Professional Documents
Culture Documents
-...
Sunimerville, Alan
to:
Ken Blodgett
09/21/2012 09:23 AM
Cc:
Ken,
Following-up on our call this morning, heres the email with the draft MOU.
Alan
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.
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
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+1 202 261 0565 fax
Washington, DC 20036
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1/12/2015
RE:
A.
B.
____________
corporation
C.
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
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-
D.
( 1)
(2)
-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.
B.
(2)
(4)
(5)
(6)
( 7)
C.
(2)
( 3)
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.
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.
K.
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-
M.
N.
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.
B.
Applicant, including its staff and representatives, shall provide to OEA and
-9-
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.
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)
environmental documentation;
(2)
( 3)
(4)
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.
E.
F.
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.
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)
(2)
(3)
(4)
B.
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.
B.
C.
Both Applicant and Contractor shall immediately notify OEA of any attempt by
-
15
_______
___
x.
Modification
This MOU may be modified only by written amendment executed by OEA, Applicant,
and Contractor.
By:
Title:
Date:
ICF INTERNATIONAL
By:
By:
Title:
Title:
Date:
Date:
-16-
Pagelofi
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
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
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
.
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.
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.
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.
C.
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.
-2-
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.
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
.
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).
(2)
-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.
B.
(2)
II.
..
1.
(4)
(5)
(6)
(7)
C.
(2)
(3)
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.
and all required environmental documentation among OEA staff, Applicants staff
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.
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-
J.
K.
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
.
-8-
..
...
M.
N.
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
filings before the Board and by the Board in court in connection with any judicial
V.
Applicant Responsibilities
A.
B.
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.
I.
.i_..
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)
11
(2)
(3)
(4)
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.
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.
_i
..
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
.
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.
*.
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)
(3)
(4)
B.
Following receipt of the draft Work Plan, OEA, in consultation with Contractor
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,
.
-14-
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.
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.
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-
______________________
....
..
OEA
and
terminate the contract without OEAs approval in the event that it withdraws its
notice of intent or the application.
x.
Modification
This
and
Contractor.
Title:
Date:
/,- /
,..
,24,
SURFACE TRANSPORTATION
BOARD
By:
Title:
Date:
By:
Title: Sr.
ktat.ar
Contracts
16-