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/\ FW: Draft TRRC MOU

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Sunimerville, Alan
to:
Ken Blodgett
09/21/2012 09:23 AM
Cc:

Vicki Rutson, Danielle Gosselin

Hide Details
From: Summerville, Alan
@icfi.com>
To: Ken Blodgett <blodgettkstb.dot.gov>
Cc: Vicki Rutson <RutsonVstb.dot.gov>, Danielle Gosselin <Gosselindstb.dot.gov>
History: This message has been forwarded.
1 Attachment

Draft TRRC MOU.DOC

Ken,
Following-up on our call this morning, heres the email with the draft MOU.
Alan

From: Coburn, David [mailto: DCoburn@steptoe.coml

Sent: Thursday, September 20, 2012 5:19 PM
To: Vicki Rutson (RutsonV@stb.dot.gov); Summerville, Alan
Cc: Rankin, David T (David.Rankin@BNSF.com); Kaitala, Dava (Dava.Kaitala@BNSF.com);
Evelyn.Kitay@stb.dot.gov
Subject: Draft TRRC MOU

Vicki, Alan Here is the current draft of an MOU for use in connection with the TRRC project.
It uses the standard form that we have used in our STB proceedings, modified only to expand
the conflict of interest provisions in Section III to embrace TRRCs indirect owners and to
reflect that BNSF will be a co-party to the application given its role as operator of the line.

We look forward to your thoughts on this draft.

Vicki, fyi, the business contract between ICE and BNSF (acting on behalf of TRRC to engage
the contractor) has been completed and is awaiting execution.
Regards. David

David H. Coburn
Partner
DCoburnsteptoe.com

Steptoe
+1 202 429 8063 direct
+1 202 262 7306

mobile

Steptoe & Johnson LLP

1330 Connecticut Avenue, NW

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DRAFT SEPT. 20, 2012

MEMORANDUM OF UNDERSTANDING
AMONG
SURFACE TRANSPORTATION BOARD,
TONGUE RIVER RAILROAD COMPANY, INC. AND
ICF INTERNATIONAL

RE:

ENVIRONMENTAL ANALYSIS AND PREPARATION OF APPROPRIATE

ENVIRONMENTAL DOCUMENTS RELATING TO THE CONSTRUCTION
AND OPERATION OF A PROPOSED RAIL LINE BY RAILROAD COMPANY
IN

Introduction and Purpose

A.

Tongue River Railroad Company, Inc. (TRRC or Applicant) intends to file an

Application in Finance Docket No. 30186 seeking authorization from the Surface
Transportation Board (Board) to construct and operate an approximately 80 mile
rail line which would have a northern terminus at an existing BNSF Railway
Company (BNSF) line near Miles City, MT and two southern termini, one near the
site of the previously planned Montco mine near Ashland, MT and another at the
proposed Otter Creek mine in the Otter Creek area east of Ashland, MT. BNSF, a
part owner ofTRRCs parent company, Tongue River Holding Company, LLC,
will be a co-party to the Application with TRRC by virtue ofthe
fact that it
proposes to operate the TRRC line once constructed by TRRC.

B.

In considering the Application, theBoard will consider the potential

environmental impacts resulting from construction and operation of the proposed
rail line and any rail-related alternatives. The Board will be the lead agency for
preparing the environmental documentation required for the project, either an

____________

Environmental Impact Statement or Environmental Assessment, as required by

the National Environmental Policy Act of 1969 (NEPA). Pursuant to 40 C.F.R.
1506.5(c), 49 C.F.R. 1105.4(j), and 1105.10(d), the Board, through its Office of
Environmental Analysis (OEA), has selected and Applicant has agreed to engage,
at Applicants expense, ICF International, a

corporation

(Contractor) as the Independent Third Party Contractor for this proposal.

Contractor shall assist OEA in conducting the environmental review and
preparing the environmental documentation related to the Applicants proposal.
Contractors scope ofwork, approach, and activities shall be under the sole
supervision, direction, and control of OEA.

C.

This Memorandum ofUnderstanding (MOU) summarizes the relationship among

Contractor, Applicant, and OEA; as set forth in applicable regulations and Board
policy, regarding the conditions and procedures each party must follow in
preparing all environmental documentation. This MOU does not supersede or
amend, and is made expressly subject to, the requirements ofNEPA, and, to the
extent applicable, related environmental laws, and 49 C.F.R. Part 1105 and 40
C.F.R. Part 1500.

D.

The Applicant, Contractor, and OEA agree to work within the framework
of this MOU to develop an efficient method to complete the
environmental review for the proposed Application. OEA shall maintain
overall responsibility for the documentation, analysis, methodology,
consultation, and mitigation related to the environmental review process.
OEA shall direct, evaluate, oversee, and approve the environmental review

The

terms environmental documentation and environmental document(s embrace draft, supplemental, and final EAs,
EISs. and any other reports, studies, surveys, or related documents.

-2-

process.
II.

Document Process

OEA will prepare on behalf of the Board, the draft environmental document (EA
or EIS) for agency and public review. OEA will independently draft mitigation,
based on its review ofpotential environmental impacts ofthe project.

IlL

Agreement between Applicant and Contractor

A.

Any contract between Applicant and Contractor, and any subcontracts, shall be
consistent with the provisions of this MOU.

B.

The terms ofthis MOU shall override any contradictory or conflicting terms
regarding the scope and performance of any work to be conducted under any
contract entered into between Applicant and Contractor; provided, however, that
the foregoing shall not limit the rights of Applicant and Contractor to contract on
terms which require that the work be performed cost-effectively.

C.

The contract between Contractor and Applicant shall specifically provide, and
Contractor shall represent, that (1) Contractor and any subcontractors do not and
shall not have any financial or economic interest in Applicant or any entity or
person directly or otherwise affiliated with Applicant (including but not limited to
any of the three entities that own Applicant s parent) except for payment for
services rendered in connection with the preparation of all required environmental
documentation, and except for services rendered pursuant to other agreements not
prohibited by this MOU, and (2) there is no agreement between Applicant, or any
other person or entity and Contractor regarding future employment that is
contingent upon Contractors performance under this contract. Contractor shall
concurrently execute a disclosure statement as mandated by the regulations of the
-3-

Council on Environmental Quality (CEQ) (40 C.F.R. 1506.5(c)) and submit it to

both OEA and Applicant, before beginning any work under OEAs direction. It is
understood that Contractor and any subcontractors have not done any
environmental analysis related to the Application for Applicant, or for any other
person or entity (including but not limited to any ofthe three entities that own
Applicants parent), and, therefore, can be retained as independent third party
contractor(s).

D.

Restrictions on other work:

( 1)

No employee of Contractor or employee of any subcontractor, who is a

part of Contractors core team committed to the environmental review
process for the Application shall engage in (a) other work for Applicant or
any entity or person directly or otherwise affiliated with Applicant
(including but not limited to any ofthe three entities that own Applicants
parent) or (b) any work, relating to the Application, for any other party to
this proceeding during the course ofthis proceeding; and

(2)

No other employee of Contractor or other employee of any subcontractor

shall, unless OEA is provided prior notice of and approves such work,
engage in (a) other work for Applicant or any entity or person directly or
otherwise affiliated with Applicant (including but not limited to any of the
three entities that own Applicants parent), or (b) any work, relating to the
Application before the Board, or any cooperating agencies that may elect
to participate in this process, or any other party to this proceeding during
the course ofthis proceeding.

-4-

E.

Applicant shall bear the costs incurred by Contractor, and by any subcontractor
approved by OEA in accordance with Section III.A, in preparing the required
environmental documentation to implement NEPA and related environmental
laws under the direction of OEA. Applicant agrees to hold harmless and
indemnify the United States ofAmerica and the Board with respect to any and all
claims, demands, causes of action, and the like which may arise in performing the
work under the contract between Contractor and Applicant.

F.

Any contract between Contractor and Applicant shall specifically limit any
remedies available to Contractor or subcontractors upon termination of the
contract to affirmatively relieve the United States of America, the Board, and any
officer, agent, or employee, from any liability from terminating the contract.

Iv.

Contractor Responsibilities
A.

Contractor may engage subcontractors to perform work related to environmental

review ofthe Application, subject to the provisions of Sections III.C and III.D.
All work performed by Contractor or any subcontractors shall be under the sole
direction, control, supervision, and final approval of OEA. Contractor and
subcontractors, if any, will act as the agent(s) of the Board, not Applicant, in
performing its/their duties.

B.

Contractor shall provide:

(1)

Appropriate expertise in the areas of environmental concern (including,

but not limited to air quality, wetlands, biological resources, geotechnical
resources, hydrology, land use, safety, noise, social and economic, and
cultural/historic resources);

(2)

A good working knowledge of environmental laws, applicable laws and

regulations (including environmental regulations) administered or
-5-

promulgated by the Board, CEQ regulations and guidelines, other

applicable federal regulations, state laws and regulations, and applicable
local ordinances and regulations;
(3)

The capability to perform environmental impact analysis and prepare

appropriate environmental documentation;

(4)

Thorough, readable, technically sound, and informative environmental

documents, as well as related charts, maps, diagrams, etc.;

(5)

Representatives to attend and/or facilitate meetings with Federal, state,

regional, and local agencies, other interested parties and Applicant for the
purpose of exchanging and obtaining information, explaining the
Application and related environmental concerns and impacts, and
receiving comments in preparing the required environmental
documentation;

(6)

Expertise in data management;

( 7)

Assistance to OEA in ensuring that the data collection, analyses, and

methodologies for the environmental documents are complete, accurate,
and relevant to OEAs needs for the environmental review of the
Application under NEPA.

C.

Contractor shall maintain and provide OEA upon request:

(1)

Adequate record-keeping and reporting systems to assure preservation of

all data gathered, including surveys, studies, etc;

(2)

Logs summarizing all telephone calls, meetings, document reviews, and

other substantive communications with OEA, Applicant, local
governments, governmental agencies, citizens groups, and any other
interested parties; and

( 3)

Lists of all agencies, other railroads, citizens groups, organizations, and

-6-

individuals (including their respective addresses and telephone numbers)

contacted in preparing the environmental documentation.

D.

Contractor shall perform the work in a timely, responsive, satisfactory, and costeffective manner, pursuant to a work schedule developed with OEA in
coordination with Applicant and approved by OEA.

E.

Contractor shall assist OEA in coordinating the exchange of all relevant

environmental information and technical data/studies related to the Application
and all required environmental documentation among OEA staff, Applicants staff
and representatives, Contractor, and any subcontractors.

F.

Contractor will submit directly to OEA any and all work Contractor performs in
preparing all required environmental documentation, studies, surveys, etc.
Contractor, and any subcontractors, shall not disclose the results oftheir work nor
release any of the underlying work papers, drafts, or other materials prepared
under the contract to anyone, including Applicant, without OEAs express
authorization. In no case shall Applicant be provided the opportunity to modify or
edit Contractors work prior to submission to OEA, without OEAs express
authorization.

G.

Contractor shall follow the directions and instructions of OEA, and incorporate
them into the environmental document(s) in a timely and responsive manner.
Contractor shall submit preliminary and final drafts of any documents to OEA for
final review and approval.

H.

Contractor shall provide OEA access to and the right to review all procedures and
-7-

underlying data used in Contractors development and preparation of any and all
environmental documents. This includes, but is not limited to, field
reports/surveys, technical studies and analyses, subcontractor reports, and
interviews with concerned private and public parties, whether or not such
information may be reflected in draft, supplemental, or fmal environmental
documents submitted to OEA.

Contractor, and any approved subcontractors, shall cooperate fully with OEA in
organizing, participating in, and conducting any public workshops, informational
meetings, and other meetings, as OEA determines are necessary, to foster public
understanding of and/or participation in the environmental review process, and to
assess potential environmental impacts and develop mitigation measures related
to the Application.
J.

Contractor will assist OEA in reviewing comments received during the

environmental review process, will draft a summary of rail-related comments, and
will coordinate analysis ofthese comments with OEA.

K.

Contractor shall assist OEA in preparing the required environmental

documentation, environmental recommendations, selection of alternatives, and
development of mitigation measures.

L.

The Contractors Project Director, Project Manager, and other technical experts,
as appropriate, shall be available to attend all meetings, briefings, consultations,
and site visits as OEA deems necessary. The Project Director and the Project
Manager shall devote as much time to environmental review of the Application as
is necessary to assure Contractors performance of its responsibilities under this
MOU. This work commitment will extend for the entire time necessary to
-8-

complete the environmental review for the Application.

M.

Except as specifically authorized by OEA, Contractor and any of its

subcontractors shall refer all media/press inquiries directly to OEA.

N.

As needed, Contractor will provide technical expertise and administrative support

to OEA during preparation ofthe Boards decision and in addressing any

environmental issues arising in the Boards considerationofthis proceeding. In

the event of any appeal from a Board decision in this proceeding, the parties
hereto shall at that time determine the need for and terms of Contractors services
in connection with judicial review of that decision.

0.

Contractor shall provide any administrative and technical support that may be
needed to assist OEA in reviewing, summarizing, and responding to
environmental issues arising after issuance of the final environmental
documentation, including in connection with Board decisions, correspondence,
filings before the Board and by the Board in court in connection with any judicial
review ofthe Boards decisions, and other inquiries involving environmental
issues associated with the Applicants proposal.

V.

Applicant Responsibilities

A.

Applicant shall retain Contractor to assist OEA in preparing all required

environmental documentation and services, as that assistance and its costs are
defined by a contract to be negotiated and executed by Applicant and Contractor,
and in the Work Plan described in Section VII.

B.

Applicant, including its staff and representatives, shall provide to OEA and
-9-

Contractor any requested supportive expertise, resources, data, and technical

capabilities necessary to undertake the environmental analysis, subject to the right
of Applicant to advise OEA of any request received from OEA or Contractor that
Applicant believes either is not germane to matters appropriately reviewed in the
environmental review process, is contrary to applicable statutes and regulations,
would impose an extraordinary burden on Applicant, or is subject to the right of
Applicant to maintain confidentiality as to proprietary, privileged, or other
information which is not otherwise subject to disclosure. In the event that
Applicant so advises OEA, OEA shall determine whether the request is
appropriate and shall so advise Applicant and Contractor of its determination.
OEA, shall, to the extent possible, maintain the confidentiality of any information
if so requested by Applicant.

C.

Applicant shall cooperate fully with OEA in organizing and participating in any
public workshops, hearings, and meetings, as OEA determines are necessary (1)
to foster public understanding and/or participation in the environmental review
process, and (2) to assess potential environmental impacts and mitigation
measures related to the Application.

D.

With respect to all reports, analyses, and documents, including drafts,

supplements, and final copies ofthe environmental documents, Applicant shall be
responsible for Contractors administrative and clerical costs, as well as the costs
of graphics, maps, layout, mailing, and printing, as those costs are defined by a
contract to be negotiated and executed by Applicant and Contractor. However,
Applicant shall have the option of directing that the printing of the environmental
documentation be performed by a private entity, rather than OEA. Applicant shall
be solely responsible for the cost ofpreparing and providing to OEA the
-10-

appropriate number of copies of all required environmental documentation.

E.

Applicant shall provide complete, accurate, relevant, and timely responses to all
reasonable requests for information pertaining to the Application to the Board, the
Operating Plan, and the environmental aspects and effects ofthe proposed rail
construction and operation.

F.

In the event of any litigation resulting from the environmental analysis in this
proceeding OEA shall at that time determine the need for and terms of
Contractors services in connection with any litigation.

VI.

Board/OEA Responsibilities

A.

The Board is responsible for ensuring compliance with the requirements of NEPA
and other applicable environmental statutes and regulations by preparing
appropriate environmental documentation.

B.

OEA shall:
(1)

Direct, review, and approve all phases ofpreparing all required

environmental documentation, including the work of Contractor, using
OEAs best efforts to ensure that the work is reasonably necessary to
conduct the environmental review process regarding the Application and
the work is within the scope ofNEPA requirements. For example, OEA
shall ensure that Contractor considers existing data and environmental
analyses available from the Applicant, OEA, and other sources, and that
Contractor does not duplicate work already done, unless OEA determines
that the existing data is not adequate for use in preparing the
11

environmental documentation;
(2)

Designate appropriate staffto review and approve all work as it is

developed and completed;

( 3)

Ensure that its representatives attend meetings, as needed, with Federal,

state, regional, and local agencies, and other interested parties, as well as
any public hearings or meetings, to exchange information, explain the
Application and related environmental concerns and impacts, obtain
technical input, and receive comments in preparing all required
environmental documentation; and

(4)

Coordinate, with Contracto?s assistance, the exchange of information

among any planning, design, or construction engineers or technical staff
employed by Applicant and Contractor.

C.

OEA will periodically review the work of Contractor to ensure that the Boards
responsibilities under NEPA and related environmental laws and regulations are
being satisfied. As each portion of any draft or final document is completed,
OEA staff shall review and approve that portion and those tasks completed,
and/or direct further work with regard to that portion or task.

D.

OEA will monitor Contractor to ensure that Contractor is making adequate

progress toward meeting specific time frames established in the Work Plan
described in Section VII. If OEA determines these commitments are not being
met, it will notify Applicant of its findings. It will be the responsibility of OEA to
recommend any necessary corrective action to be taken under this MOU.

E.

In all instances involving questions concerning the content or relevance of any

material (including all data, analyses, charts, and conclusions) prepared by
-12-

Contractor, OEA shall make the final determination on including, deleting, or

revising any such material in the environmental documents.

F.

To coordinate the preparation of all required environmental documentation, and to

verify Application-related data, OEA may hold joint. meetings with Applicant and
Contractor. As necessary, OEA may exclude Applicant from participation. OEA
may also consult directly with appropriate Federal, state, and local officials, and
other interested parties. Applicant shall provide complete, accurate, relevant, and
timely responses to all reasonable requests for information pertaining to the
Application to the Board and the environmental aspects and effects of the
proposed rail construction and operation.

G.

OEA, with the assistance of Contractor, will be responsible for organizing and
conducting any public workshops or meetings that may be necessary in preparing
environmental documents during the environmental review process.

H.

OEA, with the assistance of Contractor, will receive all relevant comments
submitted during the environmental review process and comment period. At the
close of any public review and comment period, OEA, in consultation with
Contractor, shall identify the issues and comments that will require a response
from the Board. OEA may direct these comments to Applicant and to Contractor,
as appropriate, to be included in the final environmental document. OEA may
modify these responses as appropriate.

OEA, with the assistance of Contractor, shall prepare final recommendations for
the Board.

13

J.

OEA shall retain responsibility for deciding the environmentally preferable

alternative, and any mitigation measures to be included in the fmal environmental
document.

VII.

Work Plan

A.

Contractor, in consultation with OEA and Applicant, shall submit a draft Work
Plan to OEA for preparing the required environmental documentation within
thirty (30) days after all parties have signed this MOU. The draft Work Plan shall
contain at least the following elements:
(1)

A description of all work to be performed (including preparing and

sending consultation letters; participating in public and agency meetings;
outlining and drafting environmental documents; reviewing, analyzing,
and summarizing public comments; conducting analyses, etc.);

(2)

The projected schedule for completing the various tasks described;

(3)

Identification of Contractors staff members who will be responsible for

preparing, analyzing, and reviewing the work; and

(4)

B.

An outline of the environmental analysis.

Following receipt of the draft Work Plan, OEA, in consultation with Contractor
and Applicant, shall finalize the Work Plan in a timely manner.

C.

Subsequent to consultation with Contractor and Applicant, OEA may amend the
Work
Plan from time to time as the environmental review of the Application may
necessitate. The parties hereto shall consult at least once every two weeks to

confirm that the work is being performed in the most efficient and cost-effective
manner and to consider possible measures to improve the efficiency and costeffectiveness of performance of the work.
-14-

VIII. Disputes
Disputes between the parties may arise regarding the environmental review process,
including approach, methodology, analysis, conclusions, and performance ofthe
obligations of the parties to this MOU. The parties agree to seek resolution of disputes
among the individuals or parties directly involved.. In the event that resolution is not
achieved, the parties agree to make further attempts at resolution before bringing the
dispute to the next supervisory level, and all individuals or parties directly involved shall
be notified in the case of such a referral to the next supervisory level. In addition, the
parties may seek independent facilitation or mediation to assist in resolving disputes in
the event that resolution is not achieved.

Ix.

Nonperformance and Termination

A.
Applicant or Contractor shall notify OEA of any concerns either party might have
with respect to the other partys performance under the contract between
Applicant and Contractor or this MOU. All parties will attempt to resolve, in
good faith, any disputes or disagreements.

B.

If OEA determines that either Contractor or Applicant is not adequately

performing its responsibilities and duties in accordance with this MOU, OEA will
discuss its concerns with Contractor and Applicant. If OEAs concerns cannot be
satisfactorily resolved, OEA will notify Applicant that OEA is removing
Contractor for cause, or direct Applicant to comply with the MOU. Upon
removal of Contractor, OEA shall endeavor to replace Contractor with another
qualified
Contractor as soon as practicable.

C.

Both Applicant and Contractor shall immediately notify OEA of any attempt by
-

15

_______
___

either party to modify or terminate the contract between Applicant and

Contractor. Termination ofthe Contract shall be subject to OEAs prior approval,
after consultation with Applicant and Contractor. Upon approving termination of
the contract, OEA shall endeavor to replace Contrator with another qualified
Contractor as soon as practicable. Notwithstanding the foregoing, Applicant may
terminate the contract without OEAs approval in the event that it withdraws its
notice of intent or the Application.

x.

Modification
This MOU may be modified only by written amendment executed by OEA, Applicant,
and Contractor.

TONGUE RIVER RAILROAD COMPANY, INC.

By:

Title:

Date:

SURFACE TRANSPORTATION BOARD

ICF INTERNATIONAL

By:

By:

Title:

Title:

Date:

Date:

-16-

Pagelofi

Re: Draft Whereas Clauses for Tongue River PA

Vicki Rutson
to:
Coburn, David
06/24/2014 11:43 PM
Hide Details
From: Vicki RutsonISTB
To: Coburn, David <DCobum@steptoe.com>
Received, David. There is a reason for including the reference to 4(f). Ill add it to our agenda for
tomorrows budget call.
Sent from my BlackBerry 10 smartphone on the Verizon Wireless 4G LTE network.
From: Coburn, David
Sent: Tuesday, June 24, 2014 10:03 PM
To: Vicki Rutson (RutsonV@stb.dot.gov); catherine.nadals@stb.dot.gov
Cc: Starzak, Richard; Summerville, Alan
Subject: Draft Whereas Clauses for Tongue River PA
.

Vicki and Cathy Please find attached some very modest suggested changes proposed by the applicant
Tongue River Railroad to the draft Whereas clauses for the PA. As you will see, we have proposed
elimination of the reference to section 4(f) of the DOT Act because, as you know, this does not apply to STB
rail projects. It was also not referenced in the prior PA. If you believe that there is some reason why this
reference belongs in the PA, I would appreciate speaking with you about that.

While I believe that the Whereas clauses were generally fine (subject to the very few edits shown in track
on the attached), I understand that other edits have since been offered by the ACHP and possibly other
parties. I also know that some edits were offered during the last Section 106 consulting party call. I trust
that we and other consulting parties will have an opportunity to review an updated draft of the clauses at
some point in the near future and we will of course offer you our thoughts on that updated draft when it is
made available. Of course, we also look forward to actively participating in offering our thoughts on the
substantive terms of the PA when these are made available.
Thank you for this opportunity. Regards. David Coburn/Attorney for Tongue River Railroad Company, Inc.
David H. Coburn
Partner
DCoburn@steptoe.com

Steptoe

+1 202 429 8063 direct

+1 202 262 7306 mobile

+1 202 261 0565 fax

Steptoe & Johnson LLP

1330 ConnecticutAvenue, NW

Washington, DC 20036
www.stertoe.com

This message and any attached documents contain information from the law firm Steptoe & Johnson LLP that may be confidential and/or privileged.
If you are not the intended recipient, please do not read, copy, distribute, or use this information. If you have received this transmission in error,
please notify the sender immediately by reply e-mail and thendelete this message.

file:///C:/Users/rutsonv/AppDat&Local/Temp/l/notesO9E97l/web4978 .htm

1/12/2015

i
(

RE:TRRCMOU
.

Cobum, DavId

z:

DanieNe.GosseNnstb.dot.gov
Vicki.Rutsonstb.dot.gov, Taub, Cynthia
Kenneth
Blodgett, Diller, Elizabeth
This message has been replied to.

11/15/2012 02:00 PM

, -,

:s:c:7:

1 attachment

20121 1 15105452825.pdf

Here is the MOU,

executed by TRRC.

David

Original Message
From: Summerville, Alan
@icfi.com]
Sent : Friday, November 02 , 2012 3 : 11 PM
To: Danielle.Gosselin@stb.dot.gov
Cc: Vicki.Rutson@stb.dot.gov; Taub, Cynthia; Kenneth Blodgett;
Diller, Elizabeth
Subject: RE: TRRC MOU

Coburn,

David;

Danielle,
Attached is our signed MOU.
Thanks,
Alan
Original Message
From: Danielle.Gosselin@stb.dot.gov [mailto:Danielle.Gosselin@stb.dot.gov]
Sent: Wednesday, October 24, 2012 9:50 AM
To: Coburn, David; Summerville, Alan
Cc : Vicki Rutson@stb dot gov; Cynthia L Taub; Kenneth Blodgett
Subject: TRRC MOU
.

Hi David & Alan,

Attached please find the MOU for the TRRC project.
If you have any
questions or comments, please let me know.
Otherwise, please sign it and
return the original to my attention as soon as possible.
(See attached file:

TRRC MOU.doc)

Danielle

Danielle Gosselin
Attorney Advisor
Office of Environmental Analysis
Surface Transportation Board
Tel: (202) 245

.1

..

RE:

MEMORANIMJM OF UNDERSTANDING
AMONG
SURFACE TRANSPORTATION BOARD,
TONGUE RIVER 1AILROAD COMPANY, INC. AND
ICF JONES & STOKES, INC.

ENVIRONMENTAL ANALYSIS AND PREPARATION OF APPROPRIATE

ENVIRONMENTAL DOCUMENTS RELATING TO TIlE CONSTRUCTION
AND OPERATION OF A PROPOSED RAIL LINE BY THE TONGUE RIVER
RAILROAD COMPANY, INC. IN CUSTER, POWDER RWER AND ROSEBUD,
COUNTIES, MONTANA

Introduction and Purpose

A.

On October 16, 2012, Tongue River Railroad Company, Inc. (TRRC or Applicant)
filed an application in Finance Docket No. 30 1 86 seeking authorization from the
Surface
Transportation Board (Board) to construct and operate an approximately
80 mile rail line which would have a northern terminus at an existing BNSF
Railway Company (BNSF) line near Miles City, MT, and two southern termini,
one near the site of the previously planned Montco mine near Ashland, MT. and
another at the proposed Otter Creek mine in the Otter Creek area east of Ashland,
MT. BNSF, a part owner of TRRCs parent company, Tongue River Holding
Company, LLC,joined the application as the expected operator ofthe proposcd
rail line.

B.

In considering the application, the Board will consider the potential

environmental impacts resulting from construction and operation ofthe proposed

rail line and any rail-related alternativcs. The Board will be the lead agency for
preparing the environmental documentation required for the project, either an
Environmental Impact Statement or Environmental Assessment, as required by
the National Environmental Policy Act of 1969 (NEPA). Pursuant to 40 C.F.R.

I.

1506.5(c), 49 C.F.R. 1 105.4(j), and 1105.10(d), the Board, throughits Office of

Environmental Analysis (OEA), has selected .and Applicant has agreed to engage,
s expense, ICF Jones & Stokes, Inc., a Delaware corporation
T
at Applicant
(Contractor) as the Independent Third Party Contractor for this proposal.
Contractor shall assist OEA in conducting the environmental review and
preparing the environmental documentation related to the Applicants proposal.
Contractors scope of work, approach, and activities shall be under the sole
supervision, direction, and control of OEA.

C.

This Memorandum ofUnderstanding (MOU) summarizes the relationship among

Contractor, Applicant, and OEA, as set forth in applicable regulations and Board
policy, regarding the conditions and procedures each party must follow in
preparing all environmental documentation. This MOU does not supersede or
amend, and is made expressly subject to, the requirements ofNEPA, and, to the
extent applicable, related environmental laws, and 49 C.F.R. Part 1 105 and 40
C.F.R. Part 1500.

D.

The Applicant, Contractor, and OEA agree to work within the framework
of this MOU to develop an efficient method to complete the
environmental review for the proposed application. OEA shall maintain
overall responsibility for the documentation, analysis, methodology,
consultation,.and mitigation related to the environmental review process.
OEA shall direct; evaluate, oversee, and approve the environmental review
process.

The

terms environmental documentation and environmental document(s) embrace draft, supplemental, and final EAs,
EISs, and any other reports, studies, surveys, or related documents.

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1_

II.

Document Process
OEA will prepare on behalf of the Board, the draft environmental document (EA or EIS)
for agency and public review. OEA will independently draft mitigation, based on its
review ofpotential environmental impacts ofthe project.

ifi.

Agreement between Applicant and Contractor

A.

Any contract between Applicant and Contractor, and any subcontracts, shall be
consistent with the provisions of this MOU.

B.

The terms ofthis MOU shall override any contradictory or conflicting terms
regarding the scope and perforMance of any work to be conducted under any
contract entered frito between Applicant and Contractor; provided, however, that
the foregoing shall not limit the rights ofApplicant and Contractor to contract on
terms which require that the work be performed cost-effectively.

C.

The contract between Contractor and Applicant shall specifically provide, and
Contractor shall represent, that (1) Contractor and any subcontractors do not and
shall not have any fmancial or economic interest inApplicant or any entity or
person directly or otherwise affiliated with Applicant (including but not limited to

any ofthe three entities that own Applicants parent) except for payment for
services rendered in connection with the preparation of all required environmental
documentation, and except for services rendered pursuant to other agreements not
prohibited by this MOU, and (2) there is no agreement between Applicant, or any
.

other person or entity and Contractor regarding future employment that is

contingent upon Contractors performance under this contract. Contractor shall
concurrently execute a disclosure statement as mandated by the regulations of the
Council on Environmental Quality (CEQ) (40 C.F.R. 1 506.5(c)) and submit it to
-3-

s.

both OEA and Applicant, before beginning any work under OEAs direction. It is
understood that Contractor and any subcontractors have not done any
enviTonmental analysis related to the application for Applicant, or for any other
person or entity (including but not limited to any of the three entities that own
Applicants parent), and, therefore, can be retained as independent third party
.

D.

contractor(s).

Restrictions on other work:

(1)

No employee of Contractor or employee of any subcontractor, who is a

part of Contracto?s core team committed to the environmental review
process for the application, shall engage in (a) other work for Applicant or
any entity or person directly or otherwise affiliated with Applicant
(including but not limited to any of the three entities that own Applicants
parent) or (b) any work, relating to the application, for any other party to
this proceeding during the course ofthis proceeding; and

(2)

No other employee of Contractor or other employee of any subcontractor

shall, unless OEA is provided prior notice of and approves such work,
engage in (a) other work for Applicant or any entity or person directly or
otherwise affiliated with Applicant (including but not limited to any of the
three entities that own Applicants parent), or (b) any work, relating to the
application before the Board, or any cooperating agencies that may elect to
participate in this process, or any other party to this proceeding during the
course ofthis proceeding.

-4-

E.

Applicant shall bear the costs incurred by Contractor, and by any subcontractor
approved by OEA in accordance with Section ffl.A, in preparing the required
environmental documentation to implement NEPA and related environmental
laws under the direction of OEA. Applicant agrees to hold harmless and
indemnify the United States ofAmerica and the Board with respect to any and all
claims, demands, causes of action, and the like, which may arise in performing
the work under the contract between Contractor and Applicant.

F.

Any contract between Contractor and Applicant shall specifically limit any
remedies available to Contractor or subcontractors upon termination of the
contract to affirmatively relieve the United States ofAmerica, the Board, and any
officer, agent, or employee, from any liability from terminating the contract.

Iv

Contractor Responsibilities
A.

Contractor may engage subcontractors to perform work related to environmental

review ofthe application, subject to the provisions of Sections III.C and Ill.D.
All work performed by Contractor or any subcontractors shall be under the sole
direction, control, supervision, and final approval of OEA. Contractor and
subcontractors, if any, will act as the agent(s) ofthe Board, not Applicant, in
performing
its/their duties.

B.

Contractor shall provide:

(1)

Appropriate expertise in the areas of environmental concern (including,

but not limited to air quality, wetlands, biological resources, geotechnial
resources, hydrology, land use, safety, noise, social and economic, and
cultural/historic resources);

(2)

A good working knowledge of environmental laws, applicable laws and

regulations (including environmental regulations) administered or

II.

..

1.

promulgated by the Board, EQ regulations and guidelines, other

applicable federal regulations, state laws and regulations, and applicable
local ordinances and regulations;
(3)

The capability to perform environmental impact analysis and prepare

appropriate environmental documentation;

(4)

Thorough, readable, technically sound, and informative environmental

documents, as well as related charts, maps, diagrams, etc.;

(5)

Representatives to attend and/or facilitate meetings with federal, state,

regional, and local agencies, other interested parties, and Applicant for the
purpose of exchanging and obtaining information, explaining the
application and related environmental concerns and impacts, and receiving
comments in preparing the required environmental documentation;

(6)

Expertise in data management;

(7)

Assistance to OEA in ensuring that the data collection, analyses, and

methodologies for the environmental documents are complete, accurate,
and relevant to OEAs needs for the environmental review of the
application under NEPA.

C.

Contractor shall maintain and provide OEA upon request:

(1)

Adequate record-keeping and reporting systems to assure preservation of

all data gathered, including surveys, studies, etc.;

(2)

Logs summarizing all telephone calls, meetings, document reviews, and

other substantive communications with OEA, Applicant, local

governments, governmental agencies, citizens groups, and any other

interested parties; and

(3)

Lists of all agencies, other railroads, citizens groups, organizations, and

individuals (including their respective addresses and telephone numbers)
-6-

contacted in preparing the environmental documentation.

D.

Contractor shall perform the work in a timely, responsive, satisfactory, and costeffective manner, pursuant to a work schedule developed with OEA in
coordination with Applicant and approved by OEA.

E.

Contractor shall assist OEAin coordinating the exchange ofall relevant

environmental information and technical datalstudies related to the applicatin

and all required environmental documentation among OEA staff, Applicants staff

and representatives, Contractor, and any subcontractors.

F.

Contractor will submit directly to OEA any and all work Contractor performs in
preparing all required environmental documentation, studies, surveys, etc.
Contractor, and any subcontractors, shall not disclose the results oftheir work nor
release any ofthe underlying work papers, drafts, or other materials prepared
under the contract to anyone, including Applicant, without OEAs express
authorization. In no case shall Applicant be provided the opportunity to modify
or edit Contractors work prior to submission to OEA, without OEAs express
authorization.

Contractor shall follow the directions and instructions of OEA, and incorporate

G.

them into the environmental document(s) in a timely and responsive manner.

Contractor shall submit preliminary and fmal drafts of any documents to OEA for
fmal review and approval.

H.

Contractor shall provide OEA access to and the right to review all procedures and
underlying data used in Contractors development and preparation of any and all
-7-

environmental documents. This includes, but is not limited to, field

reports/surveys, technical studies and analyses, subcontractor reports, and
interviews with concerned private and public parties, whether or not such
information may be reflected in draft, supplemental, or fmal environmental
documents submitted to OEA.

Contractor, and any approved subcontractors, shalicooperate fully with OEA in

organizing, participating in, and conducting any public workshops, informational
meetings, and other meetings, as OBA determines are necessary, to foster public
understanding of and/or participation in the environmental review process, and to
assess potential environmental impacts and develop mitigation measures related
to the application.

J.

Contractor will assist OEA in reviewing comments received during the

environmental review process, will draft a summary ofrail-related comments, and
will coordinate analysis ofthese comments with OEA.

K.

Contractor shall assist OEA in preparing the required environmental

documentation, environmental recommendations, selection of alternatives, and
development ofmitigation measures.

L.

The Contractors Project Director, Project Manager, and other technical experts,
as appropriate, shall be available to attend all meetings, briefings, consultations,
and site visits as OEA deems necessary. The Project Director and the Project
Manager shall devote as much time to environmental review ofthe application as
is necessary to assure Contractors performance of its responsibilities under this
MOU. This work commitment will extend for the entire time necessary to
.

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..

...

complete the environmental review for the application.

M.

Except as specifically authorized by OEA, Contractor and.any of its

subcontractors shall refer all medialpress inquiries directly to OEA.

N.

As needed, Contractor will provide technical expertise and administrative support

to OEA during preparation ofthe Boards decision and in addressing any
environmental issues

arising in the Boards consideration ofthis proceeding. In

the event of any appeal from a Board decision in this proceeding, the parties
hereto shall at that time determine the need for and terms of Contractors services
in connection with judicial review of that decision.

0.

Contractor shall provide any administrative and technical support that may be
needed to assist OEA in reviewing, summarizing, and responding to
environmental issues arising after issuance ofthe fmal environmental

;i

documentation, including in connection with Board decisions, correspondence,

filings before the Board and by the Board in court in connection with any judicial

review ofthe Boards decisions, and other inquiries involving environmental

.

issues associated with the Applicants proposal.

V.

Applicant Responsibilities
A.

Applicant shall retain Contractor to assist OEA in preparing all required

environmental documentation and services, as that assistance and its costs are
defmed by a contract to be negotiated and executed by Applicant and Contractor,
and in the Work Plan described in Section VII.

B.

Applicant, including its staffand representatives, shall provide to OEA and

Contractor any requested supportive expertise, resources, data, and technical

capabilities necessary to undertake the environmental analysis, subject to the right
of Applicant to advise OBA of any request received from OEA or Contractor that
Applicant believes either is not germane to matters appropriately reviewed in the
environmental review process, is contrary to applicable statutes and regulations,
would impose an extraordinary burden on Applicant, or is subject to the right of
Applicant to maintain confidentiality as to proprietary, privileged, or other
information which is not otherwise subject to clisdosure. In the event that
Applicant so advises OEA, OEA shall determine whether the request is
appropriate and shall so advise Applicant and Contractor ofits determination.
OEA, shall, to the extent possible, maintain the confidentiality of any information
if so requested by Applicant.

C.

Applicant shall cooperate fully with OEA in organizing and participating in any
public workshops, hearings, and meetings, as OEA determines are necessary (1)
to foster public understanding and/or participation in the environmental review
process, and (2) to assess potential environmental impacts and mitigation
measures related to the application.

D.

With respect to all reports, analyses, and documents, including drafts,

supplements, and fmal copies ofthe environmental documents, Applicant shall be
responsible for Contractors administrative and clerical costs, as well as the costs
of graphics, maps, layout, mailing, and printing, as those costs are defined by a
contract to be negotiated and executed by Applicant and Contractor. However,
Applicant shall have the option ofdirecting that the printing ofthe environmental
documentation be performed by a private entity, rather than OEA. Applicant shall
be solely responsible for the cost ofpreparing and providing to OEA the
-10-.

I.

.i_..

appropriate number of copies of all required environmental documentation.

E.

Applicant shall provide complete, accurate, relevant, and timely responses to all
reasonable requests for information pertaining to the application to the Board, the
Oprating.Plan,
and the environmental aspects and effects ofthe proposed rail
construction and operation.

F.

In the event of any litigation resulting from the environmental analysis in this
proceeding, OEA shall at that time determine the need for and terms of
Contractors services in connection with any litigation.

VI.

Board/OEA Responsibilities
A.

The Board is responsible for ensuring compliance with the requirements of NEPA
and other applicable environmental statutes and regulations by preparing
appropriate environmental documentation.

B.

OEA shall:
(1)

Direct, review, and approve all phases ofpreparing all required

environmental
documentation, including the work of Contractor, using
OEAs best efforts to ensure that the work is reasonably necessary to
conduct the environmental review process regarding the application and
the work is within the scope ofNEPA requirements. For example, OEA
shall ensure that Contractor considers existing data and environmental
analyses available from the Applicant, OEA, and other sources, and that
Contractor does not duplicate work already done, unless OEA determines
that the existing data is not adequate for use in preparing the
environmental documentation;

11

(2)

Designate appropriate staffto review and approve all work as it is

.

(3)

developed and completed;

Ensure that its representatives attend meetings, as needed, with federal,
state, regional, and local agencies, and other interested parties, as well as
any public hearings or meetings, to exchange information, explain the
application and related environmental concerns and impacts, obtain
technical input, and receive comments in preparing all required
environmental documentation; and

(4)

Coordinate, with Contractors assistance, the exchange of information

among any planning, design, or construction engineers or technical staff
employed by Applicant and Contractor.

C.

OEA will periodically review the work of Contractor to ensure that the Boards
responsibilities under NEPA and related environmental laws and regulations are
being satisfied. As each portion of any draft or final document is completed,
OEA staff shall review and approve that portion and those tasks completed,
and/or direct further work with regard to that portion or task.

D.

OEA will monitor Contractor to ensure that Contractor is making adequate

.

progress toward meeting specific time frames established in the Work Plan
described in Section VII. If OEA determines these commitments are not being
met, it will notify Applicant of its findings. It will be the responsibility of OEA to
recommend any necessary corrective action to be taken under this MOU.

E.

In all instances involving questions concerning the content or relevance of any

material (including all data, analyses, charts, and conclusions) prepared by
Contractor, OEA shall make the final determination on including, deleting, or
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_i

..

revising any such material in the environmental documents.

To coordinate the preparation of all required environmental documentation, and to

F.

verify application-related data, OEA may hoidjoint meetings with Applicant and
Contractor. As necessary, OEA may exclude Applicant fromparticipation. OEA
may also consult directly with appropriate federal, state, and local officials, and
.

other interested parties. Applicant shall provide complete, accurite, relevant,

and timely responses to all reasonable requests for information pertaining to the
application to the Board and the environmental aspects and effects of the
proposed rail construction and operation.

0.

OEA, with the assistance of Contractor, will be responsible for organizing and
conducting any public workshops or meetings that may be necessary in preparing
environmental documents during the environmental review process.

H.

OEA, with the assistance of Contractor, will receive all relevant comments
submitted during the environmental review process and comment period. At the
close of any public review and comment period, OEA, in consultation with
Contractor, shall identify the issues and comments that will require a response
from the Board. OEA may direct these comments to Applicant and to Contractor,
as appropriate, to be included in the final environmental document. OEA may
modify these responses as appropriate.

OEA, with the assistance of Contractor, shall prepare final recommendations for
the Board.

13

J.

I.

*.

OEA shall retain responsibility for deciding the environmentally preferable

alternative, and any mitigation measures to be included in the final environmental
document.

VII

Work Plan

A.

Contractor, in consultation with OEA and Applicant, shall submit a draft Work
Plan to OEA for preparing the required environmental documentation within
thirty (30) days after all parties have signed this MOU. The draft Work Plan shall
contain at least the following elements:
(1)

A description ofall work to be performed (including preparing and

sending consultation letters; participating in public and agency meetings;
outlining and drafting environmental documents; reviewing, analyzing,

and summarizing public comments; conducting analyses, etc.);

(2)

The projected schedule for completing the various tasks described;

(3)

Identification of Contracto?s staffmembers who will be responsible for

preparing, analyzing, and reviewing the work; and

(4)

B.

An outline ofthe environmental analysis.

Following receipt of the draft Work Plan, OEA, in consultation with Contractor

and Applicant, shall finalize the Work Plan in a timely manner.

C.

Subsequent to consultation with Contractor and Applicant, OEA may amend the
Work Plan from time to time as the environmental review ofthe application may
necessitate. The parties hereto shall consult at least once every two weeks to

confirm that the work is being performed in the most efficient and cost-effective
manner and to consider possible measures to improve the efficiency and costeffectiveness ofperformance ofthe work,
.

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Ylil. Disputes
Disputes between the parties may arise regarding the environmental review process,
including approach, methodology, analysis, conclusions, and performance of the

obligations ofthe parties to this MOU. The parties agree to seek resolution of disputes
among the individuals or parties directly involved. In the event that resolution is not
achieved, the parties agree to make further attempts at resolution before bringing the
dispute to the next supervisory level, and all individuals or parties directly involved shall
be notified in the case of such a referral to the next supervisory level. In addition, the
parties may seek independent facilitation or mediation to assist in resolving disputes in
the event that resolution is not achieved.

:i:x.

Nonperformance and Termination

A.

Applicant or Contractor shall notify OEA of any concerns either party might have
with respect to the other partys performance under the contract between
Applicant and Contractor or this MOU. All parties will attempt to resolve, in

B.

good faith, any disputes or disagreements.

If OEA determines that either Contractor or Applicant is not adequately

performing its responsibilities and duties in accordance with this MOU, OEA will
discuss its concerns with Contractor and Applicant. If OEAs concerns cannot be
satisfactorily resolved, OEA will notifj Applicant that OEA is removing
Contractor for cause, or direct Applicant to comply with the MOU. Upon
removal of Contractor, OEA shall endeavor to replace Contractor with another
qualified Contractor as soon as practicable.

C.

Both Applicant and Contractor shall immediately notify OEA of any attempt by
-15-

______________________

....

..

either party to modify or terminate the contract between Applicant and

Contractor. Termination ofthe Contract shall be subject to OEAs prior approval,
after consultation with Applicant
the cOntract,

OEA

and

Contractor. Upon approving termination of

shall endeavor to replace Contractor with another qualified

Contractor as soon as practicable. Notwithstanding the foregoing, Applicant may

terminate the contract without OEAs approval in the event that it withdraws its
notice of intent or the application.

x.

Modification
This

and

MOU may be modified only by written amendment executed by OEA, Applicant,

Contractor.

TONGUE RIVER RAILROAD COMPANY, INC.

By:
.

Title:
Date:

/,- /

,..

,24,

SURFACE TRANSPORTATION

ICF JONES & STOKES, INC.

BOARD

By:

Title:
Date:

By:

Title: Sr.

ktat.ar

Contracts

Date: November Z2012

16-