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>From the Surface Transportation Board, Washington, D.C.
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The Surface Transportation Board issued a decision today providing Entergy
Arkansas, Inc. and Entergy Services, Inc. (Entergy) an opportunity to amend
its complaint challenging an interchange commitment contained in a lease
between Union Pacific Railroad Company (UP) and the Missouri & Northern
Arkansas Railroad Company, Inc. (MNA). The Board said that Entergy may
pursue its interests using the section of the Interstate Commerce Act that
deals with the rights and obligations of rail carriers to interchange with
one another.
The Board indicated that it would defer ruling on Entergy's
request that the Board revoke the prior approval of the lease
agreement. The Board said that if Entergy does not obtain
relief under section 10705 -- or Entergy declines to pursue
that course -- the Board will then decide whether approval of
the lease between UP and MNA should be revoked, modified or
left in place.
In a complaint filed on February 19, 2008, Entergy Arkansas,
Inc. and Entergy Services, Inc. v. Union Pacific Railroad
Company and Missouri & Northern Arkansas Railroad Company,
Inc., Docket No. 42104, Entergy asked the Board to revoke its
approval of a 1992 lease between UP and MNA, in which UP leases
300 miles of track to MNA for free if it feeds 95 percent or
more of its freight traffic to UP. The utility's Newark, Ark.,
power plant is served only by MNA. Entergy claims that MNA's
lease with UP effectively rules out using another carrier to
transport coal from Wyoming's Powder River Basin to an
interchange with MNA's tracks and that enforcement of the
interchange commitment is an unreasonable practice.
The Board's decision said that Entergy can request that the
Board use its authority under section 10705 to order MNA to
interchange with a long-haul carrier other than UP. The Board
stated that it can require a carrier to establish a new
through-route with another carrier under Section 10705 when
such a route is needed "to provide adequate, and more efficient
or economic transportation" and invited Entergy to submit
argument and evidence on these issues. The Board indicated
that resolution of the case under section 10705 could "directly
address and remedy the precise problem about which Entergy
complains." The Board also explained that the revocation of
lease approval that Entergy seeks in its complaint "would be
far broader in scope and effect" and could affect other
entities. The Board also determined that relief was not
available under the unreasonable practices and pooling
provisions cited by Entergy in its complaint.
The decision (
http://www.stb.dot.gov/decisions/readingroom.nsf/WebDecisionID/38972?OpenDocument
)
in Docket No. 42104 was issued today, June 26, 2009. That
decision is available for viewing and downloading via the
Board's Web site, at http://www.stb.dot.gov, under "E-LIBRARY,"
then under "Decisions & Notices," beneath the date "06/26/09."
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