[Federal Register Volume 78, Number 56 (Friday, March 22, 2013)]
[Notices]
[Pages 17752-17763]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2013-06625]
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DEPARTMENT OF TRANSPORTATION
Surface Transportation Board
[Docket No. FD 30186]
Tongue River Railroad Company, Inc.--Rail Construction and
Operation--In Custer, Powder River and Rosebud Counties, Mont.
AGENCY: Lead: Surface Transportation Board; Cooperating: U.S. Army
Corps of Engineers, U.S. Bureau of Land Management, U.S. Department of
Agriculture, Montana Department of Natural Resources and Conservation
(acting as lead agency for other Montana State agencies).
ACTION: Notice of Availability of the Final Scope of Study for the
Environmental Impact Statement.
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SUMMARY: On October 16, 2012, Tongue River Railroad Company, Inc.
(TRRC) filed a revised application with the Surface Transportation
Board (Board) pursuant to 49 U.S.C. 10901 in Docket No. FD 30186. TRRC
intended to construct and operate \1\ an approximately 83-mile rail
line between Miles City, Montana, and two ending points, one near the
site of the previously planned Montco Mine near Ashland, Montana, and
another at the proposed Otter Creek Mine in the Otter Creek area east
of Ashland, Montana. On November 1, 2012, the Board issued a decision
requesting additional information from TRRC. On December 17, 2012, TRRC
filed a supplemental application that supersedes the October 16, 2012
application. As discussed in the supplemental application, TRRC
modified its proposal by identifying its preferred routing for the
proposed line as the Colstrip Alterative between Colstrip, Montana, and
Ashland/Otter Creek, Montana. On January 8, 2013, the Board issued a
decision accepting TRRC's supplemental application and later denied a
request to reconsider that decision and reject the supplemental
application in a decision served on February 26, 2013. The purpose of
the proposed line is to transport low sulfur, sub-bituminous coal from
proposed mine sites in Rosebud and Powder River Counties, Montana.
Because the construction and operation of this project has the
potential to result in significant environmental impacts, the Board's
Office of Environmental Analysis (OEA) has determined that the
preparation of an Environmental Impact Statement (EIS) is appropriate
pursuant to the National Environmental Policy Act of 1969 (NEPA), as
amended (42 U.S.C. 4321 et seq.).
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\1\ TRRC has stated that the proposed line would be constructed
by TRRC and would be operated by BNSF Railway Company (BNSF).
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To help determine the scope of the EIS, and as required by the
Board's regulations at 49 CFR 1105.10(a)(2), OEA published in the
Federal Register on October 22, 2012, a Notice of Intent to Prepare an
Environmental Impact Statement, Notice of Availability of the Draft
Scope of Study, Notice of Scoping Meetings, and Request for Comments.
OEA also prepared and distributed to the public a postcard that
introduced TRRC's proposed rail line, announced OEA's intent to prepare
an EIS, and gave notice of scoping meetings to residents of Powder
River, Custer, and Rosebud Counties. In addition, OEA sent letters to
elected officials, federal, state, and local agencies, tribal
organizations, and other potentially interested organizations providing
similar information. OEA held ten public scoping meetings in Lame Deer,
Forsyth, Ashland, and Miles City, Montana, on November 12, 13, 14, 15,
and 16, 2012. On November 30, 2012, OEA extended the scoping comment
period from December 6, 2012 to January 11, 2013 in response to a
number of requests for an extension and because the Board's November 1,
2012 decision had required TRRC to file additional information by
December 17, 2012.
The U.S. Army Corps of Engineers (Corps), the U.S. Bureau of Land
Management (BLM), the U.S. Department of Agriculture (USDA) and the
Montana Department of Natural Resources Conservation (DNRC), acting as
lead agency for other Montana State agencies, are participating as
cooperating agencies in the preparation of the EIS. OEA is also
consulting with tribes and other agencies, including the Northern
Cheyenne Tribe, the U.S. Environmental Protection Agency (USEPA), and
the Montana Department of Environmental Quality (MDEQ).
After review and consideration of all comments received, this
notice sets forth the Final Scope of the EIS. The Final Scope reflects
additions and changes to the Draft Scope as a result of comments
received during the scoping comment period. The Final Scope also
summarizes and addresses the principal environmental concerns raised by
the comments on the Draft Scope and explains if and how these issues
will be addressed in the EIS.
FOR FURTHER INFORMATION CONTACT: Ken Blodgett, Office of Environmental
Analysis, Surface Transportation Board, 395 E Street SW., Washington,
DC 20423, or call OEA's toll-free number for the project at 1-866-622-
4355. Assistance for the hearing impaired is available through the
Federal Information Relay Service (FIRS) at 1-800-877-8339. For further
information about the Board's environmental review process and this
EIS, please visit the Board's Web site at www.stb.dot.gov or the Board-
sponsored project Web site at www.tonguerivereis.com.
Background: In 1986, the Board's predecessor agency, the Interstate
Commerce Commission (ICC), gave approval to TRRC's predecessor to build
and operate an 89-mile rail line between Miles City, Montana, and two
termini located near Ashland, Montana, a proceeding known as Tongue
River I.\2\ The purpose of the line was to serve proposed new coal
mines in the Ashland area. In 1996, the Board authorized TRRC to build
a contiguous 41-mile rail line from Ashland to Decker, Montana, in
Tongue River II.\3\ In 2007, the Board authorized TRRC to build and
operate the Western Alignment, a 17.3-mile alternate route for a
portion of the route already approved in Tongue River II in a
proceeding known as Tongue River III.\4\ The ICC/Board's environmental
staff, now OEA, prepared EISs in all three proceedings.
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\2\ Tongue River R.R.--Rail Constr. and Operation--In Custer,
Powder River and Rosebud Cntys., Mont. (Tongue River I), FD 30186
(ICC served Sept. 4, 1985), modified (ICC served May 9, 1986), pet.
for judicial review dismissed, N. Plains Res. Council v. ICC, 817
F.2d 758 (9th Cir.), cert. denied, 484 U.S. 976 (1987).
\3\ Tongue River R.R.--Rail Constr. and Operation--Ashland to
Decker, Mont. (Tongue River II), 1 S.T.B. 809 (1996), pet. for
reconsid. denied (STB served Dec. 31, 1996).
\4\ Tongue River R.R.--Rail Constr. and Operation--Ashland to
Decker, Mont. (Tongue River III), FD 30186 (Sub-No. 3) (STB served
Oct. 9, 2007), pet. for reconsid. denied (STB served Mar. 13, 2008).
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Petitions for review of Tongue River II and Tongue River III were
filed in the United States Court of Appeals for the Ninth Circuit, and,
in 2011, the court affirmed in part, and reversed and remanded in part,
those decisions for additional environmental review.\5\
[[Page 17753]]
Although the Tongue River I proceeding was not before the court, the
Board determined that the court's decision required the Board to
revisit the environmental analysis for Tongue River I because the Board
had conducted a cumulative impacts analysis for the entire line in
Tongue River III and had made the resulting mitigation conditions
applicable to the entire line in its Tongue River III decision. TRRC
subsequently informed the Board that it no longer intended to build the
Tongue River II and Tongue River III portions of the railroad.
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\5\ See N. Plains Res. Council v. STB, 668 F.3d 1067 (9th Cir.
2011).
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On June 18, 2012, the Board issued a decision dismissing the Tongue
River II and Tongue River III proceedings and reopening Tongue River
I.\6\ As explained in more detail in that decision (which is available
on the Board's Web site at www.stb.dot.gov), the Board required TRRC to
file a revised application that presents the railroad's current plans
to build a rail line between Miles City and Ashland, Montana. In
addition, the Board decided to conduct a new environmental review
rather than a supplemental environmental review based on the three
prior environmental reviews that began in the 1980s. The Board found
that a new EIS (including a new scoping process) is appropriate given
the passage of time since Tongue River I was decided, the railroad's
failure to begin construction of any part of this proposed railroad and
other changes that have taken place, the nature of the court's partial
remand, and the fact that most of the Board's more recent environmental
analysis pertains to Tongue River II or Tongue River III, neither of
which the railroad still proposes to build. The Board also stated that
a new EIS will encourage and facilitate public participation.\7\
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\6\ Tongue River R.R.--Rail Constr. & Operation--In Custer,
Powder River & Rosebud Cntys., Mont., FD 30186 et al. (STB served
June 18, 2012).
\7\ Id. at 9-10.
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In its revised application filed on October 16, 2012, TRRC proposed
to go forward with the Tongue River I project, although in modified
form.\8\ After reviewing the submission, the Board, in a decision
served on November 1, 2012, clarified that the Board's review in this
proceeding would include not only the new environmental review of the
entire construction project, but also an examination of the
transportation merits supporting the entire Tongue River I line.\9\ The
November 1, 2012 decision also directed TRRC to supplement the revised
application to provide a sufficient record for the Board's review,
including additional evidence and argument in support of the
transportation merits. Finally, the decision established a new
procedural schedule for filings on the transportation merits
appropriate for this proceeding and required that TRRC publish notices
consistent with that decision. On December 17, 2012, TRRC filed a
supplemental application intended to supersede the October 16, 2012
filing. TRRC explained that, in its October 16, 2012 application, it
had proposed the construction of a line between Miles City, Montana,
and Ashland/Otter Creek, Montana, following a line similar to that
approved by the ICC in Tongue River I in 1986. However, TRRC identified
a different routing, known as the Colstrip Alignment, as its preferred
alignment in its December 17, 2012 supplemental application.\10\ The
supplemental application was accepted by the Board in a decision issued
on January 8, 2013. On January 7, 2013, Northern Plains Resource
Council and Rocker Six Cattle Company filed a petition to reconsider
that decision and reject TRRC's supplemental application, which the
Board denied on February 26, 2013. The Board also extended the
procedural schedule for filing comments on the transportation merits.
Under the Board's revised schedule, comments on the transportation
merits of the supplemental application will be due by April 2, 2013,
and a reply by TRRC will be due by May 16, 2013.
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\8\ Although the decision granting Tongue River I authorized the
construction of an 89-mile line, TRRC described the line in its
October 16, 2012 filing as being approximately 83 miles in length,
based on refinements that would straighten and shorten the
alignment.
\9\ The Board's review of construction applications is governed
by 49 U.S.C. 10901, its regulations at 49 CFR 1150.1-1150.10, and
the requirements of NEPA and related environmental laws.
\10\ The ICC had examined a variation on the Colstrip Alignment
as a potential route in Tongue River I. The Colstrip Alignment was
also identified as a potential alternative alignment at the scoping
meetings held by the Board in November 2012 in the project area.
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Environmental Review Process: The NEPA process is intended to
assist the Board and the public in identifying and assessing the
potential environmental impacts of a proposed action before a decision
on the proposed action is made. OEA is responsible for ensuring that
the Board complies with NEPA and related environmental statutes.
ICF International, OEA's independent third-party contractor, is
assisting in the environmental review process, pursuant to 49 CFR
1105.10(d). OEA is directing and supervising the preparation of the
EIS. The Corps, BLM, USDA, and Montana DNRC, acting as lead agency for
other Montana State agencies, are cooperating agencies, pursuant to 40
CFR 1501.6. The Board will decide whether or not to grant authority to
TRRC to construct and operate the proposed rail line pursuant to 49
U.S.C. 10901. The Corps will decide whether or not to issue permits
pursuant to Section 404 of the Clean Water Act (33 U.S.C. 1251-1376, as
amended) and/or Section 10 of the Rivers and Harbors Act of 1899 (33
U.S.C. 403). BLM will decide whether or not to issue a right-of-way
(ROW) grant for BLM-administered lands under Title V of the Federal
Land Policy and Management Act of 1976 (43 U.S.C. 1737). Portions of
some of the alternatives under consideration would cross the USDA
Livestock and Range Research Laboratory (LARRL) located near Miles
City, Montana. The crossing of LARRL land would require an easement
from USDA. Montana DNRC, acting as lead agency for other Montana State
agencies, will ensure the State's environmental concerns are addressed
in a manner consistent with the Montana Environmental Policy Act
(MEPA). In addition, portions of some of the alternatives being
considered would cross state lands and require an easement from the
State of Montana. The EIS will include the information necessary for
the Board, the Corps, BLM, USDA and Montana DNRC to make their final
decisions under the authorities discussed above. OEA is also working
closely with tribes and other agencies, including the Northern Cheyenne
Tribe, USEPA, and MDEQ, the state agency responsible for preparing
documentation for the proposed Otter Creek Mine, pursuant to MEPA.
As part of the NEPA review, OEA is gathering and analyzing
environmental information and data that will be used to compare the
potential environmental effects of possible rail alignments and the
``no action'' alternative in the EIS. This includes conducting aerial
and on-the-ground environmental surveys. To complete this survey work,
OEA must first get permission from landowners to access properties
located along each of the alternatives under consideration. OEA has
already begun this process of requesting access by sending letters to
landowners and hopes to receive positive responses from landowners. If
OEA is unable to secure property access from landowners, OEA's ability
to gather information by on-the-ground surveys may be limited.
After issuance of this Final Scope, OEA and the cooperating
agencies will prepare a Draft EIS (DEIS) for the proposed line. The
DEIS will identify
[[Page 17754]]
the potential environmental impacts from the proposed rail line and
alternatives, and address those environmental issues identified during
the scoping process and detailed in this Final Scope. It will also
discuss a reasonable range of alternatives to the proposed action,
including a no-action alternative, and recommend environmental
mitigation measures, as appropriate.
The DEIS will be made available upon its completion for public
review and comment and review and comment by other agencies. A Final
EIS (FEIS) will then be prepared that will respond to the public and
other agency comments received on the DEIS and include further analysis
by OEA and the cooperating agencies, if needed. In reaching their final
decisions in this case, the Board and the cooperating agencies will
take into account the full environmental record, including the DEIS,
the FEIS, and all public and agency comments received.
Purpose and Need: TRRC has stated that the principal purpose of the
construction and operation of the proposed rail line is to transport
low sulfur, sub-bituminous coal from mine sites developed in Rosebud
and Powder River Counties, Montana, including proposed mines in the
Otter Creek area.\11\ In its December 17, 2012 supplemental application
and in response to an information request from OEA,\12\ TRRC has stated
that U.S. domestic electric utilities, specifically those in Montana
and possibly the Midwest, represent the prime demand potential for
Otter Creek coal. In addition, TRRC states that additional coal
tonnages could be transported to export markets, which TRRC identifies
as markets in Asia and Europe, through U.S. ports along the Atlantic,
Pacific, Great Lakes or Gulf Coasts. Because, TRRC reasons, the
construction and operation of the proposed rail line is several years
in the future and the coal market is highly volatile, it is impossible
for TRRC to define its target markets with greater specificity.
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\11\ TRRC supplemental application at 6.
\12\ OEA's information request and TRRC's response are available
both on the Board's Web site, www.stb.dot.gov, and on the Board-
sponsored project Web site, www.tonguerivereis.com.
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The proposed project involves an application by TRRC for a license
or approval from the Board. The proposed project is not a federal
government-proposed or sponsored project. Thus, the project's purpose
and need should be informed by both the private applicant's goals and
the agency's enabling statute here, 49 U.S.C. 10901.\13\ Section 10901
provides that the Board must approve a construction application unless
it finds that the construction is ``inconsistent with the public
convenience and necessity.''
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\13\ See Alaska Survival v. STB, 705 F.3d 1073, 1084-85 (9th
Cir. 2013).
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Proposed Action and Alternatives: NEPA regulations require federal
agencies to consider a reasonable range of feasible alternatives to the
proposed action. The President's Council on Environmental Quality
(CEQ), which oversees the implementation of NEPA, has stated in Forty
Most Asked Questions Concerning CEQ's National Environmental Policy Act
Regulations that ``[R]easonable alternatives include those that are
practical or feasible from the technical and economic standpoint and
using common sense * * *.'' \14\ In this EIS, OEA will consider a full
range of feasible alternatives that meet the purpose and need of the
project, as well as the no-action alternative.
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\14\ Forty Most Asked Questions Concerning CEQ's National
Environmental Policy Act Regulations, 46 FR 18026 (1981), Question
2a.
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Major elements of the proposed project would include a single track
constructed of continuous-welded rail; a 200-foot-wide ROW; one passing
siding with 8,500 foot clear length; and three set-out tracks between
500 feet and 4,000 feet in length to provide for temporary storage of
cars requiring repair and for storage and clearing of maintenance
equipment. TRRC anticipates that train traffic on the proposed rail
line would consist of 26 round trips per week, or 3.7 loaded 150 car
unit coal trains daily on average, with 7.4 trains per day total (empty
and loaded).\15\ The proposed rail line would carry approximately 20
million tons of coal annually. The EIS will analyze and compare the
potential impacts of (1) Construction and operation of the proposed
rail line, (2) a reasonable range of feasible alternative routes, and
(3) the no-action alternative (denial of the application).
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\15\ TRRC supplemental application, Exhibit D at 2.
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Alternatives To Be Carried Forward In The EIS: Based on analysis
conducted to date, OEA has determined that the reasonable and feasible
alternatives that will be analyzed in detail in the EIS are:
Tongue River Alternative--This alternative (TRRC's original
preferred alignment) would follow the Tongue River between Miles City,
Montana, and two terminus points south of Ashland, Montana, see Final
Scope Figures 1 and 2 (all figures are available for viewing on the
Board's Web site at www.stb.dot.gov and on the Board-sponsored project
Web site at www.tonguerivereis.com). It would begin at the existing
BNSF rail line between the Miles City Fish Hatchery and Spotted Eagle
Lake, proceeding south along the west side of the Tongue River and
crossing through the LARRL. Approximately 10 miles north of Ashland,
Montana, this alternative would cross the Tongue River and continue
south. After crossing Otter Creek approximately 3 miles southeast of
Ashland, it would branch into two spurs. One spur would follow the
Tongue River Valley approximately 7 miles south to Terminus Point 1
near the site of the previously planned Montco Mine Terminus 1). The
other spur would follow the Otter Creek approximately 5 miles south to
Terminus Point 2 at the proposed Otter Creek Mine (Otter Creek Spur).
Colstrip Alternative--This alternative would extend from the
existing BNSF line, known as the Colstrip Subdivision, at Colstrip,
Montana towards Ashland, see Final Scope Figures 1 and 2. TRRC would
upgrade the existing BNSF line to current main line standards. The
Colstrip Subdivision connects with the Forsyth Subdivision at Nichols
Wye, approximately 6 miles west of Forsyth and approximately 50 miles
west of Miles City. This alternative would cross Cow Creek and Rosebud
Creek as it heads south and east, following the Greenleaf Creek Valley
to the Rosebud Creek/Tongue River divide. From there it would descend
into the Tongue River Valley and join the Tongue River Alternative at
the Tongue River crossing north of Ashland. This alternative is TRRC's
preferred alignment based on its supplemental application.
Tongue River Road Alternative--This alternative would depart Miles
City along the Tongue River Alternative route, and continue along that
alternative to a point just north of Pumpkin Creek, see Final Scope
Figures 1 and 2. There it would cross the Tongue River, turn south and
continue along the east side of the river to rejoin the Tongue River
Alternative about 10 miles north of Ashland.
Moon Creek Alternative--This alternative would start at the BNSF
main line approximately 8 miles southwest of Miles City, and run south
and southeast along the east side of Moon Creek to the divide
separating the Tongue River and Yellowstone River drainages, see Final
Scope Figures 1 and 2. From there, the alternative would descend to the
Tongue River Valley floor and join the Tongue River Alternative about
14 miles south of Miles City. This alternative would cross the LARRL
through its far southwest corner.
[[Page 17755]]
Other Alternatives Under Consideration: The following additional
alternatives and variations were identified and developed during the
preparation of this Final Scope as a result of comments received from
the public during the scoping comment period and an additional review
of the project area for potential alternatives conducted by OEA.\16\
OEA is considering whether or not to carry these alternatives forward
for more detailed analysis in the EIS. If any of the following
alternatives are eliminated from detailed study, the DEIS will explain
the reasons why they were eliminated in accordance with 40 CFR
1502.14(a).
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\16\ OEA has also revisited other alternatives that were
eliminated from detailed study in the Tongue River I EIS and has
determined that the issues raised at that time, such as challenging
grade or large amounts of cut and fill, are still valid. Moreover,
OEA received no comments during the scoping comment period
requesting that the Board reconsider any of the alternatives
previously eliminated in the Tongue River I EIS. Therefore, these
alternatives will continue to be treated as not reasonable and
feasible, and they will not receive any detailed analysis in this
EIS.
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As noted above, TRRC has stated that it no longer intends to build
the portions of the rail line approved in Tongue River II and Tongue
River III. However, because the Board has approved a route from
Ashland, Montana to Decker, Montana in the past, and several commenters
suggested that we consider routes going south from Ashland during
scoping, OEA will examine the two southern alignments described below
to determine whether or not to carry these alternatives forward for
more detailed analysis in the EIS.
Decker 1 Alternative--Several scoping comments suggested that OEA
consider routes going south from the Ashland, Montana area to the
Decker, Montana area in this EIS. This alternative would depart from
Terminus Point 2 at the proposed Otter Creek Mine, and follow the Otter
Creek approximately 5 miles north along the same route used for the
Otter Creek Spur and then travel southwest generally paralleling the
Tongue River through Terminus Point 1, see Final Scope Figures 1 and 3.
It would run along the eastern side of the Tongue River and pass
through the Wolf Mountains Battlefield National Historic Landmark. From
there it would cross to the west side of the Tongue River and continue
to its connection with the BNSF rail line via the Spring Creek Railroad
Spur near Decker, Montana. This alternative is identical to the
alignment from Ashland to Decker including the Western Alignment that
was approved in Tongue River III.
Decker 2 Alternative--In addition to the Decker 1 Alternative, a
new alternative heading south from Ashland to Decker, not considered in
previous Tongue River proceedings, was developed in an effort to
consider a southern route that would avoid the Wolf Mountains
Battlefield National Historic Landmark (as shown on existing maps).
This alternative would be almost identical to the Decker 1 Alternative.
However, it would cross from the east to the west side of the Tongue
River just north of Birney. It would pass west of the Wolf Mountains
Battlefield National Historic Landmark and, with the exception of a
short segment approximately 3 miles north of the Tongue River Dam, this
alternative would continue on the west side of the Tongue River for the
remainder of its course, see Final Scope Figures 1 and 3.
Alternative Variations: Alternative variations are short sections
of rail alignments that could be used to replace segments of the
alternatives discussed in the previous section. Two potential
alternative variations that will be considered in the EIS have been
developed to date.
Ashland East Variation--The Ashland East Variation was developed in
response to a scoping comment from the Northern Cheyenne Tribe
requesting an alternative as far as possible from the eastern
Reservation boundary and the Tongue River, see Final Scope Figures 1
and 4. It could be used to replace segments of the Tongue River
Alternative, Tongue River Road Alternative, Moon Creek Alternative,
and/or the Colstrip Alternative. Starting at its northern end, this
variation would connect to the Colstrip Alternative where it begins to
curve to the south, at a location just east of its crossing with the
Tongue River Road. The Ashland East Variation would connect to the
Tongue River Alternative approximately 0.8 miles east of the
intersection of Greenleaf Road and Tongue River Road. From there, the
Ashland East Variation would continue east for approximately 3 miles
before curving to the south. This variation would generally parallel
the Tongue River, but would be offset to the east at distances ranging
from approximately 2 miles to 4 miles. To lower the grade for the Otter
Creek crossing, it would include a gradual westward bulge which would
be located approximately 2 miles from Ashland at its closest point. The
variation would pass approximately 2 miles east of Ashland before
connecting to the Otter Creek Spur, and either Terminus 1 Variation or
Terminus 1 through a wye track approximately 2.5 miles northwest of
Terminus Point 2.
Terminus 1 Variation--The Terminus 1 Variation was designed in
response to scoping comments from the Northern Cheyenne Tribe
requesting an alternative as far as possible from the eastern
Reservation boundary and the Tongue River, see Final Scope Figures 1
and 4. This variation would start at a point approximately 1.8 miles
southeast of the proposed Terminus Point 1. From there, it would travel
northeast, largely paralleling the spur leading to Terminus Point 1
before joining with the Ashland East Variation. The Terminus 1
Variation connects to the Ashland East Variation and from there could
connect to any of the northern alternatives (i.e., Tongue River,
Colstrip, Tongue River Road and Moon Creek alternatives) and could also
connect to the southern alternatives (i.e., Decker 1 and 2
alternatives).
Alternatives Considered But Eliminated From Detailed Study: Based
on analysis conducted to date, OEA has determined that the following
two alternatives are not reasonable and feasible and will not be
carried forward for detailed analysis in the EIS.
212 to 59 to Gillette Alternative--This route was developed in
response to a scoping comment requesting that an alternative be
considered that would transport the coal east by rail along Highway
212, before turning south at Highway 59 and connecting to the existing
rail line near Gillette, Wyoming. The total length of this alternative
is approximately 138 miles. OEA has determined that this is not a
reasonable and feasible alternative based on the challenges that would
be posed by the undulating terrain and the costs and environmental
impacts that would be associated with the significantly longer length
of the route.
Otter Creek Alternative--This route was developed in response to a
scoping comment requesting that an alternative be considered that would
follow the Otter Creek south and connect with the existing BNSF
mainline somewhere between Sheridan and Gillette, Wyoming. The route
would run south up the Otter Creek drainage through Custer National
Forest to the Montana-Wyoming border, at which point it would turn to
the southwest and continue for approximately 30 miles before reaching
the existing BNSF mainline near the town of Clearmont, Wyoming. OEA has
determined that this is not a reasonable and feasible alternative based
on the excessive changes in elevation and the steep grade along the
route.
Public Participation, Agency Consultation and Government-to-
Government Consultation: As part of the
[[Page 17756]]
environmental review process to date, OEA has conducted broad outreach
to inform the public, federally recognized tribes, and agencies about
the proposed action and to facilitate participation in the NEPA
process. OEA consulted with, and will continue to consult with federal,
state, and local agencies, tribes, affected communities and all
interested parties to gather and disseminate information about the
proposal. As part of that process, OEA has initiated government-to-
government consultation with federally-recognized Tribal Governments to
seek, discuss, and consider the views of the tribes regarding the
proposed action and alternatives. In addition, OEA intends to hold
meetings in the vicinity of the project area to address potential
project impacts to cultural resources during the EIS process.
Defining the Project Area: A challenging issue presented by TRRC's
proposal is how to define the project area. The vast majority of
scoping comments addressing the destination of the coal presumed that
coal carried on TRRC's proposed line would eventually be carried to
ports proposed for development in the Pacific Northwest, and then onto
electric utilities in Asia. According to TRRC, some coal may be used
for electricity generation within Montana, it may move some coal to the
Midwest, and it may export some coal to Asia and to Europe via ports
widely spread throughout the country. The coal market, TRRC asserts, is
so volatile that more accurate predictions are impossible.
In most rail construction and operation proposals, the applicant-
railroad defines the potential market areas that it intends to
transport goods to and from. OEA then is able to assess potential
environmental impacts within a defined geographic area. Here, the
potential geographic area is vast. Commenters from Washington State are
concerned about impacts from increased coal train traffic, including
the potential addition of TRRC coal trains, within their state.
Commenters from Oregon, including Senator Ron Wyden and the Oregon
Department of Environmental Quality, have similar concerns that their
state would suffer adverse impacts from potential increased coal train
traffic, specifically through the Columbia River Gorge. Government
officials and residents of Billings and Missoula, Montana are concerned
with the potential for congestion and pollution that additional train
traffic associated with the TRRC proposal could bring to their
communities.
In preparing the EIS, OEA will use modeling and other available
information to project economically reasonable and feasible
transportation movements. OEA will define a project area in the EIS
that will inform the public, enable all interested parties to
participate in the environmental review process, and disclose the
potential impacts of TRRC's proposal to the Board so that it can take
the requisite hard look at the environmental effects before making a
fully informed decision in this case.
Summary of Scoping Comments: OEA received more than 2,500 comments
on the Draft Scope, of which most of the comments were form letters
that contained the same general content as other letters already
received. Of the remaining public comments, more than 500 were written
comments, and approximately 150 were oral comments delivered during the
public scoping meetings. Comments were submitted by federal, state, and
local agencies, tribes, interested groups, elected officials, and
individual citizens. In preparing this Final Scope, OEA considered all
of the comments received. The Final Scope of Study reflects changes to
the Draft Scope as a result of these comments. Additional changes from
the Draft to the Final Scope were made for clarification or because of
additional analysis conducted by OEA. In developing additions and
modifications to the Final Scope, OEA has summarized and considered the
comments by first dividing them into two broad categories: procedural
issues and environmental resource issues.
Procedural Issues
Reopening the Scoping Process. Commenters requested that
the Board issue a new Notice of Intent and reopen the public scoping
period as a result of the changes that were made to TRRC's preferred
alternative in its December 17, 2012 supplemental application. Because
TRRC's new preferred alignment, the Colstrip Alternative, was
specifically identified as a potential alternative in the Draft Scope
of Study and OEA held scoping meetings in Forsyth, Montana, near the
Colstrip alternative's connection with the BNSF Forsyth Subdivision
main line, OEA has determined that the scoping process provided
sufficient notice of this potential alternative and the ability of the
public to provide input on it and will not reopen the scoping period.
Moreover, OEA had previously extended the comment period on the Draft
Scope from December 6, 2012 to January 11, 2013.
Programmatic EIS. Several commenters suggested that OEA
prepare a programmatic EIS that evaluates allegedly related proposals,
e.g., the proposed coal terminals in Washington State and Oregon. CEQ
guidance suggests the preparation of a programmatic EIS when an agency
evaluates broad policies, plans, or programs. Here, however, the
decision before the Board is whether or not to grant TRRC authority to
construct and operate a proposed rail line pursuant to 49 U.S.C. 10901.
The Board does not have jurisdiction over the alleged related proposals
and thus, has not been asked to approve any such proposals. Moreover,
where there is no programmatic plan proposed for the extraction of
resources in a region, a programmatic EIS is not required.\17\
Therefore, a project-specific EIS is the appropriate approach. OEA
will, however, examine any actions in the project area that may impact
the same environmental resources as the proposed project as part of its
cumulative impacts analysis in the EIS.
---------------------------------------------------------------------------
\17\ Kleppe v. Sierra Club, 427 U.S. 390, 408-415 (1976).
---------------------------------------------------------------------------
Public Information. Commenters requested more detailed
maps than those distributed during scoping. All available maps to date
can be found on the Board-sponsored project Web site at
www.tonguerivereis.com, including the Final Scope Figures referenced in
this document. Additional maps may be generated during the preparation
of the EIS. Any new or updated maps will be presented to the public in
the DEIS and/or FEIS.
Cooperating Agencies. The Northern Cheyenne Tribe
requested information during scoping about cooperating agency status
and about obtaining funding to facilitate its participation in the NEPA
process. A cooperating agency is defined as any federal or state agency
or tribe that has jurisdiction by law or special expertise with respect
to any environmental impact involved in a proposed project. 40 CFR
1501.6. As defined by the CEQ regulations, ``special expertise'' means
statutory responsibility, agency mission, or related program
experience. 40 CFR 1508.26. In addition, ``when the effects are on a
reservation, an Indian Tribe, may by agreement with the lead agency
become a cooperating agency.'' 40 CFR 1501.5.
As previously noted, OEA has invited 4 agencies to be cooperating
agencies that have decision-making authority independent of the Board,
are agencies from which TRRC must obtain separate approvals or permits,
and/or the proposed line would cross that agency's land. The purpose of
having these agencies serve as cooperating agencies is
[[Page 17757]]
to help these agencies fulfill their regulatory responsibilities and
functions and to avoid duplicative environmental analysis.
OEA understands the importance of working closely with the Northern
Cheyenne Tribe throughout every step of the EIS process. The Northern
Cheyenne Tribe has explained to OEA that the tribe is responsible for
ensuring that the air quality and water quality on the Northern
Cheyenne Reservation comply with the Clean Air and Clean Water Act.
Moreover, OEA has already initiated consultation with the Northern
Cheyenne Tribe through the EIS process. OEA has concluded, however,
that because neither the applicant's preferred alignment nor any of the
alternatives summarized above cross the Northern Cheyenne Reservation,
and because the Northern Cheyenne Tribe does not need to issue a
license or a permit for the proposed rail line; the Northern Cheyenne
Tribe does not meet the definition stated above of a cooperating
agency. OEA also lacks the ability to provide any funding to the
Northern Cheyenne Tribe or any other tribe to facilitate their
participation. Nevertheless, OEA has and will continue to consult with
the Northern Cheyenne Tribe and other tribes. OEA is committed to
working closely with the Northern Cheyenne Tribe and other tribes, will
continue to keep the tribes informed and involved, and will continue to
seek input from the Northern Cheyenne Tribe and other tribes throughout
the EIS process.
Government-to-Government Consultation. Commenters
requested that OEA engage affected tribes in government-to-government
consultation. For example, the Northern Cheyenne Tribe requested that
the EIS evaluate water rights associated with the Indian Homestead Act.
USEPA requested that OEA engage in meaningful government-to-government
consultation with the Northern Cheyenne, the Crow, and several bands of
the Sioux Nation. Another commenter recommended that OEA conduct
substantial, on-going, in-person consultation with affected federally-
recognized tribes and that planning for the DEIS should be conducted in
consultative partnership with affiliated tribes, to guarantee essential
tribal involvement throughout the EIS process. OEA has contacted the
Northern Cheyenne, the Crow, and bands of the Sioux Nation to determine
which tribes would like to engage in government-to-government
consultation with the Board. OEA expects that government-to-government
consultation with interested tribes will help to identify and evaluate
potential effects from the TRRC proposal to tribal lands, rights,
resources, religious or cultural sites, and subsistence activities.
The Board's Procedures and Jurisdiction. Commenters raised
concerns regarding the Board's jurisdiction and the merits of the
public need for the proposed project.
[cir] Public Convenience and Necessity. Commenters questioned
whether the proposed action would meet the ``public convenience and
necessity'' standard in 49 U.S.C. 10901 when the purpose and need of
the project is only to serve a privately-owned coal mine. Additionally,
commenters felt that the proposed action would not serve the public
interest, especially if the coal is exported to foreign markets.
The Board's review of the TRRC proposal consists of two processes--
consideration of (1) the transportation merits under 49 U.S.C. 10901 of
the Interstate Commerce Act, and (2) the environmental impacts under
NEPA and related environmental laws. The comments concerning the
``public convenience and necessity'' and public interest regarding the
proposal relate to the transportation merits review by the Board. Under
49 U.S.C. 10901(c) of the Interstate Commerce Act, the Board must
approve a proposal to construct or operate a rail line unless it finds
that such activities are inconsistent with the ``public convenience and
necessity.'' The statute does not define ``public convenience and
necessity'' but historically, the Board has evaluated whether there is
a public demand or need for the proposed service; whether the applicant
is financially able to undertake the construction and provide rail
service; and whether the proposal is in the public interest and will
not unduly harm existing services. The interests of shippers are
accorded substantial importance in assessing the public interest.
Safety and environmental concerns are also considered and weighed
against transportation concerns in evaluating the public interest. When
the environmental review here is completed and the Board decides
whether to authorize the proposed line, it will consider arguments
raised by commenters that the TRRC proposal is inconsistent with ``the
public convenience and necessity.''
[cir] Eminent Domain. Commenters expressed concern over just
compensation if the proposed rail line were to traverse their land and
the railroad's ability to use eminent domain to acquire land. In Board-
approved rail construction cases, it is the railroad's responsibility
to acquire land it needs to implement the approved project under state
law. If the railroad needs to acquire property associated with a Board-
approved line by using condemnation (also known as eminent domain) it
must do so in accordance with the State of Montana's railroad
condemnation law. The Board plays no role in any eminent domain
proceedings and does not approve or disapprove any condemnation of
private property under state law.
Proposed Action. Commenters suggested that if the Colstrip
Alternative was determined to be infeasible in the previous Tongue
River I EIS, it would not be feasible today. But while the Tongue River
I EIS determined that the Colstrip Alternative had a higher grade
against load compared to other alternatives considered (0.85 percent
versus 0.2 percent), the Tongue River I EIS did not determine, at that
time, that the Colstrip Alternative was infeasible; rather it was not
selected as the preferred alternative because it was a longer route to
TRRC's then-identified target markets in the Midwest.
Many commenters raised concerns about the portion of the proposed
line from Ashland to the previously planned Montco Mine (i.e., Terminus
1). Commenters suggested that the development of the Montco Mine is not
reasonably foreseeable because there is currently no surface mine
permit pending. As part of its analysis in the EIS, OEA will consider
this issue.
Purpose and Need. Commenters suggested that TRRC's
information regarding the purpose and need for the proposed action is
based on speculation regarding coal mine feasibility and global and
domestic coal markets. Commenters remarked that domestic demand for
coal has decreased in favor of natural gas and the most logical
destination for the Otter Creek Coal would be to foreign markets. As
discussed above, TRRC has indicated a possibility for some portion of
the Otter Creek coal to find markets overseas, including markets in
Asia and Europe, through ports along the Atlantic, Pacific, Great
Lakes, and Gulf Coasts, as well as to coal-fired power plants in the
United States. OEA will conduct an analysis to determine if TRRC's
projections are reasonable, given the available information, and will
present the results of its analysis in the EIS.
Environmental Resource Issues
Analysis of Transportation Systems. Commenters requested
that the EIS analyze the potential transportation routes for coal
export from coal transported on the proposed line. Commenters requested
that road traffic
[[Page 17758]]
delays be considered at road/rail grade crossings as a result of
increased transaction-related rail traffic. Commenters also requested
that the EIS evaluate rail line congestion. For the Colstrip
Alternative, commenters requested that the EIS consider potential
impacts to area roads and public access roads. In addition, commenters
requested that the EIS evaluate the ability of the proposed rail line
to carry additional resource commodities, such as timber and grain.
Commenters requested that the EIS analyze impacts associated with the
proposed paving and possible expansion of Tongue River Road.
USEPA commented that the EIS should include analysis of potential
impacts of increased transaction-related rail traffic on existing rail
lines and the impacts of more frequent coal trains on communities in
Montana and beyond. USEPA also requested that the EIS provide details
on TRRC's projected daily peak and average train traffic.
The Draft Scope of Study has been revised to reflect that the EIS
will evaluate the potential downline rail traffic congestion as well as
road traffic congestion at road/rail grade crossings resulting from
increased transaction-related rail line traffic. The EIS will describe
the existing road/rail grade crossing delay and analyze the potential
for an increase in delay related to the proposed rail operations. The
EIS will evaluate the potential paving and expansion of Tongue River
Road as a cumulative impact. The EIS will consider whether the other
issues raised by commenters should be addressed in the EIS, and if so,
analyze them as appropriate.
Analysis of Safety Impacts. Commenters requested that the
EIS examine potential safety issues, including accidents at grade
crossings, fires, livestock loss, and train derailment. Commenters also
requested that the EIS examine the potential delay of emergency service
vehicles at grade crossings due to the increase in train traffic and
potential collisions with trucks transporting hazardous materials.
Additionally, commenters requested that the EIS analyze public safety
impacts from coal train traffic on the proposed line as well as an
increase in coal train traffic on existing rail lines that may move
coal from the Otter Creek area. The EIS will evaluate potential impacts
of TRRC's preferred route and each alternative on road/rail grade
crossing safety and analyze the potential for an increase in accidents
related to the proposed new rail operations. The EIS will also describe
projected rail operations and analyze the potential for increased
probability of accidents, including derailments due to the proposed
action. The Draft Scope of Study has been revised to reflect that the
EIS will evaluate the potential for disruption and delays to emergency
vehicles and evaluate the potential for fires and livestock loss. The
EIS will consider whether the other issues raised by commenters should
be addressed in the EIS, and if so, analyze them as appropriate.
Analysis of Land Use.
[cir] Agricultural Lands. Several commenters requested that the EIS
evaluate the potential impacts to agricultural lands, including
ranchlands, access to water and grazing pastures for livestock, impacts
to cattle crossings, access to irrigation systems, and access to roads.
The Draft Scope of Study has been revised to reflect that the EIS will
evaluate impacts to these agricultural lands.
[cir] Potential Section 4(f) properties. The Montana Department of
Transportation requested that the EIS identify and evaluate potential
impacts to resources protected under the U.S. Department of
Transportation (USDOT) regulation known as ``Section 4(f).'' Section
4(f) provides that USDOT agencies cannot approve the use of land from
publicly owned parks, recreational areas, refuges, or historical sites
except under certain conditions. The Board is an independent agency
organizationally housed within USDOT. Its governing statute is the
Interstate Commerce Act and not the Department of Transportation Act,
49 U.S.C. 1653(f) (1970). Therefore, the Board is not subject to
Section 4(f) requirements. However, the Federal Highway Administration
(FHWA) is a USDOT agency subject to the Section 4(f) requirements. An
underpass at Interstate 94 would need to be built for the Tongue River
Road, Tongue River, and Moon Creek Alternatives (should the Board
approve one of these alternatives), which would require approval from
FHWA in coordination with the Montana Department of Transportation.
Therefore, the Draft Scope of Study has been revised to reflect that
the EIS will analyze potential impacts to Section 4(f) properties that
may be located near Interstate 94 along the Tongue River Road, Tongue
River, and Moon Creek Alternatives.
Analysis of Recreation. Commenters requested that the EIS
evaluate potential impacts to recreational activities, including
hunting, fishing, and canoeing. Commenters requested that the EIS also
evaluate impacts to Montana Fish, Wildlife, and Parks (MFWP)
Conservation Easements and Block Management properties. Additionally,
many commenters were concerned about impacts to recreation areas near
Miles City resulting from increased train operations. The Draft Scope
of Study has been revised to reflect that the EIS will evaluate these
issues.
Analysis of Biological Resources.
[cir] Fisheries. Commenters requested that the EIS analyze the
potential impacts to the Miles City Fish Hatchery, the Tongue River
dam, and the Tongue and Yellowstone River ditches. The Final Scope
reflects that the EIS will evaluate impacts to the Miles City Fish
Hatchery, the Tongue River dam and the Tongue and Yellow River ditches,
as appropriate.
[cir] Birds. Commenters requested that potential impacts to birds
be analyzed in the EIS. Specifically, the U.S. Fish and Wildlife
Service (USFWS) requested that ground and aerial surveys be conducted
along the different alternatives' right-of-ways in compliance with the
Migratory Bird Treaty Act and the Bald and Golden Eagle Protection Act.
Additionally, one commenter requested the EIS examine potential impacts
to burrowing owls, short-eared owls, mountain plovers, and ferruginous
hawks. The Draft Scope of Study has been revised to reflect that the
EIS will include appropriate aerial and ground surveys along the
alternatives in compliance with the Migratory Bird Treaty Act and the
Bald and Golden Eagle Protection Act.\18\ The EIS will consider whether
the other issues raised by commenters should be addressed in the EIS,
and if so, analyze them as appropriate.
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\18\ As discussed above, OEA's ability to conduct these surveys
depends on landowner permission to access properties located along
the alternatives under consideration.
---------------------------------------------------------------------------
[cir] Wildlife. Commenters requested that the EIS analyze potential
impacts of the proposed action to wildlife migration corridors and
breeding grounds along with impacts to wildlife as a result of
wildlife-train collisions along the proposed rail line and
alternatives. The Draft Scope of Study has been revised to reflect that
the EIS will analyze impacts to wildlife migration corridors and
breeding grounds, along with impacts to wildlife as a result of
wildlife-train collisions along the proposed rail line and
alternatives.
[cir] Vegetation. USFWS requested the development and
implementation of a comprehensive restoration plan to address
temporarily disturbed areas, in particular the native grassland,
[[Page 17759]]
sagebrush-steppe, and riparian areas. Commenters also requested that a
detailed vegetative habitat mapping survey be conducted. These requests
will be considered in the EIS, as appropriate.
[cir] Threatened and Endangered Species. USFWS requested that the
EIS evaluate potential impacts to the Black-footed Ferret, Pallid
Sturgeon, Interior Least Tern, Whooping Crane, Greater Sage-Grouse
(candidate species), and Sprague's Pipit (candidate species).
Additionally, USFWS requested that a biological assessment be
conducted. The Draft Scope of Study has been revised to reflect that
the EIS will evaluate impacts to the Black-footed ferret, Pallid
Sturgeon, Interior Least Tern, Whooping Crane, Greater Sage-Grouse
(candidate species), and Sprague's Pipit (candidate species) and
include a biological assessment for threatened and endangered species.
[cir] Noxious Weeds. Commenters raised concerns associated with the
spread of noxious weeds resulting from the construction and operation
of the proposed rail line. The Draft Scope of Study has been revised to
reflect that the EIS will analyze potential impacts from the spread of
noxious weeds.
Analysis of Water Resources.
[cir] Groundwater and Surface Water. USEPA requested that the EIS
analyze potential impacts to water quantity such as changes in stream
flow, additional uses of surface or groundwater, groundwater
depletions, and reductions in groundwater recharge. MFWP requested that
the proposed action maintain the connectivity of prairie streams and
rivers to minimize impacts to the area fisheries and study the
potential alterations to stream and bank morphology as well as
potential sediment impacts from erosion and cut and fill operations.
Commenters also requested that the EIS examine where the water needed
for construction and operation would be sourced and what impact the
proposed action would have on water access for area ranchers and
farmers. One commenter requested that the EIS evaluate impacts
resulting from pollution runoff into any streams listed under Clean
Water Act Section 303d in the project area. The Draft Scope of Study
has been revised to reflect that the EIS will evaluate these issues.
[cir] Floodplains. One commenter requested that the EIS include a
flood analysis of the construction impacts from the proposed rail line
and alternatives on Miles City. Commenters requested that the EIS
evaluate potential impacts to irrigation structures along the Tongue
River. The Draft Scope of Study has been revised to reflect that the
EIS will evaluate potential floodplain impacts from the proposed rail
line and alternatives on Miles City and that the EIS will evaluate
potential impacts to irrigation structures along the Tongue River.
[cir] Stream Morphology. USEPA suggested that the EIS include an
analysis of potential impacts to the stream morphology of the Tongue
River and Otter Creek, existing and proposed artificial bank
stabilization structures, agricultural practices adjacent to the water
bodies, constrictions placed on the river channel and floodplain,
fluvial geomorphology, bank stabilization and floodplains, and bank
destabilization. The Draft Scope of Study has been revised to reflect
that the EIS will assess potential impacts to geomorphology of the
Tongue River and Otter Creek. The EIS will consider whether the other
issues raised by commenters should be addressed in the EIS, and if so,
analyze them as appropriate.
[cir] Water Quality. USEPA requested that the EIS utilize existing
models to review reasonably foreseeable water quality impacts in the
U.S. from coal combustion; summarize existing water quality conditions;
evaluate the potential water quality impacts from the proposed rail
line and alternatives and potential area mines; and include information
about water quality standards, potential discharge from the proposed
railroad and potential area mines, and impaired water bodies in the
State of Montana and the Northern Cheyenne Reservation. The Draft Scope
of Study has been revised to reflect that the EIS will consider USEPA
guidance documents concerning non-point source pollution and the USEPA
Water Quality Assessment for the Tongue River and will include
information concerning State of Montana and Northern Cheyenne Tribe
water quality standards. The EIS will consider whether the other issues
raised by USEPA should be addressed in the EIS, and if so, analyze them
as appropriate.
[cir] Wetlands. The Corps recommended that a Draft 404(b)(1)
analysis be performed and included as part of the EIS. USEPA requested
that the EIS include an analysis of the potential impacts to wetlands
and riparian habitats. The Draft Scope of Study has been revised to
reflect that the EIS will include an analysis of the potential impacts
to wetlands and riparian habitats and include information to support a
Draft 404(b)(1) analysis.
Analysis of Navigation. Commenters requested that the EIS
evaluate the impacts of the construction and operation of the railroad
on navigability of water bodies. The EIS will include an analysis of
potential impacts to navigation.
Analysis of Geology and Soils. Several commenters
requested an analysis of alluvial valley floors, soil erosion, prime
farmland, and reclamation activities. One commenter expressed concern
about atmospheric deposition of rail traffic emissions on soil,
including accumulation of Polycyclic Aromatic Hydrocarbons (PAH) and
heavy metals. The EIS will evaluate potential mine reclamation
activities as cumulative impacts. The Draft Scope of Study has been
revised to reflect that the EIS will evaluate the potential atmospheric
deposition of rail traffic emissions on soil including the possible
accumulation of PAH and heavy metals from the proposed line.
Analysis of Air Quality and Visibility.
[cir] Emissions Analysis. USEPA recommended that the EIS utilize
existing models to review reasonably foreseeable air quality impacts in
the U.S. from combustion of the coal transported by the proposed line.
USEPA also recommended that the EIS discuss practices in use at coal
mines in the Powder River Basin for reducing NOX emissions
from blasting activities, utilize far-field and potentially also near-
field air quality modeling to assess potential impacts to Class I areas
and visibility because of the proximity to the Northern Cheyenne Class
I airshed, as well as the proposed railroad and mines' potential
contributions to cumulative impacts on air quality-related values
(AQRVs), resources that may be adversely affected by a change in air
quality, such as visibility in Class I areas and sensitive Class II
areas based upon cumulative impact air quality modeling previously
conducted by BLM. USEPA recommended that the EIS analyze potential
visibility degradation and incremental consumption under EPA's
Prevention of Significant Deterioration (PSD) permitting program from
the proposed project and cumulative emissions because of the proximity
of the project to sensitive receptor areas and because of previously-
modeled air quality impacts. The Draft Scope of Study has been revised
to reflect that the EIS will examine potential impacts from the
proposed line and any coal mines that the proposed line might serve on
visibility degradation and impacts to the Northern Cheyenne Class I
airshed and Class II sensitive areas, evaluate incremental consumption
under EPA's PSD permitting program for cumulative emissions from the
mines and other activities in the project area and include relevant
information from BLM's
[[Page 17760]]
Resource Management Plan air quality study.
One commenter requested that the EIS determine the impacts of
million tons of coal being shipped to China and burned with limited or
no pollution control devices. While the Board has noted that Supreme
Court precedent suggests that an analysis of impacts related to
activities over which the Board has no authority to regulate and are
not proximately caused by the Board's decision is not required under
NEPA,\19\ the Draft Scope of Study has been revised to reflect that the
EIS will include an appropriate air quality analysis of the combustion
of the coal transported by the proposed TRRC line. The EIS will also
evaluate the air quality impacts from mining activities at the coal
mines that would produce coal to be carried on the proposed TRRC line
as cumulative impacts. The EIS will consider whether the other issues
raised by commenters should be addressed in the EIS, and if so, analyze
them as appropriate.
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\19\ Tongue River R.R. Co., Inc.--Constr. And Operation--Western
Alignment, FD 30186 (Sub-No. 3) at 10 n.21 (STB served June 15,
2011).
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[cir] Agency Consultation. USEPA recommended that the EIS include
design measures for the coal mines that are likely to be imposed by the
State of Montana into the analysis and identify these measures as
permit-related conditions in the baseline emission inventory. USEPA
recommended that OEA consult with BLM and Montana State agencies on the
project's air quality analysis, the results of the analysis,
identification of available mitigation measures, and any necessary
permitting, as appropriate. The Draft Scope of Study has been revised
to reflect that the EIS will consider Montana State emission controls
required on permitted sources in the baseline cumulative impacts
analysis. BLM and Montana State agencies are cooperating agencies, and
OEA will consult with them on these issues.
[cir] Diesel Emissions. Several commenters requested that the EIS
analyze an increase in air pollution and associated human health
effects from the proposed action. Commenters requested that the EIS
analyze potential public health impacts, including impacts associated
with diesel emissions from locomotives and increased coal train traffic
from the mine sites to the destination facilities. USEPA requested that
the EIS evaluate the potential human health impacts to potentially
affected communities along existing rail lines that may move coal from
the Otter Creek area, including potential impacts associated with
diesel exhaust. The Draft Scope of Study has been revised to reflect
that the EIS will include an appropriate evaluation of the effects on
human health from locomotive diesel emissions.
[cir] Climate Change. Several commenters requested that the EIS
analyze the potential contributions to climate change resulting from
the proposed action. Additionally, commenters requested that the EIS
analyze potential air quality impacts, including climate change,
resulting from the proposed coal export terminals in the Pacific
Northwest. USEPA recommended performing a life cycle greenhouse gas
(GHG) emissions analysis. While the Board has noted that Supreme Court
precedent suggests that an analysis of impacts related to activities
over which the Board has no authority to regulate and are not
proximately caused by the Board's decision is not required under
NEPA,\20\ the Draft Scope of Study has been revised to reflect that the
EIS will include a life-cycle analysis of potential GHG emissions. The
EIS will consider whether the other issues raised by commenters should
be addressed in the EIS, and if so, analyze them as appropriate.
---------------------------------------------------------------------------
\20\ Id.
---------------------------------------------------------------------------
[cir] Coal Dust. Numerous commenters addressed the potential
impacts of coal dust to air quality, human health, and visibility.
Specifically, one commenter requested that the EIS include an analysis
of the potential impacts to the Class I airshed of the Northern
Cheyenne Tribe. Commenters requested that the EIS evaluate the
potential impacts of coal dust emitted from railcars traveling on the
proposed line with and without the use of dust control techniques,
including chemical surfactants, and analyze the chemical composition of
these surfactants. Commenters also requested that the EIS analyze the
potential effects of toxic pollutants, including heavy metals, such as
cadmium, resulting from the emission of coal dust along the proposed
line. These commenters suggested that the EIS include a study of the
potential human health effects from coal dust on communities along the
proposed line, and around coal stock piles in various weather
conditions. USEPA requested that the EIS analyze potential increases in
coal dust that would be associated with transaction-related traffic
along the proposed line and additional rail traffic along existing
lines that may move coal from the Otter Creek area. MFWP commented on
potential effects of coal dust to the Miles City Fish Hatchery. The
Draft Scope of Study has been revised to clarify that the EIS will
include an appropriate evaluation of impacts from coal dust, including
any human health impacts.
Analysis of Noise and Vibration. Several commenters
requested that the EIS analyze potential impacts to people and
structures along the proposed line and alternatives from potential
ground vibrations. Commenters specifically requested a comprehensive
vibration study on the Miles City Fish Hatchery. Several commenters
requested that the EIS analyze the potential impacts of sound and
infrasound (sound below the level of human hearing) from transaction-
related rail traffic. One commenter was concerned about the effects of
vibration on structures such as bridges, retaining walls, homes, ranch
structures, pipelines, and irrigation systems, particularly those areas
with underlying clay soils. The Draft Scope of Study has been revised
to reflect that the EIS will evaluate potential impacts to the Miles
City Fish Hatchery, as appropriate. The EIS will consider whether the
other issues raised by commenters should be addressed in the EIS, and
if so, analyze them as appropriate.
Analysis of Energy Resources. Commenters requested that
the EIS analyze potential impacts to existing and future utility lines
underground and overhead and the impact of the construction and
operation of the proposed line and Otter Creek Mine's energy needs on
the local energy grid. Commenters suggested that the EIS discuss the
current and future coal market and the potential switch to natural gas
and wind power; analyze whether Asia could be a major destination for
Powder River Basin coal; and analyze if China is planning to use
inexpensive coal imported from the U.S. as a bridge fuel until it can
develop renewable energy. Commenters requested that the EIS evaluate
potential impacts from the proposed Young's Creek Mine in Wyoming and
possible expansion of the Decker Mines. The Draft Scope of Study has
been revised to reflect that the EIS will analyze the potential impact
of the proposed action on energy markets and the effect of energy
markets on the proposed action, as appropriate. The EIS will consider
whether the other issues raised by commenters should be addressed in
the EIS, and if so, analyze them as appropriate.
Analysis of Socioeconomics and Environmental Justice.
Commenters requested that the EIS analyze any disproportionate adverse
impacts on
[[Page 17761]]
low-income residents of the Northern Cheyenne Reservation, as well as
the Amish Community in the project area. Specifically, commenters
requested that the EIS analyze potential impacts to the Northern
Cheyenne Reservation's poverty rates, incomes, crime rates,
transportation and safety issues, social services, and healthcare.
Several commenters requested that the EIS analyze the socioeconomic
impacts from an influx of workers in the project area, including demand
for local services. Numerous commenters requested that the EIS
determine the economic costs to agricultural and tourism operations in
the project area. Additionally, several commenters requested that the
EIS evaluate the possibility of potential job creation or job loss,
especially in mining and law enforcement and as a result of potential
coal displacement at the Western Energy mine in Colstrip, Montana. One
commenter requested that the EIS analyze potential impacts to the Town
of Colstrip due to the change in TRRC's preferred alternative. Numerous
commenters requested that the EIS evaluate potential for losses in
property values for landowners along the different alternatives. USEPA
requested that the EIS include a discussion of potential environmental
justice impacts in the air, water, socioeconomics, and traffic
analyses, particularly associating specific resource impacts to
specific communities, including the Northern Cheyenne and the Crow
reservations. The EIS will include an appropriate evaluation of
socioeconomic and environmental justice issues.
Analysis of Cultural and Historic Resources. The Northern
Cheyenne and other commenters requested that the EIS evaluate the
effects of the proposed action on sites and resources of religious and
cultural significance to the Northern Cheyenne Tribe. USEPA commented
that the Northern Cheyenne Tribe considers the Tongue River and the
Tongue River Valley to be places of cultural and spiritual
significance. One commenter encouraged OEA to join the December 5,
2012, Interagency Coordination and Collaboration for the Protection of
Indian Sacred Sites Memorandum of Understanding (MOU), signed by the
Departments of Defense, Interior, Agriculture and Energy and the
Advisory Council on Historic Preservation. That MOU outlines a multi-
point approach to improve the protection of and tribal access to tribal
sacred sites across the country. The commenter recommended that OEA
conduct substantial, on-going, in-person consultation with affected
federally recognized tribes and that new cultural resource surveys
should be conducted in consultative partnership with affiliated tribes.
The commenter also requested that the EIS include a Visual Impact Study
to assess the potential indirect impacts to tribal and other cultural
resources, a cultural resource survey, landscape-level archeological,
historical and architectural surveys (including those for historic
ranches), an ethnographic study, and an archeological survey within the
Area of Potential Effect (APE) for the project in consultation with the
tribes, stakeholders, property-owners and relevant local, state, and
federal agencies. The Draft Scope of Study has been revised to reflect
that the EIS will include an analysis of indirect and visual effects on
cultural and historic resources. The EIS will consider whether the
other issues raised by commenters should be addressed in the EIS, and
if so, analyze them as appropriate.
Analysis of Aesthetics. Commenters requested that the EIS
include a Visual Impact Study to accurately gauge impacts to cultural
resources, and to specifically consider impacts to the Northern
Cheyenne Tribe and Reservation. Commenters requested that the EIS
evaluate the potential impacts from industrialization of an
agricultural area. One commenter suggested using the BLM Visual
Resource Management Manual. The Draft Scope of Study has been revised
to reflect that the EIS will evaluate these issues.
Analysis of Cumulative Impacts. Commenters requested that
the EIS analyze the potential cumulative impacts from the proposed
Otter Creek Mine, coal bed methane and oil and gas development, exports
of Powder River Basin coal to Asian coal markets, and the paving of
Tongue River Road. Commenters also requested that any potential
discharge from existing mines and effects of discharges from existing
mines or runoff into the Tongue River and its tributaries be analyzed
for its potential impacts to water quality including increases in
salinity and sodic water content. USEPA requested that the EIS include
information about the timing and duration of potential mining
activities at the proposed Otter Creek Mine and the previously planned
Montco Mine, as well as the estimated mine acreage that will be
disturbed at any one time. The EIS will evaluate the cumulative and
incremental impacts of the proposed action when added to other past,
present, and reasonably foreseeable future actions in the project area,
including an appropriate analysis of the actions raised by commenters
on the Draft Scope.
Final Scope of Study for the EIS
Environmental Impacts Analysis
Proposed New Construction and Operation
The EIS will address activities associated with the construction
and operation of the proposed rail line and its potential environmental
impacts, as appropriate.
Impact Categories
The EIS will analyze potential direct, indirect, and cumulative
impacts \21\ of the proposed construction and operation of the TRRC
rail line and each reasonable and feasible alternative on the human and
natural environment, as well as the no-action alternative. Impact areas
addressed will include the following: Transportation systems, safety,
land use, recreation, biological resources, water resources (including
wetlands and other waters of the U.S.), navigation, geology and soils,
air quality, noise, energy resources, socioeconomics, cultural and
historic resources, aesthetics (including visual resources) and
environmental justice. The EIS will include a discussion of each of
these impact areas and will address the potential direct, indirect, and
cumulative impacts associated with the proposed action under each
reasonable and feasible alternative and the no-action alternative.
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\21\ NEPA requires the Board to consider direct, indirect, and
cumulative impacts. Direct and indirect impacts are both caused by
the action. 40 CFR 1508.8(a)-(b). A cumulative impact is the
``incremental impact of the action when added to other past,
present, and reasonably foreseeable future actions regardless of
what agency (federal or non-federal) or person undertakes such other
actions.'' 40 CFR 1508.7.
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1. Transportation Systems
The EIS will:
a. Evaluate the potential impacts resulting from TRRC's preferred
route and each alternative \22\ on the existing rail and road network.
This will include analyzing potential impacts for downline rail traffic
congestion, as well as road traffic congestion at road/rail grade
crossings resulting from increased transaction-related traffic, as
appropriate.
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\22\ The term ``alternative'' in this Final Scope refers to
reasonable and feasible alternatives and the no-action alternative.
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b. Describe the existing road/rail grade crossing delay and analyze
the potential for an increase in delay related to the proposed rail
operations, as appropriate.
[[Page 17762]]
c. Propose mitigation measures to minimize or eliminate potential
project impacts to transportation systems, as appropriate.
2. Safety
The EIS will:
a. Evaluate potential impacts of TRRC's preferred route and each
alternative on road/rail grade crossing safety and analyze the
potential for an increase in accidents related to the proposed new rail
operations, as appropriate.
b. Describe projected rail operations and analyze the potential for
increased probability of train accidents including derailments, as
appropriate.
c. Evaluate the potential for disruption and delays to the movement
of emergency vehicles.
d. Evaluate the potential for fires and livestock loss as a result
of TRRC's preferred route and each alternative, as appropriate.
e. Propose mitigation measures to minimize or eliminate potential
project impacts to safety, as appropriate.
3. Land Use
The EIS will:
a. Evaluate potential impacts of TRRC's preferred route and each
alternative on existing land use patterns within the project area and
identify those land uses, including agricultural, that would be
potentially affected by the proposed new rail line.
b. Analyze the potential impacts associated with each alternative
to land uses identified within the project area, for example, impacts
to ranching and other agricultural usage such as access to water and
grazing pastures for livestock, impacts to cattle crossings, access to
roads, and access to irrigation systems. Such potential impacts may
include incompatibility with existing land use and conversion of land
to railroad use.
c. Identify and evaluate potential impacts to resources protected
under the USDOT Section 4(f) regulation that may be located near
Interstate 94 along the Tongue River Road, Tongue River and Moon Creek
Alternatives.
d. Propose mitigation measures to minimize or eliminate potential
impacts to land use, as appropriate.
4. Recreation
The EIS will:
a. Evaluate existing conditions and the potential impacts of the
construction of TRRC's preferred route and each alternative, and their
operation, on recreational trails, MFWP Conservation Easements and
Block Management properties, recreation areas near Miles City, and
other recreational opportunities in the project area.
b. Propose mitigation measures to minimize or eliminate potential
project impacts on recreational opportunities, as appropriate.
5. Biological Resources
The EIS will:
a. Evaluate the existing biological resources within the project
area, including vegetative communities, wildlife, fisheries, wetlands,
and federal and state threatened or endangered species (including
candidate species), and analyze the potential impacts to these
resources resulting from TRRC's preferred route and each alternative.
For example, the EIS will include appropriate aerial and ground surveys
along TRRC's preferred route and each alternative in compliance with
the Migratory Bird Treaty Act and the Bald and Golden Eagle Protection
Act and a biological assessment for threatened and endangered species.
The EIS will evaluate impacts to the Black-footed Ferret, Pallid
Sturgeon, Interior Least Tern, Whooping Crane, Greater Sage-Grouse
(candidate species), and Sprague's Pipit (candidate species). The EIS
will also evaluate potential impacts to the Miles City Fish Hatchery,
the Tongue River Dam, and the Tongue and Yellowstone River ditches, as
appropriate. The EIS will analyze the impacts of the proposed action
and alternatives on wildlife migration corridors and breeding grounds
along with impacts to wildlife as a result of wildlife-train collisions
along TRRC's preferred route and each alternative.
b. Evaluate the potential for the spread of noxious weeds resulting
from TRRC's preferred route and each alternative.
c. Identify and describe any wildlife sanctuaries, refuges, or
rearing facilities; national or state parks, forests, or grasslands;
critical, unique, or high-value habitats that support threatened or
endangered species; and riparian habitats; and evaluate the potential
impacts to these resources resulting from TRRC's preferred route and
each alternative.
d. Propose mitigation measures to avoid, minimize, or compensate
for potential impacts to biological resources, as appropriate.
6. Water Resources
The EIS will:
a. Describe the existing surface water and groundwater resources
within the project area, including lakes, rivers, streams, stock ponds,
wetlands, and floodplains, and analyze the potential impacts on these
resources resulting from the construction and operation of TRRC's
preferred route and each alternative.
b. Evaluate potential floodplain impacts from the proposed rail
line and alternatives on Miles City.
c. Evaluate potential impacts to irrigation structures along the
Tongue River.
d. Consider USEPA guidance documents concerning non-point source
pollution.
e. Consider the USEPA Water Quality Assessment for the Tongue
River.
f. Consider and include information concerning State of Montana and
Northern Cheyenne Tribe water quality standards.
g. Assess potential impacts of the project to geomorphology of the
Tongue River and Otter Creek.
h. Evaluate potential impacts to water quantity such as changes in
stream flow, additional uses of surface or groundwater, groundwater
depletions, and reductions in groundwater recharge; describe the
connectivity of prairie streams and rivers and study the potential
alterations to stream and bank morphology as well as potential sediment
impacts from erosion and cut and fill operations; examine the sources
for the water needed for the proposed construction and operations and
what impact the proposed action will have on water access for area
ranchers and farmers; and evaluate impacts resulting from pollution
runoff into any 303d listed streams in the project area.
i. Describe the permitting requirements for the railroad's
preferred route and each alternative with regard to wetlands, stream
and river crossings, water quality, floodplains, and erosion control.
Include an analysis of the potential impacts to wetlands and riparian
habitats and include information to support a Draft 404(b)(1) analysis.
j. Propose mitigation measures to avoid, minimize, or compensate
for potential project impacts to water resources, as appropriate.
7. Navigation
The EIS will:
a. Identify existing navigable waterways within the project area
and analyze the potential impacts on navigability resulting from TRRC's
preferred route and each alternative.
b. Propose mitigation measures to minimize or eliminate potential
impacts to navigation, as appropriate.
8. Geology and Soils
The EIS will:
a. Describe the geology, soils and seismic conditions found within
the
[[Page 17763]]
project area, including unique or problematic geologic formations or
soils, prime farmland, and hydric soils, and analyze the potential
impacts on these resources resulting from construction and operation of
TRRC's preferred route and each alternative.
b. Evaluate potential measures that could be employed to avoid or
to construct through unique or problematic geologic formations or
soils.
c. Evaluate the potential atmospheric deposition of rail traffic
emissions on soil, including the possible accumulation of Polycyclic
Aromatic Hydrocarbons (PAH) and heavy metals from the proposed line.
d. Propose mitigation measures to minimize or eliminate potential
project impacts to geology and soils, as appropriate.
9. Air Quality
The EIS will:
a. Evaluate the potential air quality impacts resulting from the
proposed new rail line and the proposed operations, as well as
combustion of the coal proposed to be transported on the TRRC line, as
appropriate.
b. Evaluate the air emissions associated with the proposed action,
including coal dust and diesel emissions from locomotives and the
potential associated human health effects, as appropriate.
c. Include a life-cycle analysis of potential GHG emissions.
d. Include relevant information from BLM's Resource Management Plan
air quality study and other relevant cumulative impact studies, as
appropriate.
e. Examine potential impacts of the proposed line and any coal
mines that the proposed line might serve on visibility degradation and
impacts to the Northern Cheyenne Class I airshed and sensitive Class II
areas.
f. Evaluate incremental consumption under EPA's Prevention of
Significant Deterioration (PSD) permitting program for cumulative
emissions from the mines and other activities in the project area, as
appropriate.
g. Consider Montana State emission controls required on permitted
sources in the baseline cumulative impacts analysis.
h. Propose mitigation measures to minimize or eliminate potential
project-related impacts to air quality, as appropriate.
10. Noise and Vibration
The EIS will:
a. Describe the potential noise and vibration impacts during rail
line construction resulting from TRRC's preferred route and each
alternative.
b. Describe the potential noise and vibration impacts of new rail
line operation resulting from TRRC's preferred route and each
alternative.
c. Evaluate the potential noise and vibration impacts to the Mile
City Fish Hatchery, as appropriate.
d. Propose mitigation measures to minimize or eliminate potential
project impacts to sensitive noise and vibration receptors, as
appropriate.
11. Energy Resources
The EIS will:
a. Describe and evaluate the potential impact of the proposed line
on the distribution of energy resources resulting from TRRC's preferred
route and each alternative, including petroleum and gas pipelines and
overhead electric transmission lines.
b. Describe and evaluate potential impacts of the proposed action
on energy markets and the effect of energy markets on the proposed
action.
c. Propose mitigation measures to minimize or eliminate potential
project impacts to energy resources, as appropriate.
12. Socioeconomics
The EIS will:
a. Analyze the socioeconomic effects of the proposed action,
including effects of a potential influx of construction workers to the
project area as a result of the proposed action and the potential
increase in demand for local services.
b. Propose mitigation measures to minimize or eliminate potential
project-related adverse impacts to social and economic resources, as
appropriate.
13. Cultural and Historic Resources
The EIS will:
a. Identify historic buildings, structures, sites, objects, or
districts eligible for listing on or listed on the National Register of
Historic Places (NRHP) within the Area of Potential Effect (APE) for
TRRC's preferred route and each alternative and analyze potential
project-related impacts to them.
b. In consultation with federally-recognized tribes participating
in the Section 106 process, identify properties of traditional
religious and cultural importance to tribes and prehistoric or historic
archaeological sites evaluated as potentially eligible, eligible, or
listed on the NRHP (archaeological historic properties) within the APE
for TRRC's preferred route and each alternative, and analyze potential
project-related impacts to them, including indirect visual effects.
c. Propose measures to avoid, minimize, or mitigate potentially
adverse project-related impacts to Traditional Cultural Properties
(TCPs) and built-environment (e.g., buildings), archaeological historic
properties, and cultural and historic resources, as appropriate.
14. Aesthetics
The EIS will:
a. Describe the potential visual impacts of the proposed rail line
in the project area, including visual impacts to cultural resources,
the Northern Cheyenne Reservation, and agricultural areas.
b. Evaluate the need to use the BLM Visual Resource Management
Manual.
c. Propose mitigation measures to minimize or eliminate potential
project impacts on aesthetics, as appropriate.
15. Environmental Justice
The EIS will:
a. Evaluate the potential impacts resulting from construction and
operation of TRRC's preferred route and each alternative on minority
and low-income populations.
b. Propose mitigation measures to minimize or eliminate potential
project impacts on environmental justice populations, as appropriate.
16. Cumulative Impacts
The EIS will evaluate the cumulative and incremental impacts of the
proposed action when added to other past, present, and reasonably
foreseeable future actions in the project area, as appropriate.
Decided: March 19, 2013.
By the Board, Victoria Rutson, Director, Office of Environmental
Analysis.
Jeffrey Herzig,
Clearance Clerk.
[FR Doc. 2013-06625 Filed 3-21-13; 8:45 am]
BILLING CODE 4915-01-P