1. COPYRIGHT © AREMA 2008 16: 1 of 36 Module 16: Environmental Issues And Permitting

2. COPYRIGHT © AREMA 2008 16: 2 of 36 Objectives Learn about applying environmental regulations and typical compliance procedures to your railroad projects Identify projects that require permits and when to involve resource agencies in project development Recognize agency requirements pertinent to railway projects

3. COPYRIGHT © AREMA 2008 16: 3 of 36 Introduction Most railway improvement projects are governed by an environmental regulation or law.

4. COPYRIGHT © AREMA 2008 16: 4 of 36 Common Issues National Environmental Policy Act (NEPA) Clean Water Act –Water Quality –Wetlands Endangered Species Act Historic Preservation Act –Cultural/Historical Resources Comprehensive Environmental Response, Compensation and Liability Act (CERCLA) –Phase I Environmental Assessment –Brownfields Resource Conservation and Recovery Act (RCRA) Clean Air Act –Air Quality –Asbestos Differing state and international regulations

5. COPYRIGHT © AREMA 2008 16: 5 of 36 NEPA and Railroads Signed into law in 1970, establishing a National Policy for Protection of the Environment. Required whenever federal funds, land, or major federal decision is involved. Common agencies include: –Federal Railroad Administration –Surface Transportation Board –Federal Transit Administration

6. COPYRIGHT © AREMA 2008 16: 6 of 36 The U.S. Army Corps of Engineers (USACE) and the Rivers and Harbors Act of 1899. Passage of the Clean Water Act in 1972 gave the USACE authority over dredging and filling in “waters of the U.S.” including wetlands. The USACE issues three types of permits: –Nationwide –General –Individual Why is this important to Railroads? Clean Water Act

7. COPYRIGHT © AREMA 2008 16: 7 of 36 In 2001 the U.S. Supreme Court ruled that the USACE does not have jurisdiction over isolated wetlands (SWANCC v. USACE). In 2006 the Court further defined jurisdiction over adjacent waters (Rapanos/Carabell v. United States) What does this mean for Railroads? What is Jurisdictional?

8. COPYRIGHT © AREMA 2008 16: 8 of 36 US ACE Wetland Definition (The 3 Criteria) 1) Hydrophytic Vegetation 2) Hydric Soil3) Wetland Hydrology

9. COPYRIGHT © AREMA 2008 16: 9 of 36 Wetland Permitting Process Contact Federal, State, and Local Agencies early. Conduct a Preliminary Jurisdictional Determination.. Apply for Permits. Allow up to 120 days to process. Expect questions from Agencies during public involvement process.

10. COPYRIGHT © AREMA 2008 16: 10 of 36 Clean Water Act Best Management Practices BMPs – policies, practices, or procedures implemented to prevent surface water degradation from an activity. Storm Water Pollution Prevention Plans (SWPPP) Spill Prevention Control and Countermeasure Plans (SPCC)

11. COPYRIGHT © AREMA 2008 16: 11 of 36 Endangered Species Act What is an endangered species? “ Endangered” is any animal or plant that is endangered of extinction. “Threatened” is any animal or plant that is likely to become endangered in the near future. “Critical Habitat” area which maintains the feature necessary for protection. Federally Threatened Lakeside Daisy (Hymenoxys herbacea (=acaulis var. glabra)) Federally Endangered Humpback Sucker (Xyrauchen texanus)

12. COPYRIGHT © AREMA 2008 16: 12 of 36 Endangered Species Act Application to My Project Affects habitat or critical habitat of a listed species, and/or Involves a “taking” of a listed species. Examples If the project requires permits, licenses, funds, or other authorizations from federal agencies, consultation must occur to determine if the project:

13. COPYRIGHT © AREMA 2008 16: 13 of 36 Section 106:Historic Preservation Act What are they and how are they defined? National Historic Preservation Act of 1966, as amended (16U.S.C470f) Native American Graves Protection and Repatriation Act (P.L. 101-601) Archaeological Resource Protection Act Archaeological, prehistoric, or historic sites, structures, and/or artifacts that provide information on the ritual, spiritual, developmental, and/or organizational structure of a past civilization or group of inhabitants.

14. COPYRIGHT © AREMA 2008 16: 14 of 36 Cultural Resource Examples Historic Buildings/Districts Burial Sites Campsites Spiritual Sites Churches/Cemeteries Trails Tunnels Towers Bridge Miscellaneous Structures

15. COPYRIGHT © AREMA 2008 16: 15 of 36 CERCLA/Phase I ESA What is it? A Phase I Environmental Site Assessment is the essential first step in determining whether contamination (for example hazardous wastes) exists on a property. When should it be conducted? Completed before proceeding with additional site investigations or when property ownership is transferred.

16. COPYRIGHT © AREMA 2008 16: 16 of 36 CERCLA/Phase I ESA The report includes record reviews, interviews and physical property inspections to identify areas of potential hazardous substance contamination. The following details what may be included in the visual and physical inspection: Buildings int. & ext. Facility grounds Rail spurs or sidings Above or below ground pump stations Rail or truck loading/unloading docks or areas Chemical storage cabinets or closets Underground/above ground storage tanks Transformers Stormwater retention ponds Air vents and ducts Stained areas (pavement, soil, etc.) Pools of liquid Areas of fill material

17. COPYRIGHT © AREMA 2008 16: 17 of 36 RCRA/Hazardous Waste What is a Hazardous Waste? Generator is responsible for wastes from point of generation to the point of disposal Many hazardous wastes are harmful at very small concentrations Never mix hazardous waste with other wastes Examples of generated hazardous waste

18. COPYRIGHT © AREMA 2008 16: 18 of 36 CERCLA/Brownfield Sites Old Contaminated Industrial Sites EPA defined as: “abandoned, idled or underused industrial and commercial facilities were expansion or redevelopment is contaminated” BeforeAfter

19. COPYRIGHT © AREMA 2008 16: 19 of 36 Clean Air Act Primary Standards are those protective of human health Secondary Standards are those protective of the environment The Clean Air Act of 1970 was established “to protect and enhance the quality of the Nation’s air resources so as to promote public health and welfare and the productive capacity of its population.”

20. COPYRIGHT © AREMA 2008 16: 20 of 36 Clean Air Act Non-attainment areas are areas of the Country where air pollution levels persistently exceed the national ambient air quality standards. Non- attainment pollutants include: Ozone Carbon Monoxide Nitrogen Dioxide Sulfur Dioxide Particulate Matter Lead

21. COPYRIGHT © AREMA 2008 16: 21 of 36 Railroad Noise Railroad Noise Basics: Noise in our environment can be described by three characteristics -- loudness, pitch, and time variation. Sound is measured the way the human ear interprets sound. To accomplish this a descriptor called "A- weighted sound level.

22. COPYRIGHT © AREMA 2008 16: 22 of 36 Railroad Noise Noise Annoyance FRA Noise Criteria

23. COPYRIGHT © AREMA 2008 16: 23 of 36 Railroad Noise Major Sources of Railroad Noise Train Horns Wheels & Couplers Jointed Rail Power Units Noise Mitigation Options Quiet Zones Wayside Horns Low Long Berms/Walls CWR Building Modifications Relocating Receptor

24. COPYRIGHT © AREMA 2008 16: 24 of 36 Railroad Vibration Vibration (VdB) can cause damage to structures and annoyance to receptors. Vibration Mitigation Options Maintenance procedures #1, Location and design of special trackwork, Vehicle modifications, Changes in the track support system, Building modifications, Adjustments to the vibration transmission path, Operational changes.

25. COPYRIGHT © AREMA 2008 16: 25 of 36 Clean Air Act/Asbestos Asbestos is a natural mineral fiber that is known for its strength and fire-resistant properties. It can be found in: –Building materials, –Tanks and piping insulation, –Brake shoes May run into asbestos problem during a demolition and renovation project. Note, a qualified asbestos hygienist must survey the area.

26. COPYRIGHT © AREMA 2008 16: 26 of 36 Railroad Environmental Benefits Reduces Air Pollution and Energy Efficiency Reduced Noise Pollution Wetlands Protection and Reduced Water Pollution Reduced Light Pollution Brownfields Reclamation and Recycling Historic and Ecological Preservation Benefits Major economic benefits Reduced accident rate

27. COPYRIGHT © AREMA 2008 16: 27 of 36 Canadian Regulations Important Canadian environmental laws include: Canadian Environmental Protection Act Canadian Environmental Assessment Act Fisheries Act Species at Risk Act Navigable Water Protection Act Migratory Birds Convention Act Federal Policy on Wetlands Conservation

28. COPYRIGHT © AREMA 2008 16: 28 of 36 Mexican Regulations The United Mexican States mandates preservation and restoration of the environment through the General Law of Ecological Equilibrium and Environmental Protection. The Secretariat of Social Development (SEDESOL) has overall jurisdiction over environmental laws.

29. COPYRIGHT © AREMA 2008 16: 29 of 36 Case Examples Emergency Situations Normal Operations

30. COPYRIGHT © AREMA 2008 16: 30 of 36 Emergencies Scenario 1- Potential Bridge or Culvert Washout During Flooding Initial Setting: The project site is located at the crossing of a large stream-fed emergent wetland by the railroad tracks. Heavy rains have resulted in flood conditions in the stream and wetland. The railroad track crossing forms a partial dam across the wetland, constricting flow through the bridge crossing, and several culvert crossings off the main channel of the stream. Flood flows are causing erosion at the bridge abutment, and flood levels are approaching the top of the tracks threatening erosion under the tracks and disruption of train service. Partial blockage of the culverts results in elevation of flood waters. Brand X railroad response is required between 6PM and 10PM after normal business hours.

31. COPYRIGHT © AREMA 2008 16: 31 of 36 Scenario 1/Issues Issues: There is an immediate Risk to life and property, which qualifies this project as an emergency, the primary emergency issues are: –The bridge abutment must be stabilized –Flows over the tracks should be alleviated –Establishment of flows through the culverts would prevent excessive retention of flood flows and alleviate flows over the tracks –large wetland crossing, flood, erosion and sedimentation

32. COPYRIGHT © AREMA 2008 16: 32 of 36 Scenario 1/Actions Approach and Actions. There are several important factors that must be immediately evaluated: –Immediate response by railroad crews will prevent further damage to the bridge and tracks, and allow service to continue. –The required work must be performed in a wetland and waters subject to specific permit requirements. –Railroad staff does not know if any species of concern are present in the wetland and work areas. –Railroad response actions could directly affect the wetland in the work areas as well as result in indirect effects in the wetland and stream.

33. COPYRIGHT © AREMA 2008 16: 33 of 36 Normal Operations Scenario 2- Track Replacement with Grading Work Initial Setting: The project is located in an area running parallel to a stream. The proposed work involves upgrading a section of track that will involve minor grading that may result in discharges to the adjacent stream. The stream is a major trout fishery and the entire project area is surrounded by lands managed by the BLM.

34. COPYRIGHT © AREMA 2008 16: 34 of 36 Scenario 2/Issues Issues. This project is part of regular system maintenance and upgrades. It is not an emergency project. The primary issues that must be addressed are: –The work will be performed entirely within the Railroad ROW –The work does not involve discretionary approvals from County or local agencies. –The work will be in close proximity to the stream, which is a habitat of concern. –Discharge of material to the stream may occur.

35. COPYRIGHT © AREMA 2008 16: 35 of 36 Scenario 2/Actions Approach and Actions. There are several important factors that must be evaluated: Railroad X has sufficient time to evaluate the project for potential adverse environmental effects, to develop design plans to implement the work without adverse effects, and to obtain appropriate environmental and other approvals before implementing any work. Work in the stream can be avoided, including avoidance of discharges to the stream. It will be important to implement construction BMPs to avoid discharges to the stream. The level of concern for the stream warrants an onsite monitor during construction in this area. Coordination with the State DFG, Corps, and BLM is warranted.

36. COPYRIGHT © AREMA 2008 16: 36 of 36 Questions ? Authors: Brian F. Kovol Restoration Science and Engineering (907) 278-1023 bkovol@gci.net Paul Bollinger Bollinger Lach and Assoc. (630) 990-1385 pbollinger@bollingerlach.com

37. COPYRIGHT © AREMA 2008 16: 37 of 36 REVISION HISTORY