SURFACE TRANSPORTATION BOARD

Frequently Asked Questions

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.

1.)  When does the Board normally prepare an environmental impact statement?

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)]

2.)  When does the Board normally prepare an environmental assessment?

Environmental assessments (EA) will normally be prepared for the following proposed actions. [See 49 C.F.R. § 1105.6(b)]

1. Construction of certain connecting track;
2. Abandonment of rail lines;
3. Discontinuance of passenger train service and freight service (except for discontinuances under modified certificates and trackage rights where the affected line will continue to be operated);
4. An acquisition, lease or operation which exceeds the thresholds specified in 49 C.F.R. §§ 1105.7(e)(4) or (5); and
5. A rulemaking, policy statement, or legislative proposal that has the potential for significant environmental impacts.

3.)  What actions are exempted from environmental review?

No environmental documentation will normally be prepared for the following actions (although a historic report may be required under 49 C.F.R. § 1105.8). [See 49 C.F.R. § 1105.6(c)]

1. Actions that do not result in significant changes in carrier operations; e.g., acquisitions, or operations that do not exceed specified environmental thresholds, and transactions involving corporate changes such as issuance of securities. [See 49 C.F.R. § 1105.6(c)(1)(i)-(vi)];
2. Rate, fare and tariff actions;
3. Common use of rail terminals and trackage rights;
4. Discontinuance of rail freight service under a modified certificate;
5. Discontinuance of trackage rights where the affected line will continue to be operated; and
6. A rulemaking, policy statement, or legislative proposal that has no potential for significant environmental impacts. 

4.)  Can actions before the Board be reclassified to require a different type of environmental review (e.g., an EA rather than an EIS)?

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)] 

5.)  When must an applicant submit an environmental report?

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. 

6.)  On whom must the applicant serve copies of its environmental report?

The applicant must serve the following agencies listed under 49 C.F.R. § 1105.7(b):

1. The State Clearinghouse of each state involved (in a notice of exempt abandonment, the appropriate State Clearinghouse must be notified 20 days prior to the notice’s filing under § 1105.7 (c));
2. The State Environmental Protection Agency of each involved state;
3. The State Coastal Zone Management if the activity would affect land or water use within that state’s coastal zone;
4. The head of each county including any Indian reservations through which the line goes;
5. The appropriate regional offices of the Environmental Protection Agency;
6. The U.S. Fish and Wildlife Service;
7. The U.S. Army Corps of Engineers;
8. The National Park Service;
9. The Natural Resources Conservation Service;
10. The National Geodetic Survey; and
11. Any other agencies that have been consulted in preparing the report. 

7.)  Must an applicant certify that it has served the appropriate agencies?

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. 

8.)  How should applicants handle responses from agencies?

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. 

9.)  What type of newspaper notice is required for abandonment exemptions?

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.) 

10.)  Describe the type and scope of information that must be contained in environmental reports?

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:

1. Proposed action and alternatives;
2. Transportation system;
3. Land use;
4. Energy;
5. Air;
6. Noise;
7. Safety;
8. Biological resources;
9. Water;
10. Proposed mitigation; and
11. Certain additional information for rail constructions.

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. 

11.)  When must applicants submit historic reports?

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]:

1. Actions identified in § 1105.6(a), in which an EIS is normally required (see above);
2. Actions identified in § 1105.6(b), in which an EA is normally required (see above); and
3. Certain actions identified in § 1105.6(c) that would result in the lease, transfer or sale of a railroad’s line, sites, or structures. 

12.)  What type of actions are exempt from historic reporting requirements?

The actions exempted from historic review under 49 C.F.R. § 1105.8(b) of the environmental rules include:

1. A sale, lease or transfer of a rail line where rail service will continue; there are no plans to dispose of or alter railroad properties 50 years old or older; and further Board approval is required to abandon any service;
2. A sale, lease or transfer of property between corporate affiliates where there will be no significant change in operations;
3. Trackage rights, common use of rail terminals, common control through stock ownership, or similar action which will not substantially change the level of maintenance of railroad property; and
4. A rulemaking, policy statement, petition for declaratory order, petition for waiver of procedural requirements, or proceeding involving transportation rates or classifications.

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.) 

13.)  When and to whom must an applicant send its historic report?

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. 

14.)  Describe what information is required in the historic report?

The historic report should contain the information required by 49 C.F.R. § 1105.8(d).  This information includes the following:

1. A description of the proposal;
2. Maps and written descriptions of the right-of-way;
3. Photographs;
4. Certain construction information;
5. A brief narrative history of the operations involved;
6. Identification of documents in the carrier’s possession such as engineering drawings; and
7. The railroad’s opinion as to whether the property is eligible for listing in the National Register of Historic Places, etc.
8. A description of any known prior subsurface ground disturbance or fill, environmental conditions that might affect the archaeological recovery of resources, and the surrounding terrain.

Submission of the historic information specified in 49 C.F.R. § 1105.8(d) is critical to conducting the Section 106 historic review process required under the National Historic Preservation Act. 

15.)  How long does the historic review process generally take?

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.