 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 wastemeans material discarded by residential dwellings, hotels, motels, and other similar permanent or temporary housing establishments or facilities.

(5)Industrial wastemeans 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. 6921et seq.), mining or oil and gas waste.

(6)Institutional wastemeans 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 wastemeans 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 wastemeans 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 activitytakes 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)Sludgemeans 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 termshousehold waste, commercial and retail waste,andinstitutional wastedo 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 permitmeans 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
§ 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.

§ 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.

§ 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.

§ 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
§ 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 timerequirements 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.See49 U.S.C. 10909(h); 49 CFR 1155.24(c).

§ 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