[Federal Register Volume 75, Number 155 (Thursday, August 12, 2010)]
[Notices]
[Pages 49022-49023]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-19896]


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DEPARTMENT OF TRANSPORTATION

Surface Transportation Board

[Docket No. FD 35380]


San Luis & Rio Grande Railroad--Petition for a Declaratory Order

AGENCY: Surface Transportation Board, DOT.

ACTION: Institution of declaratory order proceeding; request for 
comments.

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SUMMARY: In response to a petition filed by the San Luis & Rio Grande 
Railroad (SLRG), the Board is instituting a declaratory order 
proceeding under 5 U.S.C. 554(e) and 49 U.S.C. 721 to determine whether 
the Board's jurisdiction preempts the land use code of Conejos County, 
Colo. (County) that might otherwise apply to SLRG's proposed operation 
of a containerized truck-to-rail solid waste transload facility at 
Antonito, Colo. No responses to the petition have been filed. As 
discussed below, the Board will provide SLRG an opportunity to 
supplement its filing and will seek public comments in response, with a 
particular focus on, but not limited to, issues related to the Clean 
Railroads Act of 2008, 49 U.S.C. 10501(c)(2), 10908-10910 (CRA).

DATES: SLRG's opening statement is due August 27, 2010. Comments are 
due September 27, 2010. SLRG's reply to comments is due October 12, 
2010.\1\
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    \1\ SLRG's petition included a proposed expedited schedule for 
presentation of evidence and legal argument. Because of the novel 
issues raised in this proceeding, however, the Board has chosen to 
seek public comment. A decision in the matter will be issued after 
thorough consideration of all submissions.

ADDRESSES: Filings may be submitted either via the Board's e-filing 
format or in traditional paper format. Any person using e-filing should 
attach a document and otherwise comply with the instructions at the E-
FILING link on the Board's Web site at http://www.stb.dot.gov. Any 
person submitting a filing in the traditional paper format should send 
an original and 10 copies referring to Docket No. FD 35380 to: Surface 
Transportation Board, 395 E Street, SW., Washington, DC 20423-0001. In 
addition, one copy of each comment filed in this proceeding must be 
sent (and may be sent by e-mail only if service by e-mail is acceptable 
to the recipient) to SLRG's representative, John D. Heffner, 1750 K 
Street, NW., Suite 200, Washington, DC 20006. When SLRG files its reply 
to comments, one copy of that filing must be sent (and may be sent by 
e-mail only if service by e-mail is acceptable to the recipient) to 
each commenter.
    Copies of written comments will be available for viewing and self-
copying at the Board's Public Docket Room, Room 131, and will be posted 
to the Board's Web site. FOR FURTHER INFORMATION, CONTACT: Joseph H. 
Dettmar, (202) 245-0395. [Assistance for the hearing impaired is 
available through the Federal Information Relay Service (FIRS) at (800) 
877-8339.]

SUPPLEMENTARY INFORMATION: SLRG's petition for declaratory order 
concerns its transload facility in the County. SLRG explains that it 
has hired a contractor, Alcon Construction, Inc. (Alcon), to operate 
the facility. According to SLRG, Alcon intends to transfer sealed 
containers or bags of contaminated dirt from trucks originating at Los 
Alamos National Laboratory in New Mexico to railcars. SLRG would then 
transport the dirt from Antonito to an interchange with Union Pacific 
Railroad at Walsenburg, Colo., for movement to its final destination at 
Clive, Utah. SLRG states that Alcon would function as its agent and 
that SLRG would be responsible for marketing, liabilities, expenses, 
safety, security, and compliance with applicable laws.
    There has been citizen opposition to the facility, and SLRG's 
efforts to reach an agreement with the County have failed. According to 
SLRG, County officials have indicated that compliance with the local 
land use code could take an indefinite amount of time. The facility is 
ready, and SLRG had planned to begin operations there on May 25, 2010. 
The County, however, filed a complaint on May 24, 2010, in County 
Court, Conejos County, seeking to enjoin operations at the facility. 
That complaint has since been removed to Federal court, where it 
remains pending. In the complaint, the County claims that SLRG has 
violated the County's land use code.
    SLRG seeks an order from the Board declaring that, due to Federal 
preemption under 49 U.S.C. 10501(b), the facility is not subject to the 
County's land use code. According to SLRG, the facility meets the 
requirements for Sec.  10501(b) preemption because the proposed 
activities are transportation and they would be performed under the 
auspices of a rail carrier. SLRG argues that transportation includes 
activities integrally related to transportation, such as its plans here 
to load, unload, and temporarily store materials. Further, SLRG asserts 
that it is a rail carrier, as the Board authorized it to acquire and 
operate a line of railroad in 2003.
    In addition, petitioner argues that the proposed operations at its 
facility are not subject to the CRA, which, if applicable, would 
restrict the Board's jurisdiction over the facility. See 49 U.S.C. 
10501(c)(2)(B), 10908-10910. First, SLRG argues that the dirt would 
remain in its original shipping containers (sealed bags) and that the 
CRA only applies to activities outside of original shipping containers. 
49 U.S.C. 10908(e)(1)(H)(i). Second, SLRG claims that the dirt is not 
subject to the CRA because it is ``government-generated dirt'' as 
opposed to industrial waste.
    Under 5 U.S.C. 554(e), the Board has discretionary authority to 
issue a declaratory order to terminate a controversy or remove 
uncertainty. As there is a controversy here, a declaratory order 
proceeding is being instituted to obtain supplemental information from 
petitioner and to invite public comment on the issues. Filings should 
focus particularly on whether SLRG's containers are original shipping

[[Page 49023]]

containers under Sec.  10908(e)(1)(H)(i) and whether the dirt SLRG 
plans to transload and transport is subject to the CRA, but evidence 
and argument are not limited to those issues.
    Board decisions, notices, and filings in this and other Board 
proceedings are available on our Web site at http://www.stb.dot.gov.

    Decided: August 6, 2010.
    By the Board, Rachel D. Campbell, Director, Office of 
Proceedings.
Kulunie L. Cannon,
Clearance Clerk.
[FR Doc. 2010-19896 Filed 8-11-10; 8:45 am]
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