SURFACE TRANSPORTATION BOARD

Third-Party Contracting

October 16, 2018 by Olawale Adekoya

The Surface Transportation Board’s (STB) Office of Environmental Analysis (OEA) often uses third-party contractors to assist in preparing environmental documentation in STB proceedings.  Third-party contracting is a voluntary arrangement in which the applicant pays for a contractor to assist OEA by developing environmental analyses necessary for compliance with NEPA and related environmental laws.  The third-party contractor works solely under OEA’s direction, control, and supervision.

The Council on Environmental Quality’s (CEQ) regulations implementing NEPA expressly permit the use of third-party contractors in the preparation of an EA or an EIS.  40 C.F.R. § 1506.5(c).  According to CEQ’s regulations, agencies using contractors to assist in the preparation of environmental documents will be responsible for selecting the contractors, will provide the contractors with guidance and supervision in the preparation of the document, and will independently evaluate the document before approval.  Contractors must sign a disclosure statement prior to beginning work, indicating that they are disinterested parties to the project.  The Board has adopted its own regulations that specifically permit the use of third-party contractors, if approved by OEA.  49 C.F.R. § 1105.10(d).

In 2001, the Board issued a policy statement that provides more detail on the process for selecting and overseeing the work of third-party contractors.  The policy statement explains that, even when a third-party contractor is used, it is OEA, not the applicant, that is in control of the preparation of the environmental analysis (even though the applicant is paying the contractor’s bills) and that the applicant will not attempt to influence the contractor’s work.  For more information on the role of third-party contractors in environmental reviews, please review the policy statement here.

OEA maintains a list of approved third-party contractors, composed of individuals and firms with expertise and experience in the environmental review of rail or transportation projects.  (The list of OEA-approved third-party contractors is provided below.)  OEA’s process allows the applicant to have some input in the selection of the third-party contractor, but the Board’s environmental regulations at 49 C.F.R. § 1105.4(j) make it clear that, “to avoid any impermissible conflict of interest . . . the railroad may not be responsible for the selection or control of independent contractors.”  Rather, it is OEA that is ultimately responsible for selecting the third-party contractor.

How to Become an OEA-Approved Third-Party Contractor

To be considered as a third-party contractor, please submit a statement of qualifications and capabilities demonstrating your experience in preparing environmental assessments, environmental impact statements, and other related environmental documentation.  This should include resumes of key staff; detailed overviews of NEPA projects and work products, specifically freight railroad and linear transportation projects; and compliance with the National Historic Preservation Act (i.e., “Section 106”).

Resumes should include NEPA-related work experience, transportation project experience, education and relevant training and certification. Project overviews should be sufficiently detailed to demonstrate competence in subject areas relevant to NEPA analysis, such as noise analysis, wetland delineation, biological resource surveys, air emissions modeling, and environmental justice evaluations.  Projects with a Section 106 component should highlight archeological surveys, collaboration with Tribes, and preservation efforts taken.

In addition, companies should include the name, e-mail address, and phone number of the contact person to be displayed on the Third-Party Contractor list below.  Please maintain a record of any approval date because you must resubmit all supporting documentation every three years in order to remain listed.

Statements of qualification in PDF format should be e-mailed to Adam Assenza in OEA at Adam.Assenza@stb.gov.

List of Third-Party Contractors