I. The Prior Proceedings. In December 2003, NET filed its original petition for exemption for authority to acquire, construct and operate track to use in conjunction with a reload facility at the Olin site in Docket No. FD 34391. OEA1 conducted an environmental review and issued an Environmental Assessment (EA) in August 2004, and a Post-EA in December 2004. After issuance of the Post-EA, a number of parties informed the Board that NET had modified its proposed project to include, among other changes, the processing of municipal solid waste (MSW) at the facility without notifying OEA and that therefore, the environmental review was incomplete.
In May 2005, the Board issued a decision dismissing the case without prejudice to NET filing a new petition or application based on its current project plans. The Board concluded that the project had changed significantly from the proposal presented in the petition and that NET had not informed OEA of the changes until after the environmental review had been completed. Because the petition was modified to the point that analysis already performed by the Board became substantially deficient and required extensive revision, the Board found that it was appropriate to terminate the proceeding.2
In December 2005, NET filed its petition for exemption in a new docket, Docket No. FD 34797, for acquisition, construction, and operation authority. NET outlined its plans to rehabilitate the existing track on the property and to construct new sections of track to support a facility to handle construction and demolition debris (C&D) and MSW. Following NET's filing, opposing parties argued that some or all of NET's planned activities would not constitute "rail transportation," and in 2006, a coalition of parties asked the Board to address the threshold issue of the extent of this agency's jurisdiction over the proposed project. Additionally, in 2006, the U.S. Environmental Protection Agency (EPA) added the project site to the National Priorities List (NPL) under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA or Superfund). EPA suggested that, in order to fully address the proposal's effect on potentially contaminated soil and groundwater, the Board defer issuing even a preliminary analysis under NEPA of the potential environmental impacts of NET's proposal until EPA had completed the relevant portion of its Remedial Investigation and Feasibility Study (RI/FS) of the site.
In July 2007, the Board issued a decision finding that NET would, if authorized, become a rail carrier subject to the Board's jurisdiction and thus would need authority to acquire, construct and operate the track. The Board also addressed the extent to which the handling of C&D and MSW would come within the scope of the Board's jurisdiction, but the issue was not decided because the Board deferred environmental review until EPA had completed the relevant portion of its RI/FS Study at the site.3 In May 2016, the Board lifted the deferral after EPA submitted a letter stating that the facts no longer supported continuing to defer the Board's environmental review in the case.4 The Board also directed NET to file an updated petition for exemption in a new sub-docket detailing its current plans for the site.5
II. The Instant Proceeding. On June 24, 2016, NET filed an updated petition for exemption outlining its current proposal with the Board in Docket No. FD 34797 (Sub-No. 1).6 As stated above, NET proposes to acquire, construct and operate track and to construct and operate transloading facilities on and adjacent to the Olin site. NET plans to move goods and materials, including bricks, newspaper, steel, glycols, biofuels, liquid natural gas, vegetable oils, wood chips, sand, and gravel and transload them from rail cars directly onto trucks, into holding tanks, or into a warehouse on site for temporary storage.
1. OEA was formerly known as the Board's Section of Environmental Analysis (SEA).
2. See New Eng. Transrail, LLC-Constr., Acquis., & Operation Exemption-in Wilmington & Woburn, Mass., FD 34391 (STB served May 3, 2005).
3. See New Eng. Transrail, LLC-Constr., Acquis., & Operation Exemption-in Wilmington & Woburn, Mass., FD 34797 (STB served July 10, 2007).
4. See Letter from EPA (Nov. 6, 2015).
5. See 2016 Decision.
6. NET's current plans do not include operating a municipal solid waste transfer station at the facility.