To help familiarize parties with the environmental rules, the Board’s Office of Environmental Analysis has written a series of questions and answers that address key provisions of these regulations. Please note that the term “applicant” includes any person or entity seeking Board action, whether by application, petition, notice of exemption, or any other means that initiates a formal Board proceeding. This guide is presented as only an overview of the environmental rules. A copy of the complete environmental rules is available here.
An environmental impact statement (EIS) will normally be prepared for rail construction proposals with the exception of the construction of certain connecting track. [See 49 C.F.R. § 1105.6(a)]
Environmental assessments (EA) will normally be prepared for the following proposed actions. [See 49 C.F.R. § 1105.6(b)]
Yes. The Board may reclassify or modify the requirements for individual proceedings. In a rail construction case, an applicant may request with written substantiation that an EA rather than an EIS be prepared. For actions generally requiring an EA, the STB may prepare an EIS because of the probability of significant impacts. For actions that normally require no environmental documentation, the Board may decide that because of potential environmental impacts an environmental report is required and an EA or EIS warranted. [See 49 C.F.R. § 1105.6(d)]
An environmental report must be submitted with or prior to the filing of an action for which an EIS or EA is normally required. [See 49 C.F.R. § 1105.6(a) and (b).] However, no environmental report will be required in those cases (e.g., rail constructions) where an independent third-party consultant working under the Board’s supervision has been retained by the applicant to assist OEA in preparing the EIS or EA.
The applicant must serve the following agencies listed under 49 C.F.R. § 1105.7(b):
Yes. In its environmental report the applicant must certify that it has sent copies of the environmental report to the agencies listed under 49 C.F.R. § 1105.7(b) and that it has consulted with all appropriate agencies in preparing the report. Additionally, in a notice of abandonment exemption, the applicant must also certify that it has notified the appropriate state clearinghouse at least 20 days prior to filing the notice.
Any written responses (such as letters and e-mails) received from agencies contacted in preparing the environmental report must be attached to the report. Oral responses from such agencies must be briefly summarized in the report and include the names, titles, and telephone numbers of the person contacted.
In both notices of abandonment and petitions for abandonment exemptions, the applicant must certify that it has published a notice in a newspaper in each county through which the line passes. This notice must alert the public to the proposed abandonment, available reuse alternatives, and how to participate in the Board proceeding. The newspaper notice is not required in regulated abandonment cases. (See sample newspaper notice for abandonment exemptions under 49 C.F.R. § 1105.12.)
Environmental reports should include all of the information specified in 49 C.F.R. § 1105.7(e). The environmental report should also include any required historic report. The required information is listed below:
The Board may waive or modify information requirements when the information is not necessary to evaluate the environmental impacts of the proposed action. [See 49 C.F.R. § 1105.7 (g)]. If some information requested does not apply in a case, the applicant should explain why in the environmental report.
The National Historic Preservation Act (NHPA) requires the Board to consider the effects of certain of its actions on railroad-owned historic properties. To assist the Board in complying with NHPA, each applicant must submit the historic report described in 49 C.F.R. § 1105.8(d) for the following types of action [unless exempted under § 1105.8 (b); see Q. 12]:
The actions exempted from historic review under 49 C.F.R. § 1105.8(b) of the environmental rules include:
If an action is exempt, the applicant must state in its filing the specific exemption that applies and show how the exemption criteria are met. (For example, if the 49 C.F.R. § 1105.8(b)(1) exemption applies, the applicant should specifically reference this exemption and state how it meets the particular exemption criteria; e.g., applicant has no plans to dispose of or alter railroad properties 50 years or older.)
The applicant must send the historic report to the appropriate State Historic Preservation Officer(s) (SHPO) (i.e, the SHPO for each state the rail line goes through), preferably 60 days in advance of its filing, but not later than 20 days prior to the filing with the Board. If an environmental report is required, the historic report should be combined with this document.
The historic report should contain the information required by 49 C.F.R. § 1105.8(d). This information includes the following:
The Board working with the railroads, the State Historic Preservation Officers, and the Advisory Council on Historic Preservation, will do its utmost to ensure that the historic review process is completed in a timely manner. The amount of time, of course, will vary with the nature and scope of the case. Early consultation with the SHPO(s) and a complete historic report will help expedite the process.