Summary:  (1) REOPENED THIS PROCEEDING; AND (2) MODIFIED THE NOTICE SERVED ON DECEMBER 2, 2002, AND PUBLISHED IN THE FEDERAL REGISTER ON DECEMBER 4, 2002, EXEMPTING THE ABANDONMENT OF THE LINE DESCRIBED IN THIS DECISION TO THE EXTENT NECESSARY TO IMPLEMENT TRAIL USE/RAIL BANKING, FOR A PERIOD OF 180 DAYS COMMENCING FROM JANUARY 1, 2003 THE EFFECTIVE DATE OF THE EXEMPTION, UNTIL JUNE 30, 2003, SUBJECT TO CERTAIN CONDITIONS.

DO

SURFACE TRANSPORTATION BOARD

DECISION AND NOTICE OF INTERIM TRAIL USE OR ABANDONMENT

STB Docket No. AB-33 (Sub-No. 192X)

UNION PACIFIC RAILROAD COMPANY-ABANDONMENT EXEMPTION- IN SALT LAKE AND UTAH COUNTIES, UT

Decided: December 30, 2002

Union Pacific Railroad Company (UP) filed a notice of exemption under 49 CFR 1152 Subpart F-Exempt Abandonments to abandon a 3.23-mile line portion of a line of railroad called the Provo Industrial Lead, from milepost 772.00 near Cutler, to milepost 775.23 near Mount, in Salt Lake and Utah Counties, UT. Notice of the exemption was served on December 2, 2002 and published in the Federal Register on December 4, 2002 (67 FR 72269-70). The exemption is scheduled to become effective on January 1, 2003.

The Board's Section of Environmental Analysis (SEA) served an environmental assessment (EA) in this proceeding on December 6, 2002. In the EA, SEA indicated that various government entities, including the U.S. Department of Commerce, National Geodetic Survey (NGS), the County Board of Commissioners (County), and the Utah Department of Environmental Quality-Hazardous Waste Division (DEQ-HW) have not completed their review of the proposed abandonment. Therefore, SEA recommends that UP: (1) consult with NGS and provide NGS with 90 days' notice prior to initiation of any salvage operations or commencement of such operations; (2) prior to abandonment, consult with DEQ-HW to identify all potential hazardous waste sites located on the railroad right-of-way; and (3) consult with the County prior to initiation of any salvage activities in order to address any of its concerns.

Finally, SEA states that the U.S. Fish and Wildlife Service (FWS) has expressed concern for the endangered June Sucker. Therefore, SEA recommends that if UP should salvage the rail line rather than convey it to the Utah Transit Authority, that a condition be placed on any decision granting abandonment authority prohibiting UP from salvaging or disposing of the entire right-of-way until completion of the Section 7 process of the Endangered Species Act, 16 U.S.C. 1531.

On December 12, 2002, the Utah Transit Authority (UTA) timely filed a request for the issuance of a notice of interim trail use (NITU) for the subject line under the National Trails Act , 16 U.S.C. 1247(d) (Trails Act), in order to negotiate with UP for acquisition of the right-of-way for use as a trail. UTA submitted a statement of willingness to assume financial responsibility for the management of, for any legal liability arising out of the transfer of or use of (unless the user is immune from liability, in which case it need only indemnify the railroad against any potential liability), and for payment of any and all taxes that may be levied or assessed against, the right-of-way, as required at 40 CFR 1152.29, and acknowledged that the use of the right-of-way for trail purposes is subject to possible future reconstruction and reactivation for rail service. In a response submitted on December 23, 2002, UP indicated its willingness to negotiate with UTA.

Because UTA's request complies with the requirements of 49 CFR 1152.29 and UP is willing to negotiate for trail use, a NITU will be issued. The parties may negotiate an agreement during the 180-day period prescribed below. If the parties reach a mutually acceptable final agreement, no further Board action is necessary. If no agreement is reached within 180 days, UP may fully abandon the line. See 49 CFR 1152.29(d)(1). Use of the right-of-way for trail purposes is subject to restoration for railroad purposes.

As conditioned, this decision will not significantly affect either the quality of the human environment or the conservation of energy resources.

It is ordered:

1. The proceeding is reopened.

2. Upon reconsideration, the notice served on December 2, 2002, and published in the Federal Register on December 4, 2002, exempting the abandonment of the line described above is modified to the extent necessary to implement trail use/rail banking as set forth below, for a period of 180 days commencing from January 1, 2003, the effective date of the exemption, until June 30, 2003, and subject to the condition that UP shall: (1) consult with NGS and provide NGS with 90 days' notice prior to initiation of any salvage operations or commencement of such operations; (2) prior to abandonment, consult with DEQ-HW to identify all potential hazardous waste sites located on the right-of-way; (3) consult with the County prior to initiation of any salvage activities in order to address any of its concerns; and (4) be prohibited from salvaging or disposing of the entire right-of-way until completion of the Section 7 process of the Endangered Species Act, 16 U.S.C. 1531.

3. If an interim trail use/rail banking agreement is reached, it must require the trail user to assume for the term of the agreement, full responsibility for management of, for any legal liability arising out of the transfer or use of (unless the user is immune from liability, in which case it need only indemnify the railroad against any potential liability), and for the payment of any and all taxes that may be levied or assessed against, the right-of-way.

4. Interim trail use/rail banking is subject to the future restoration of rail service and to the user's continuing to meet the financial obligations for the right-of-way.

5. If interim trail use is implemented, and subsequently the user intends to terminate trail use, it must send the Board a copy of this decision and notice and request that it be vacated on a specified date.

6. If an agreement for interim trail use/rail banking is reached by June 30, 2003, interim trail use may be implemented. If no agreement is reached by that time, UP may fully abandon the line.

7. This decision is effective its date of service.