N TH NTD TT RT F PPL FR TH NNTH RT - Nevada · N TH NTD TT RT F PPL FR TH NNTH RT 0. / I I TT F...

4IN THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT0

-. / IL I

STATE OF NEVADA, r

Petitioner,

MA

Case No.09_71O15

UNITED STATES DEPARTMENTOF ENERGY,

Respondent.

PETITION FOR REVIEW

1. Notice is hereby given this seventh day of April, 2009, that pursuant to rule

15(a) of the Federal Rules of Appellate Procedure, Circuit Rule 15-1, and sections

1 19(a)(1)(A) and (D) of the Nuclear Waste Policy Act ("NWPA"), 42 U.S.C. §

10139(a)(1)(A), (D), the State of Nevada ("Nevada") petitions this Court for

review of the U.S. Department of Energy's ("DOE's") final decision recorded in

its Record of Decision and Floodplain Statement of Findings Nevada Rail

Alignment for the Disposal of Spent Nuclear Fuel and High Level Radioactive

Waste at Yucca Mountain, Nye County, Nevada, published in the Federal Register

on October 10, 2008 ("Record of Decision"). (73 Fed. Reg. 60247, et seq.) As part

of that review, Nevada also requests the Court to review the adequacy of

1

Case: 09-71015, 04/07/2009, ID: 6874802, DktEntry: 1-4, of 36

environmental impact statements, identified below, that DOE relied upon in

support of its Record of Decision. A copy of DOE's Record of Decision is attached

to the concurrently filed Civil Appeals Docketing Statement.

2. In the Record of Decision, DOE made its final determination to construct

and operate a railroad along a rail alignment within the Caliente corridor to the

proposed geologic repository for high-level nuclear waste and spent fuel at Yucca

Mountain, in Nye County, Nevada. DOE also decided to allow shipments of

general freight on the rail line (the Shared-Use Option). The rail line, if

constructed, would proceed more than 300 miles to Yucca Mountain from an

interchange point near Caliente, in Lincoln County, Nevada.

3. DOE's Record of Decision relied upon several environmental impact

statements in support of its final agency action, including:

a. Final Supplemental Environmental Impact Statement for a Geologic

Repository for the Disposal of Spent Nuclear Fuel and High-Level Radioactive

Waste at Yucca Mountain, Nye County, Nevada (DOE/EIS-0250E-S1) (Final

Repository SEIS).

b. Final Supplemental Environmental Impact Statement for a Geologic

Repository for the Disposal of Spent Nuclear Fuel and High-Level Radioactive

Waste at Yucca Mountain, Nye County, Nevada - Nevada Rail Transportation

Corridor (DOE/EIS-0250E-S2) (Nevada Rail Corridor SEIS).


C. Final Environmental Impact Statement for a Rail Alignment for the

Construction and Operation of a Railroad in Nevada to a Geologic Repository at

Yucca Mountain (DOE/EIS-0369) (Rail Alignment EIS).

4. Nevada seeks this Court's review on the ground that the final action

recorded in the Record of Decision, and its supporting environmental review, fail

to comply with applicable laws, including the National Environmental Policy Act

(NEPA) (42 U.S.C. §4321, et seq.); the Nuclear Waste Policy Act (NWPA) (42

U.S.C. §10101, et seq.); and the Interstate Commerce Act, as amended by the

Interstate Commerce Commission Termination Act (ICA) (49 U.S.C. § 10101, et

seq.). Due to the deficiency of its underlying environmental review, DOE failed to

analyze significant environmental impacts and mitigation of these impacts, and

failed to make a lawful comparison between the project and alternatives, including

the "no action" alternative. In making its final decision without complying with

NEPA, the NWPA, and the ICA, DOE also acted arbitrarily and capriciously in

violation of the Administrative Procedure Act ("APA," 5 U.S.C. § 500, et seq.)

5. Pursuant to section 119(a)(2) of the NWPA, 42 U.S.C. § 10139(a)(2),

Nevada is solely located, and has its principal offices, within the Ninth Judicial

Circuit.

6. DOE's Record of Decision, and the environmental impact statements relied

upon therein, were prepared in connection with DOE's proposal for a high-level

3


nuclear waste repository at Yucca Mountain. DOE's application for a license to

construct that repository is presently pending in a proceeding before the Nuclear

Regulatory Commission (NRC) (U.S. Department of Energy (High Level Waste

Repository) Docket No. 63-001-HLW.) Nevada has sought intervention and filed

numerous contentions in that NRC proceeding, including NEPA compliance issues

relating to transportation and DOE's Caliente rail alignment plan. DOE has taken

the position that transportation issues are not properly within the scope of the

NRC's subject matter. Although the NRC will ultimately decide whether

transportation issues and related NEPA compliance are properly before it, it is

unlikely to make that determination before the time to expires to file a petition for

review in response to DOE's Record of Decision under 42 U.S.C. § 10139(a)(1).

7. Nevada is also a stakeholder and party of record in a pending proceeding

before the Surface Transportation Board, in which DOE has applied, under 49

U.S.C. § 10901, for a certificate of public convenience and necessity (PCN) to

operate its proposed Caliente line through the Nevada counties of Lincoln, Nye and

Esmerelda (SIB Finance Docket No. 35106). Although the STB will ultimately

need to address the scope of the transportation issues pending before it, it is

unlikely to make that determination before the time to expires to file a petition for

review in response to DOE's Record of Decision under 42 U.S.C. § 10 13 9(a)(1).

4


8. Because Nevada cannot predict the outcome of the decisions before the NRC

and STB referenced in paragraphs 6 and 7, Nevada files this petition to protect its

right to ensure full review of DOE's Record of Decision under section

1 19(a)(1)(A) of the NWPA (42 U.S.C. § 10139(a)(1)(A)), and of the

environmental review relied upon in its Record of Decision under section

1 19(a)(1)(D) of the NWPA (42 u.s.c. § 10139(a)(1)(D)).

9. Nevada requests as relief that this Court:

a. declare that DOE's action recorded in the Record of Decision is

inconsistent with NEPA, the NWPA, and the ICA, and pursuant to the

Administrative Procedure Act, 5 U.S.C. § 706(2)( A), set aside the decision as

arbitrary and capricious, or an abuse of discretion, contrary to law;

b. declare that DOE's environmental review supporting its Record of

Decision is inconsistent with NEPA, the NWPA, and the ICA, and pursuant to the

Administrative Procedure Act, 5 U.S.C. § 706(2)(A), set aside the decision as

arbitrary and capricious, or an abuse of discretion, contrary to law;

C. issue injunctive relief as appropriate;

d. award petitioner costs and attorney's fees; and

e. grant such other relief as the Court may deem appropriate.

Dated: April 7, 2009 Respectfully submitted,

Catherine Cortez MastoNevada Attorney General

5


Marta AdamsChief Deputy Attorney GeneralBureau of Government AffairsAttorney General's Office100 North Carson StreetCarson City, Nevada 89701-4747Tel.: (775) 684-1237

Egan, Fitzpatrick & Malsch, PLLCCharles J. Fitzpatrick12500 San Pedro Avenue, Suite 555San Antonio, TX 78216Tel: (210) 496-5001Fax: (210) 496-5011Martin G. Malsch2001 K Street, N.W., Suite 400Washington, D.C. 20006Tel: (202) 662-2103Fax: (202) 662-2105

Rossmann and Moore, LLPAntonio Rossmann*Roger B. MooreJennifer L. Seidenberg380 Hayes Street, Suite OneSan Francisco, CA 94102Tel: (415) 861-1401Fax: (415) 861-1822

By:

1ger B. Moore

Attorneys for Petitioner State of Nevada

* Counsel of Record

Attorneys for Petitioner


DECLARATION OF SERVICE

Case Name: STATE OF NEVADA v. UNITED STATES DEPARTMENT OF ENERGY

0 me

I declare:

I, Nayelli Gonzalez, hereby declare under penalty of perjury as follows: I am over theage of 18 years and am not a party to the within action. My business address is 380 HayesStreet, Suite One, San Francisco, California 94102.

On April 7, 2009, I served the PETITION FOR REVIEW by placing a true copy thereofenclosed in a sealed envelope with the U.S. FIRST CLASS MAIL (and also by FEDERALEXPRESS NEXT DAY SERVICE where noted), addressed as follows:

[SEE A TTACHED SERVICE LIST]

I declare under penalty of perjury under the laws of the State of California the foregoing is trueand correct and that this declaration was executed on April 7, 2009 at San Francisco, California.

NAYELLI GONZALEZDeclarant

Signature


SERVICE LIST

April 6, 2009

*(copies furnished via Federal Express NextDay Service)Martha S. Crosland, Esq.Nicholas P. DiNunzio, Esq.James Bennett McRaeCyrus Nezhad, Esq.Christina C. Pak, Esq.U.S. Department of EnergyOffice of General Counsel1000 Independence Avenue S.W.Washington, DC 20585(202) 586-5000, Tel.: (202) 586-5793Fax: (202) 586-4403

*(copies furnished via Federal Express NextDay Service)Donald J. Silverman, Esq.Alex S. Polonsky, Esq.Counsel for the U.S. Department of EnergyMorgan, Lewis & Bockius LLP1111 Pennsylvania Ave., NWWashington, DC 20004Tel. (202) 739-3000Tel. (202) 739-5502Fax: (202) 739-3001

*(copies furnished via Federal Express NextDay Service)Brian HembacherCalifornia Attorney General's Office300 South Spring StreetLos Angeles, CA 90013Tel. (213) 897-2638Fax: (213) 897-2802

*(copies furnished via Federal Express NextDay Service)U.S. Department of JusticeAttorney General of the United States950 Pennsylvania Ave, NWWashington, DC 20530-0001

Marian L. Zobler, Esq.Mitzi A. Young, Esq.

Margaret J. Bupp, Esq.Kevin C. Roach, Esq.U.S. Nuclear Regulatory CommissionOffice of Commission AppellateAdjudicationMail Stop 0-15D21Washington, DC 20555-0001Tel. (301) 415-7000, Tel. (301) 415-1523Fax: (301) 415-3716

Kelly L. Faglioni, Esq.Donald P. Irwin, Esq.Michael R. Shebelskie, Esq.Counsel for the U.S. Department of EnergyHunton & Williams LLPRiverfront Plaza, East Tower951 East Byrd StreetRichmond, VA 23219Tel. (804) 788-8200, (804) 788-7334Fax: (804) 788-8218

Barry S. Neuman, Esq.Counsel for Lincoln County, NevadaCarter Ledyard & Millburn, LLP1401 Eye Street, N.W., Suite 300Washington, DC 20005Tel. (202) 898-1515Fax: (202) 898-1521

Bret Whipple, Esq.Counsel for Lincoln County, Nevada1100 S. Tenth StreetLas Vegas, NV 89017Tel. (702) 257-9500Fax: (702) 974-4008

Robert Andersen, Esq.,Counsel for Nye County, NevadaAckerman Senterfitt801 Pennsylvania Avenue, NW, #600Washington, DC 20004Tel. (202) 393-6222Fax: (202) 393-5959


SERVICE LIST

April 6, 2009

Gregory Barlow, Esq.Lincoln County District Attorney1 Main StreetPioche, NV 89043Tel. (775) 962-5171Fax: (775) 962-5582

Jeffrey VanNiel, Esq.Counsel for Nye County, Nevada530 Farrington CourtLas Vegas, NV 89123Tel. (702) 896-0458Fax: (702) 896-0459

Elizabeth A. Vibert,Deputy District AttorneyClark County, Nevada500 S. Grand Central ParkwayLas Vegas, NV 98155Tel. (702) 455-4761Fax: (702) 382-5178

Alan I. Robins, Esq.Debra D. Roby, Esq.Counsel for Clark County, NevadaJennings, Strouss & Salmon1700 Pennsylvania Avenue, NW, Suite 500Washington, DC 20006-4725Tel. (202) 328-3500Fax: (202) 328-6918

Bryce Loveland, Esq.Counsel for Clark County, NevadaJennings, Strouss & Salmon8330 W. Sahara Avenue, #290Las Vegas, NV 89117

Theodore Beutel, District AttorneyEureka County, NevadaOffice of the District Attorney701 S. Main Street, Box 190Eureka, NV 89316-0190

Robert F. List, Esq.Jennifer A. Gores, Esq.Counsel for Churchill, Esmeralda, Lander,and Mineral counties, NevadaArmstrong Teasdale, LLP1975 Village Center circle, Suite 140Las Vegas, NV 89134-6237Tel. (702) 733-6700Fax: (702) 733-9664

Richard Sears, District AttorneyWhite Pine County, NevadaOffice of the District Attorney801 Clark Street, #3Ely, NV 89301Tel. (775) 289-8282Fax: (775) 2897-1559

Greg James, Attorney at lawCounsel for Inyo County, California710 Autumn Leaves CircleBishop, CA 93514Tel. (760) 873-6283Fax: (760) 873-7095

John H. Huston. Attorney at LawCounsel for Caliente Hot SpringsResort LLC6772 Running Colors AvenueLas Vegas, NV 89131Tel. (702) 270-9290Fax: (702) 270-9291

Ellen C. Ginsberg, General CounselMichael A. Bauser, Deputy General CounselAnne W. Cottingham, Esq.Nuclear Energy InstituteOffice of the General Counsel1776 I Street, NW Suite 400Washington, DC 20006-3708Tel. (202) 739-8140Fax: (202) 785-4019


SERVICE LIST

April 6, 2009

David A. Repka, Esq.William A. Horin, Esq.Counsel for the Nuclear Energy InstituteWinston & Strawn LLP1700 K. Street, N.W.Washington, DC 20006-3817Tel. (202) 282-5726Fax: (202) 282-5100

Jay E. Silberg, Esq.Timothy J.V. Walsh, Esq.Counsel for the Nuclear Energy InstitutePillsbury Winthrop Shaw Pittman LLP2300 N. Street, N.W.Washington, DC 20037-1122

Darcie L. Houck. Esq.

Steven A. Heinzen, Esq.Douglas M. Poland, Esq.Hannah L. Renfro, Esq.Godfrey & Kahn, S. CCounsel for Timbisha Shoshone YuccaMountain Oversight Program Non-ProfitCorporation.One East Main Street, Suite 500P.O. Box 2719Madison, WI 53701-2719

Arthur J. Harrington, Esq.Counsel for Timbisha Shoshone YuccaMountain Oversight Program Non-ProfitCorporationGodfrey & Kahn, S.C.780 N. Water Street

John M. Peebles, Esq. Milwaukee, WI 53202Counsel for Timbisha Shoshone TribeFredericks, Peebles & Morgan LLP1001 Second StreetSacramento, CA 95814Tel. (916) 441-2700Fax: (916) 441-2067

Curtis G. Berkey, Esq.Rovianne A. Leigh, Esq.Scott W. Williams, Esq.Counsel for the Native Community

Action CouncilAlexander, Berkey, Williams& Weathers LLP

2030 Addison Street, Suite 410Berkeley, CA 94704Tel. (510) 548-7070Fax: (510) 548-7080


IN THE UNITED STATES COURT OF APPEALSFORTHENINTHCIRCUIT :

STATE OF NEVADA,

Petitioner, 09,-71015

MA

Case No.

UNITED STATES DEPARTMENTOF ENERGY,

Respondent.

REPRESENTATION STATEMENT

Pursuant to Circuit Rule 3-2, the State of Nevada, petitioner in this action,

identifies all parties to the action along with the names, addresses and telephone

numbers of their respective counsel.

Petitioner's Representation

Petitioner: State of Nevada

Petitioner's Counsel: Names, addresses and telephone numbers of all counsel are

listed in the signature section below.

Respondent's Representation

Respondent: United States Department of Energy

1


Respondent's Counsel:

Martha S. Crosland, Esq.Nicholas P. DiNunzio, Esq.James Bennett McRaeCyrus Nezhad, Esq.Christina C. Pak, Esq.U.S. Department of EnergyOffice of General Counsel1000 Independence Avenue S.W.Washington, DC 20585(202) 586-5000, Tel.: (202) 586-5793Fax: (202) 586-4403

Donald J. Silverman, Esq.Alex S. Polonsky, Esq.Counsel for the U.S. Department of EnergyMorgan, Lewis & Bockius LLP1111 Pennsylvania Ave., NWWashington, DC 20004Tel. (202) 739-3000Tel. (202) 739-5502Fax: (202) 739-3001

Dated: April 7, 2009 Respectfully submitted,

Catherine Cortez MastoNevada Attorney GeneralMarta AdamsChief Deputy Attorney GeneralBureau of Government AffairsAttorney General's Office100 North Carson StreetCarson City, Nevada 89701-4747Tel.: (775) 684-1237

2


Egan, Fitzpatrick & Malsch, PLLCCharles J. Fitzpatrick12500 San Pedro Avenue, Suite 555San Antonio, TX 78216Tel: (210) 496-5001Fax: (210) 496-5011Martin G. Malsch2001 K Street, N.W., Suite 400Washington, D.C. 20006Tel: (202) 662-2103Fax: (202) 662-2105

Rossmann and Moore, LLPAntonio Rossmann*Roger B. MooreJennifer L. Seidenberg380 Hayes Street, Suite OneSan Francisco, CA 94102Tel: (415) 861-1401Fax: (415) 861-122.

RogerB. Moor,*-

Attorneys for Petitioner State of Nevada

* Counsel of Record




No.:

I declare:


On April 7, 2009, I served the REPRESENTATION STATEMENT by placing a true copythereof enclosed in a sealed envelope with the U.S. FIRST CLASS MAIL (and also byFEDERAL EXPRESS NEXT DAY SERVICE where noted), addressed as follows:

[SEE A TTACHED SERVICE LIST]




SERVICE LIST

April 6, 2009

*(copies furnished via Federal Express NextDay Service)Martha S. Crosland, Esq.Nicholas P. DiNunzio, Esq.James Bennett McRaeCyrus Nezhad, Esq.Christina C. Pak, Esq.U.S. Department of EnergyOffice of General Counsel1000 Independence Avenue S.W.Washington, DC 20585(202) 586-5000, Tel.: (202) 586-5793Fax: (202) 586-4403


*(copies furnished via Federal Express NextDay Service)Brian HembacherCalifornia Attorney General's Office300 South Spring StreetLos Angeles, CA 90013Tel. (213) 897-2638Fax: (213) 897-2802

* (copies furnished via Federal Express NextDay Service)U.S. Department of JusticeAttorney General of the United States950 Pennsylvania Ave, NWWashington, DC 20530-0001


Margaret J. Bupp, Esq.Kevin C. Roach, Esq.U.S. Nuclear Regulatory CommissionOffice of Commission AppellateAdjudicationMall Stop 0-15D21Washington, DC 20555-0001Tel. (301) 415-7000, Tel. (301) 415-1523Fax: (301) 415-3716

Kelly L. Faglioni, Esq.Donald P. Irwin, Esq.Michael R. Shebeiskie, Esq.Counsel for the U.S. Department of EnergyHunton & Williams LLPRiverfront Plaza, East Tower951 East Byrd StreetRichmond, VA 23219Tel. (804) 788-8200, (804) 788-7334Fax: (804) 788-8218





SERVICE LIST

April 6, 2009













SERVICE LIST

April 6, 2009



Darcie L. buck. Esq.John M. Peebles, Esq.Counsel for Timbisha Shoshone TribeFredericks, Peebles & Morgan LLP1001 Second StreetSacramento, CA 95814Tel. (916) 441-2700Fax: (916) 441-2067





Arthur J. Harrington, Esq.Counsel for Timbisha Shoshone YuccaMountain Oversight Program Non-ProfitCorporationGodfrey & Kahn, S.C.780 N. Water StreetMilwaukee, WI 53202


A- 11 (rev. 7/00)

rUNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

CIVIL APPEALS DOCKETING STATEMENT

PLEASE ATTACH ADDITIONAL PAGES IF NECESSARY.

TITLE IN FULL: DISTRICT: in/a . JUDGE: inia

DISTRICT COURT NUMBER: Inia

DATE NOTICE OF APPEAL FILED: IS THIS A CROSS APPEAL?

State of Nevada, Petitioner, v. United StatesDepartment of Energy, Respondent

E YESInla

IF THIS MATTER HAS BEEN BEFORE THIS COURT PREVIOUSLY,PLEASE PROVIDE THE DOCKET NUMBER AND CITATION (IF ANY):

BRIEF DESCRIPTION OF NATURE OF ACTION AND RESULT BELOW:

Nevada's petition for review challenges the final decision of the United States Department of Energy, recorded in theattached Record of Decision (ROD), and its supporting environmental impact statements. DOE chose a rail alignmentwithin the Caliente corridor to DOE's proposed high-level nuclear waste repository at Yucca Mountain, Nevada. DOE alsoallowed general freight shipments on the rail line. This case involves a petition for review of agency action, not an appeal.

PRINCIPAL ISSUES PROPOSED TO BE RAISED ON APPEAL:

Nevada alleges that DOE's ROD and environmental review fail to analyze significant environmental impacts and miti gation,and fail to make a lawful comparison between the project and alternatives. DOE's decision-making violated the NationalEnvironmental Policy Act, 42 U.S.C. § 4321, et seq..; the Nuclear Waste Policy Act, 42 U.S.C. § 10101, et seq.; theInterstate Commerce Act, as amended by the ICC Termination Act, 49 U.S.C. § 10101; and the APA, 5 U.S.C. § 500, et se q.

PLEASE IDENTIFY ANY OTHER LEGAL PROCEEDING THAT MAY HAVE A BEARING ON THIS CASE (INCLUDEPENDING DISTRICT COURT POST-JUDGMENT MOTIONS):

Nevada has raised, or plans to raise, related issues in pending proceedings before the Nuclear Regulatory Commissionaddressing DOE's Yucca Mountain license application (High Level Waste Repository Docket No. 63-001-HLW), and beforethe Surface Transportation Board addressing DOE's application for a certificate of public convenience and necessity (STBFinance Docket No 35106) California is filing a similar petition in this Court alleging NEPA and NWPA violations

DOES THIS APPEAL INVOLVE ANY OF THE FOLLOWING:

Possibility of SettlementF— Likelihood that intervening precedent will control outcome of appeal

Likelihood of a motion to expedite or to stay the appeal, or other procedural matters (Specify)

IPetitioner is likely to move this Court to hold this petition in abeyance pending NRC's decision-making on related issues.

F- Any other information relevant to the inclusion of this case in the Mediation Program

Possibility parties would stipulate to binding award by Appellate Commissioner in lieu of submission to judges


of 2

LOWER COURT DFORMATION

JURISDICTION DISTRICT COURT DISPOSITION

FEDERAL APPELLATE TYPE OF JUDGMENT/ORDER APPEALED RELIEF

FEDERAL FINAL DECISION OF E DEFAULT JUDGMENT E DAMAGES:QUESTION DISTRICT COURT E DISMISSAL/JURISDICTION SOUGHT $

E DIVERSITY INTERLOCUTORY r DISMISSAL/MERITSAWARDED

OTHER DECISION fl SUMMARY JUDGMENT(SPECIFY): APPEALABLE AS OF

RIGHTfl JUDGMENT/COURT DECISION

E JUDGMENT/JURY VERDICT

J— INJUNCTIONS:

fl PRELIMINARYPetition forreview under 42 E DECLARATORY JUDGMENT E PERMANENT

U.S.C. § 10139 INTERLOCUTORY E JUDGMENT AS A MATTER OF LAW E GRANTED

(Nuclear Waste ORDER CERTIFIEDBY DISTRICT JUDGE r OTHER (SPECIFY): E DENIED

Policy Act), Fed. E ATTORNEY FEES:Rule App. Proc.,rule 15, and

(SPECIFY):nla (no district court proceeding) SOUGHT $

Circuit Rule 15-111 AWARDED

E PENDINGOTHER(SPECIFY): ECOSTS:

Petition for review offinal agency decision

CERTIFICATION OF COUNSELI CERTIFY THAT:1. COPIES OF ORDER/JUDGMENT APPEALED FROM ARE ATTACHED.

2. A CURRENT SERVICE LIST OR REPRESENTATION STATEMENT WITH TELEPHONE AND FAX NUMBERS IS ATTACHED(SEE 9TH CIR. RULE 3-2).

3. A COPY OF THIS CIVIL APPEALS DOCKETING STATEMENT WAS SERVED IN COMPLIANCE WITH FRAP 25.

4.1 UNDERSTAND THAT FAILURE TO COMPLY WITH THESE FILING REQUIREMENTS MAY RESULT IN SANCTIONS,INCLUDING DISMISSAL OF THIS APPEAL.

Signature Date

COUNSEL WHO COMPLETED THIS FORM

NAME jRogerB. Moore

FIRM lRossmann and Moore, LLP

ADDRESS 1 3 80 Hayes Street, Suite One

CITY I SaI

n Francisco STATE1CA ZIP CODE

E-MAIL [email protected] TELEPHONE 1415-861-1401

FAX 1415-861-1822

**THIS DOCUMENT SHOULD BE FILED IN DISTRICT COURT WITH THE NOTICE OF APPEAL. **

**IF FILED LATE, IT SHOULD BE FILED DIRECTLY WITH THE U.S. COURT OF APPEALS.**


Federal Register/Vol. 73, No. 198/Friday, October 10, 2008/Notices 60247

SUPPLEMENTARY INFORMATION: The 2005BRAC Commission recommended theclosure of Fort McPherson no later than15 September 2011 and the relocation oftenant headquarters organizations toFort Sam Houston, Texas; Fort Eustis,Virginia; Fort Bragg/Pope Air ForceBase, North Carolina; and Shaw AirForce Base, South Carolina. The actionsat those places are subject to separateNEPA analysis.

Following closure, the property(approximately 487 acres) will be excesstoy needs. Accordingly, the Armyproposes to dispose of its real propertyinterests at Fort McPherson. The Armyhas recognized the McPherson PlanningLocal Redevelopment Authority(MPLRA) as the local reuse authority forreuse planning associated with FortMcPherson. The MPLRA released theFort McPherson Outreach and Land UsePlan in September 2007. The plan isavailable electronically at http://www.mcphersonredeveloprnent.com/comprehensive _reuse.htrnl.

The DES analyzed four alternatives:(1) Early Transfer—under which transferand reuse of the property would occurbefore environmental remedial actionhas been completed; (2) TraditionalDisposal—under which transfer andreuse of the property would occur onceenvironmental remediation is completefor individual parcels of the installation;(3) Caretaker Status—would beginfollowing the closure of the installationin the event that the Army is unable todispose of the property. Themaintenance of the property would bereduced to minimal activities necessaryto ensure security, health, and safety,and to avoid physical deterioration offacilities; and (4) No Action, underwhich the Army would continueoperations at Fort McPherson at levelssimilar to those occurring prior to theBRAC Commission's recommendationfor closure. Three reuse scenarios, basedon medium, medium-high, and highintensity levels of reuse, are evaluatedas secondary actions of disposal of FortMcPherson. These reuse scenariosencompass the level of reuse expectedunder the MPLRA's reuse plan andhigher and lower levels of reuse.

For either of the transfer alternatives,moderate adverse effects would beexpected to occur to aesthetics andvisual resources, noise, water resources,biological resources, cultural resources,transportation, and utilities. Reuseanalyzed in the DEIS could result insignificant adverse effects in the areas ofland use, air quality, socioeconomics,transportation, and utilities. TheMcPherson ImplementationRedevelopment Authority is authorizedto redevelop the installation in

accordance with the Reuse Plan.Disposal of the property for reuse inaccordance with the Reuse Plan wouldmitigate to less than significant thedirect and cumulative impacts ofdisposal and reuse.

The Army invites the public, tribalgovernments, local governments, andstate and federal agencies to submitwritten comments or suggestionsconcerning the alternatives and analysespresented in the DEIS. The public andgovernment agencies also are invited toparticipate in a public meeting whereoral and written comments andsuggestions will be received. A publicmeeting will be held at a convenientlocation near Fort McPherson. The date,time, and location will be announced inthe local news media. Copies of theDEIS will be available for review atseveral local libraries prior to the publicmeeting. The DEIS may also be viewedat http://www.rncphersonredevelopment. org and http://www.hqda.arrny.mil/acsirn/bractnepaeisdocs.htrn.

Addison D. Davis, IV,DeputyAssistant Secretary of the Army(Environment, Safety and OccupationalHealth).[FR Doc. E8-23990 Filed 10-9-08; 8:45 am]BILLING CODE 5710-08-M

ELECTION ASSISTANCE COMMISSION

Sunshine Act Notice

AGENCY: U.S. Election AssistanceCommission.ACTION: Notice of public meeting.

DATE & TIME: Wednesday, October 15,2008, 1-4 p.m.PLACE: National Press Club ofWashington, 529 14th St., NW., 13thFloor, Washington, DC 20045, (202)662-7500 (Metro Stop: Metro Center).AGENDA: Commissioners will meet andhold a panel discussion to examine keyissues facing election officials andjournalists in reporting election results,particularly in competitive states. Someof the topics include: (1) Voting systemstechnology; (2) non-traditional ballotssuch as provisional and absentee ballotsand ballots of military and overseascitizens; (3) time and procedures forgetting election results; (4) post-electionissues such as recounts and audits; (5)time zones, poll closings and reportingexit polls and election results.Participants will include mediarepresentatives, state election officialsand a discussion moderator.

This meeting will be open to thepublic.

PERSON TO CONTACT FOR INFORMATION:Sarah Litton, Telephone: (202) 566-3100.

Rosemary E. Rodriguez,Chair, U.S. Election Assistance Commission.[FR Doc. E8-24360 Filed 10-8-08; 4:15 pm]BILLING CODE 6820-KF-P

DEPARTMENT OF ENERGY

Record of Decision and FloodplainStatement of Findings—Nevada RailAlignment for the Disposal of SpentNuclear Fuel and High-LevelRadioactive Waste at Yucca Mountain,Nye County, NV

AGENCY: Office of Civilian RadioactiveWaste Management, U.S. Department ofEnergy.ACTION: Record of Decision.

SUMMARY: in July 2008, the Departmentof Energy (Department or DOE) issuedthe "Final Supplemental EnvironmentalImpact Statement for a GeologicRepository for the Disposal of SpentNuclear Fuel and High-LevelRadioactive Waste at Yucca Mountain,Nye County, Nevada—Nevada RailTransportation Corridor" (DOE/EIS-0250E-52) (hereafter referred to as thefinal Nevada Rail Corridor SEIS), the"Final Environmental impact Statementfor a Rail Alignment for theConstruction and Operation of aRailroad in Nevada to a GeologicRepository at Yucca Mountain, NyeCounty, Nevada" (DOE/EIS-0369)(hereafter referred to as the final RailAlignment EIS), and the "FinalSupplemental Environmental Imp actStatement for a Geologic Repository forthe Disposal of Spent Nuclear Fuel andHigh-Level Radioactive Waste at YuccaMountain, Nye County, Nevada" (DOE!EIS-0250E–S1) (hereafter referred to asthe final Repository SEIS). The finalNevada Rail Corridor SETS analyzed thepotential impacts of constructing andoperating a railroad for shipments ofspent nuclear fuel, high-levelradioactive waste, and other materials inthe Mina corridor, and DOE concludedthat the Mina corridor warranted furtheranalysis at the alignment level. Thisfurther, more detailed analysis ispresented in the final Rail AlignmentEIS, which analyzed the potentialenvironmental impacts of constructingand operating a railroad along railalignments in both the Caliente andMina rail corridors. The final RailAlignment EIS also analyzed' thepotential environmental impacts fromshipments of general freight (alsoreferred to as common carriage


60248 Federal Register/Vol. 73, No. 198/Friday, October 10, 2008/Notices

shipments or the Shared-Use Option) on Backgroundrilrr,,d in pithpr cnridr,r

The final Repository SETS analyzedthe potential environmental impacts ofthe construction, operation, andeventual closure of a repository at YuccaMountain. The final Repository SEISalso included the potential impacts fromnational transportation, as well as thepotential impacts in Nevada from theconstruction and operation of a railroadalong specific alignments in the Calienteand Mina rail corridors. DOE concludedin the final Repository SETS that thepotential impacts associated with therepository design and operational plansare similar in scale to the impactsanalyzed in the "Final EnvironmentalImpact Statement for a GeologicRepository for the Disposal of SpentNuclear Fuel and High-LevelRadioactive Waste at Yucca Mountain,Nye County, Nevada" (DOE/EIS-0250F,February 2002) (Yucca Mountain FinalEIS).

Based on the analyses in the final RailAlignment EIS, among otherconsiderations as discussed herein, theDepartment has decided to constructand operate a railroad along a railalignment within the Caliente corridor.DOE also has decided to allowshipments of general freight on the railline (Shared-Use Option). TheDepartment will obtain all regulatoryapprovals necessary to construct andoperate the railroad, and allow common–carriage shipments.

ADDRESSES: Copies of the final NevadaRail Corridor SEIS, final Rail AlignmentEIS, final Repository SETS, and thisRecord of Decision may be obtained bymailing a request to Dr. JaneSummerson at the U.S. Department ofEnergy, Office of Civilian RadioactiveWaste Management, 1551 HilishireDrive, Las Vegas, NV 89134, or bycalling 1-800-967-3477. Thesedocuments also may be obtained via theInternet at http://www.ocrwm.doe.gov.

FOR FURTHER INFORMATION CONTACT:Questions regarding these documentscan be submitted to Dr. Jane Summersonby mail or telephone at the aboveaddress or phone number. For generalinformation regarding the DOE NationalEnvironmental Policy Act (NEPA)process contact: Ms. Carol M.Borgstrom, Director, Office of NEPAPolicy and Compliance (GC-20), U.S.Department of Energy, 1000Independence Ave., SW., Washington,DC 20585, Telephone 202-586-4600, orleave a message at 1-800-472-2756.

SUPPLEMENTARY INFORMATION:

Pursuant to the Nuclear Waste PolicyAct of 1982, as amended (NWPA), andNEPA, DOE issued the Yucca MountainFinal EIS in February 2002. The YuccaMountain Final EIS analyzed aProposed Action under which DOEwould construct, operate, monitor andeventually close a geologic repository atYucca Mountain, including shipment ofspent nuclear fuel and high-levelradioactive waste from 72 commercialand five DOE sites to the YuccaMountain repository. DOE evaluated thepotential environmental impacts oftransporting spent nuclear fuel andhigh-level radioactive waste to therepository under a variety of modes,including legal-weight truck, rail,heavy-haul truck, and barge. Twonational transportation alternatives,referred to as the mostly legal-weighttruck alternative and the mostly railalternative, and three Nevadaalternatives, referred to as the legal-weight truck alternative, the railalternative, and the heavy-haul truckalternative, were evaluated. TheDepartment identified the mostly railalternative as its preferred mode oftransportation, both nationally and inthe State of Nevada, in the YuccaMountain Final EIS.

DOE stated in the Yucca MountainFinal EIS that, if it were to select themostly rail alternative (both nationallyand in Nevada), a rail line would needto be constructed to connect therepository site at Yucca Mountain to anexisting rail line in the State of Nevada.Accordingly, the Yucca Mountain FinalEIS evaluated in detail the potentialenvironmental impacts from theconstruction and operation of a rail linewithin five rail corridors—Caliente,Carlin, Caliente-Chalk Mountain, Jean,and Valley Modified. The Departmentdid not identify a preferred rail corridorin the Yucca Mountain Final EIS, butindicated it would do so at least 30 daysbefore making any decision on theselection of a rail corridor in which toconstruct a rail line in Nevada. OnDecember 29, 2003, the Departmentannounced in the Federal Register thatthe Caliente rail corridor was itspreferred corridor (68 FR 74951).

On April 8, 2004, DOE announced ina Record of Decision the selection of themostly rail alternative analyzed in theYucca Mountain Final EIS fortransporting spent nuclear fuel andhigh-level radioactive waste nationallyand within Nevada (69 FR 18557). DOEalso announced in that Record ofDecision that it had selected theCaliente rail corridor in which to

examine possible alignments forconstruction of a rail line in Nevada.

In September 2004, the State ofNevada filed a petition for review withthe United States Court of Appeals forthe District of Columbia Circuit,pursuant to Section 119 of the NWPA,seeking review of DOE's April 8, 2004,Record of Decision and thetransportation-related portions of theYucca Mountain Final EIS on which itwas based. Nevada claimed that inselecting a national transportation modeand Nevada rail corridor for theshipment of radioactive materials toYucca Mountain, DOE violated NEPAand NEPA implementing regulationsand acted in an arbitrary and capriciousmanner and contrary to law.

In an August 8, 2006, decision, theDistrict of Columbia Circuit deniedNevada's petition and rejected theState's claims on their merits. State ofNevada v. Department of Energy, 457F.3d 78, 89-93 (D.C. Cir. 2006). TheCourt held that DOE had met itsobligations under the Council onEnvironmental Quality regulations (40Code of Federal Regulations (CFR)1503.1(a)(2)) with respect toconsultation with other agencies; thatDOE had appropriately tiered itsproposed action analyses under 40 CFR1508.28; that DOE had taken therequisite hard look at the potential railcorridor environmental impacts; thatDOE's analysis of the environmentalimpacts of rail corridor selection in itsYucca Mountain Final EIS wasadequate; and that DOE's selection ofthe Caliente corridor therefore was notarbitrary or capricious.

On April 8, 2004, DOE announced inthe Federal Register its intent to preparean EIS under NEPA for the alignment,construction, and operation of a rail linefor shipments of spent nuclear fuel,high-level radioactive waste, and othermaterials related to the construction andoperation of a repository from a site nearCaliente, Lincoln County, Nevada, to ageologic repository at Yucca Mountain,Nye County, Nevada (69 FR 18565). TheFederal Register notice also announcedthe schedule for public scopingmeetings, and invited comments on thescope of the Rail Alignment EIS toensure that all relevant environmentalissues and reasonable alternativeswould be addressed.

During the public scoping process in2004, DOE received commentssuggesting that other rail corridors, inparticular the Mina route, beconsidered. Following review of thescoping comments, DOE helddiscussions with the Walker RiverPaiute Tribe and, in May 2006, theTribal Council informed DOE that it had



withdrawn a previous objection to thecompletion of an EIS studying thepotential transportation of spent nuclearfuel and high-level radioactive wasteacross its reservation.

On October 13, 2006, DOE announcedits intent to expand the scope of the RailAlignment EIS to incorporate analysis ofthe potential environmental impactsassociated with constructing andoperating a rail line within the Mina railcorridor (71 FR 60484). DOE indicatedthat it would supplement the railcorridor analysis of the Yucca MountainFinal EIS by evaluating the Mina railcorridor, and that it would update, asappropriate, the information andanalysis for other rail corridors analyzedin detail in the Yucca Mountain FinalEIS. DOE also indicated that it wouldinclude an analysis of alternativealignments within the Mina corridor atthe same level of detail as the ongoingalignment analysis for the Calientecorridor.

Also on October 13, 2006, DOEannounced its intent to prepare asupplement to the Yucca MountainFinal EIS to address modifications torepository design and operation planssince completion of the Yucca MountainFinal EIS (71 FR 60490). DOE indicatedthat it would evaluate the potentialenvironmental impacts of theconstruction, operation, and closure ofthe repository under the modifiedrepository design and operational plans,and would update the analysis andpotential environmental impacts oftransporting spent nuclear fuel andhigh-level radioactive waste to therepository under the mostly railalternative.

On April 17, 2007, the Walker RiverPaiute Tribal Council announced aresolution withdrawing support for theTribe's participation in the EIS process,and renewing the Tribe's past objectionto the transportation of nuclear wastethrough its reservation. In light of this,DOE identified the Mina alternative asnonpreferred in the draft Rail AlignmentEIS and subsequently in the final RailAlignment EIS.

On October 12, 2007, the Departmentannounced in the Federal Register theavailability of the draft Nevada RailCorridor SEIS, draft Rail Alignment EIS,and the draft Repository SETS (72 FR58071). DOE's Notice of Availabilityinvited interested parties to comment onthese NEPA documents during a 90-daypublic comment period that ended onJanuary 10, 2008. DOE held eight publichearings at locations in Nevada,California, and Washington, DC. TheDepartment received about 4,000comments from nearly 1,100commenters. DOE has considered all of

these comments, and responded asappropriate in the final Nevada RailCorridor SETS, the final Rail AlignmentEIS, and the final Repository SETS.

On July 11, 2008, the EnvironmentalProtection Agency announced in theFederal Register the availability ofDOE's final Nevada Rail Corridor SETS,final Rail Alignment EIS, and finalRepository SETS (73 FR 39958). Thefinal Nevada Rail Corridor SETSprovided a corridor-level analysis of theMina rail corridor, and updatedinformation, as appropriate, regardingthe other rail corridors analyzed indetail in the Yucca Mountain Final EIS.DOE concluded in the final Nevada RailCorridor SETS that (1) the Mina railcorridor warranted further study at thealignment level as a nonpreferredalternative, and (2) there were nosignificant new circumstances orinformation relevant to environmentalconcerns that would warrant furtherconsideration of the Carlin, Jean orValley Modified corridors at thealignment level.'

The final Rail Alignment EIS analyzedthe potential impacts of constructingand operating a railroad for shipmentsof spent nuclear fuel, high-levelradioactive waste, and other materialsalong the reasonable rail alignments 3 inthe Caliente and Mina rail corridors. 4 Arail alignment is an engineeredrefinement of a rail corridor in whichDOE would identify the location of arail line. A rail alignment comprisescommon segments and alternativesegments. A corridor is a strip of land400 meters (0.25 mile) wide throughwhich DOE would identify an alignmentfor the construction of the rail line. Thefinal Rail Alignment EIS also analyzedthe potential environmental impactsfrom common carriage shipments alongthose rail alignments (the Shared-UseOption).

The U.S. Air Force, SurfaceTransportation Board, Bureau of LandManagement, Lincoln County,Esmeralda County, Nye County, and theCity of Caliente, Nevada, werecooperating agencies in the preparation

1 DOE eliminated from further consideration theCaliente-chalk Mountain rail corridor, whichwould cross the Nevada Test and Training Range,because of U.S. Air Force concerns that a rail linewould interfere with military mission activities.

2 A transportation system incorporating the railline, operations support facilities, railcars,locomotives, and other related property andinfrastructure.

3 A engineered refinement of a rail corridor inwhich DOE would identify the location of a railline. A rail alignment comprises common segmentsand alternative segments, as discussed herein.

4 A corridor is a strip of land 400 meters (0.25mile) wide through which DOE would identify analignment for the construction of the rail line.

of the final Nevada Rail Corridor SETSand the final Rail Alignment EIS.

The final Repository SETS analyzedthe potential environmental impacts ofnational transportation, as well as thepotential impacts in Nevada, from theconstruction and operation of a railroadalong specific alignments in either theCaliente or the Mina corridor to ensurethat the full scope of potentialenvironmental impacts associated withthe proposed construction andoperation of the repository wereconsidered. DOE concluded in the finalRepository SETS that the potentialimpacts associated with the repositorydesign and operational plans are similarin scale to the impacts analyzed in theYucca Mountain Final EIS. Nye Countywas a cooperating agency in thepreparation of the final Repository SETS.

Proposed Action and Alternatives inthe Final Rail Alignment EIS

The final Rail Alignment EISexamined a Proposed Action and a NoAction Alternative. The Department'sProposed Action is to determine analignment (within a corridor), andconstruct and operate a railroad inNevada to transport spent nuclear fuel,high-level radioactive waste, and othermaterials from an existing rail line to arepository at Yucca Mountain.

Under the No Action Alternative,DOE would not select a rail alignmentwithin either the Caliente or Mina railcorridors for the construction andoperation of a railroad. If DOE were notto select a rail alignment in either theCaliente or Mina rail corridor, the futurecourse that it would pursue to meet itsobligation under the NWPA isuncertain.

There are two implementingalternatives under the ProposedAction—the Caliente ImplementingAlternative, under which theDepartment would construct theproposed railroad in the Caliente railcorridor, and the Mina ImplementingAlternative, under which theDepartment would construct theproposed railroad in the Mina railcorridor. In each rail corridor, DOEevaluated a series of common segmentsand the range of reasonable alternativesegments. Common segments areportions of the rail alignment for whichDOE has identified a single route for therail line. Alternative segments areportions of the rail alignment for whichDOE has identified multiple routes forthe rail line.

DOE also evaluated the Shared-UseOption under each implementingalternative. Under the Shared-UseOption, DOE would allow commoncarriage shipments on the rail line.



In addition to evaluating the potentialimpacts of constructing and operatingthe railroad, the final Rail AlignmentEIS identified and evaluated thefacilities needed to construct therailroad, such as quarries andconstruction camps, and to operate therailroad, such as staging yards andmaintenance facilities, under eachimplementing alternative. Additionaldescriptive information for thesefacilities, as well as other aspects of theimplementing alternatives, may befound in Chapter 2 of the final RailAlignment EIS.

Caliente Implementing Alternative—Preferred Alternative

A rail line in the Caliente rail corridorwould extend north from Caliente,Nevada, turn west and proceed to nearthe northwest corner of the Nevada Testand Training Range, and then continuesouth-southeast to Yucca Mountain (seeFigure S-3 of the Summary to the finalRail Alignment EIS). The rail line wouldrange in length from about 528 to 541kilometers (328 to 336 miles),depending on the combination ofalternative segments.

There are six common segments alongthe Caliente rail alignment starting withcommon segment 1 south of Panaca,Nevada, and moving west sequentiallyto common segment 6 near YuccaMountain. DOE evaluated alternativesegments at six locations along theCaliente rail alignment starting at theinterface with the Union PacificRailroad mainline near Caliente, Nevada(two alternative segments referred to asCaliente and Eccles), and moving westto Garden Valley (Garden Valleysegments 1, 2, 3 and 8), southwest of theSouth Reveille Wilderness Study Area(South Reveille segments 2 and 3), nearthe town of Goldfield (Goldfieldsegments 1, 3 and 4), north of ScottysJunction (Bonnie Claire segments 2 and3), and near Oasis Valley (Oasis Valleysegments 1 and 3). These commonsegments and alternative segments areshown in Figure S-3 of the Summary tothe final Rail Alignment EIS.

DOE anticipates that it would take 4to 10 years to construct the proposedrailroad. Construction of the railroadwould include construction of the railline, the infrastructure necessary tosupport the construction and operationof the railroad (for example, water wells,ballast quarries, construction camps),and operations support facilities.Construction activities would occurinside a 300-meter (1,000-foot) wide

5 coarse rock placed under the railroad tracks tosupport the railroad ties and improve drainagealong the rail line.

construction right-of-way, except insome areas requiring deep cuts or highfills, which could extend beyond typicalwidths by up to 300 feet. Alternatively,the construction right-of-way would bemore narrow than 300 meters (1,000feet) when passing through certain areassuch as private lands and wetlands. Thetotal construction footprint would beapproximately 164 square kilometers(40,600 acres). Obtaining a right-of-wayfor access to public land forconstruction of the railroad would besubject to approval by the Bureau ofLand Management.

Construction of the rail line wouldrequire DOE to obtain water, ballast,subballast,e steel for bridges, concreteties, and rail. Water would be obtainedby pumping groundwater from water-supply wells along the rail alignment,and under the Caliente ImplementingAlternative, a maximum of 107 wellsites would be required to supply theestimated 6,100 acre-feet of waternecessary for construction.

DOE would obtain ballast byconstructing up to four quarries from sixpotential locations along the Calienterail alignment. Subballast would beobtained from sites along the railalignment, from waste rock generated atballast quarry sites, from materialsexcavated during rail roadbedconstruction, or from the developmentof new subballast borrow sitesestablished inside the constructionright-of-way. The Department wouldobtain steel, concrete ties, and rail fromexisting commercial sources.

Construction of the rail line wouldrequire DOE to establish constructioncamps to provide housing for workersand a logistical base from which toconduct construction activities. TheDepartment would establish up to 12construction camps, with up to sixoperating at one time, along the Calienterail alignment.

DOE would construct the rail line intwo steps: (1) Rail roadbed constructionand (2) track construction. The railroadbed would form the base uponwhich the subballast, ballast, concreteties, and rail would be laid. Trackconstruction would involve theplacement of subballast, ballast,concrete ties, and rail on top of the railroadbed, building a service road, andestablishing power and communicationsystems.

DOE also would construct bridges,culverts, and at-grade and grade-

6 A layer of crushed gravel used to separate theballast and roadbed for the purpose of loaddistribution and drainage.

7 Earthwork foundation upon which the track,ties, ballast, and subballast of a rail line are laid.

separated road crossings." TheDepartment would construct up to 240bridges, 138 large culverts, and fivegrade-separated crossings of highwaysalong the Caliente rail alignment.Crossings at other paved publicroadways would be at-grade where DOEwould install active warning devices,such as flashing lights and gates. Forcrossings at unpaved roads and privatecrossings, DOE would install passivewarning devices, such as stop signs.

After completion of construction, therailroad would operate for up to 50years. During that time, there would beabout 3,000 rail shipments of spentnuclear fuel and high-level radioactivewaste to the repository. There alsowould be shipments of constructionmaterials, diesel fuel, and other suppliesto the repository.

Trains carrying spent nuclear fuel andhigh-level radioactive waste wouldarrive at an Interchange Yard 9 on theUnion Pacific Railroad mainline nearCaliente, Nevada, and proceed to aStaging Yard 10 along either the Calienteor the Eccles alternative segment. DOEevaluated three staging yards in the finalRail Alignment EIS—the Indian Coveand Upland Staging Yards along theCaliente alternative segment, and theEccles-North Staging Yard along theEccles alternative segment. A typicaltrain leaving the Staging Yard andtransporting radioactive materials forthe repository would consist of two orthree 4,000-horsepower diesel-electriclocomotives followed by a buffer car,one to five cask cars followed byanother buffer car, and one escort carcarrying security personnel.

Trains transporting radioactivematerials for the repository woulddepart the Staging Yard and travel to theRail Equipment Maintenance Yard, thetermination point of the railroad and thestaging area for the delivery of loadedcask cars and other materials to therepository receiving and inspectionarea. The Rail Equipment MaintenanceYard would be located less than onemile from the southern boundary of thegeologic repository operations area. Arailroad crew would bring casks fromthe Rail Equipment Maintenance Yardto the boundary of the geologicrepository operations area. At theboundary, control of the casks would be

8 A at-grade crossing occurs when a road and arail line cross paths at the same elevation. A grade-separated crossing occurs when a road and a railline cross paths and one passes over the other.

9 The Interchange Yard is the intersectionbetween the Union Pacific mainline and the DOErail line.

10 The Staging Yard is the rail yard that wouldtemporarily store, service and maintain railcars andlocomotives, and assemble trains for trips to therepository at Yucca Mountain.



transferred to the geologic repositoryoperations area for removal of the spentnuclear fuel and high-level radioactivewaste. Empty casks would betransferred back to railroad control atthe boundary of the geologic repositoryoperations area for transport back to theUnion Pacific Railroad.

A National Transportation OperationsCenter would oversee the shipment ofcasks from sites throughout the UnitedStates. The Nevada Railroad ControlCenter, co-located with the NationalTransportation Operations Center,would coordinate train movements, railoperations, and emergency responseoperations along the proposed railroadin Nevada. In the final Rail AlignmentEIS, DOE evaluated these facilities ateither the Rail Equipment MaintenanceYard or at the Staging Yard (twolocations for the Staging Yard wereanalyzed along the Caliente alternativesegment, and one location for theStaging Yard was analyzed along theEccles alternative segment).

Under the Caliente ImplementingAlternative, rail line maintenance andinspection activities would beconducted out of Maintenance-of-WayFacilities. DOE evaluated Maintenance-of-Way Facilities at different locations.Either a single Maintenance-of-WayFacility would be constructed alongGoldfield alternative segment 4 justnorth of the town of Goldfield, Nevada,or a Maintenance-of-Way HeadquartersFacility would be constructed nearTonopah, Nevada, and a Maintenance-of-Way Trackside Facility would beconstructed along common segment 3.

DOE also analyzed a Shared-UseOption, under which the Departmentwould allow common carriageshipments on the rail line. The Shared-Use Option would require constructionof commercial sidings to provide accessfor potential commercial shippers otherthan the Department, and facilities foroperation of commercial rail service.Funding for construction of thesesidings and facilities for commercial railservice could be provided by either theprivate sector or Government sources.The Department's proposed design forthe rail line (for example, grade andcurvature) would accommodate shareduse.

DOE estimated that approximatelyeight common carriage shipments couldrun per week on the rail line. Trainscarrying spent nuclear fuel and high-level radioactive waste would havepriority.

DOE could decide to abandon theproposed railroad after shipments to therepository were complete.Abandonment could involve theremoval of the rail roadbed, ballast,

track, ties, signaling, and other relatedinfrastructure. DOE would reclaim thelands disturbed by the abandonmentprocess. If DOE were to decide toabandon the railroad, it wouldrelinquish its right-of-way and theBureau of Land Management wouldcontinue to manage the public land.Abandonment of the railroad would beconducted in accordance withapplicable requirements and inconsultation with local governments,the Surface Transportation Board, andthe Bureau of Land Management. It ispremature at this time for DOE to decidethe future disposition of the railroadafter the end of the shipping campaignto the Yucca Mountain repository. Anysuch future decision would be subject tofurther NEPA review, as appropriate.

Mina Implementing AlternativeA rail line in the Mina rail corridor

would extend from near Wabuska,Nevada, in a southeasterly direction toYucca Mountain. The total length of therail line could range from about 452 to502 kilometers (281 to 312 miles),including the existing Department ofDefense rail line (see Figure S-4 of theSummary to the final Rail AlignmentEIS). The portion of the Mina railalignment that would requireconstruction of a new rail line couldrange in length from about 410 to 459kilometers (255 to 285 miles),depending on the combination ofcommon and alternative segments.

There are four common segmentsalong the Mina alignment. Commonsegment 1 starts west of Hawthornecontinuing to Blair Junction, Nevada;common segment 2, which would startsouth of Lida Junction, Nevada; andcommon segment 5 and commonsegment 6, which are the same ascommon segments 5 and 6 along theCaliente rail alignment. DOE evaluatedalternative segments at four locationsalong the Mina alignment starting nearSchurz, Nevada (four alternativesegments referred to as Schurz 1, 4, 5,and 6), and moving southeast towardthe area of Montezuma southeast ofBlair Junction (Montezuma segments 1,2 and 3), north of Scottys Junction(Bonnie Claire segments 2 and 3), andnear Oasis Valley (Oasis Valleysegments 1 and 3). Bonnie Clairesegments 2 and 3, and Oasis Valleysegments 1 and 3 are the same as thosealong the Caliente alignment.

Construction and operation of arailroad along the Mina rail alignmentwould be implemented as describedunder the Galiente ImplementingAlternative. However, the infrastructurenecessary to support construction andoperation of the railroad would differ in

some respects. Under the MinaImplementing Alternative, water wouldbe obtained from a maximum of 74 wellsites to supply the estimated 5,950 acre-feet of water necessary for construction.DOE would obtain ballast byconstructing up to two quarries fromfive potential locations along the railalignment, and there would be up to 10construction camps, with up to sixoperating at one time. The Departmentwould construct up to 69 bridges, 60large culverts, and four grade-separatedcrossings of highways along the Minarail alignment.

Under the Mina implementingAlternative, trains would arrive on theUnion Pacific Railroad mainline nearHazen and proceed to the Staging Yardat Hawthorne via the Union PacificRailroad Hazen Branchline, theDepartment of Defense BranchlineNorth, one of the Schurz alternativesegments, and the Department ofDefense Branchline South. Unlike theCaliente Implementing Alternative,there is sufficient space to locate thefunctions of the Interchange Yard andStaging Yard in a single facility (theStaging Yard) at Hawthorne, Nevada.

The National TransportationOperations Center and the NevadaRailroad Control Center would be co-located and perform the same functionsas described under the CalienteImplementing Alternative. In the finalRail Alignment EIS, DOE evaluated bothof these facilities at two locations—atthe Rail Equipment Maintenance Yardlocated less than one mile from thesouthern boundary of the geologicrepository operations area on the YuccaMountain site, and at the Staging Yardin Hawthorne, Nevada.

Rail line maintenance and inspectionactivities would be conducted out ofMaintenance-of-Way Facilities, whichwould consist of a Maintenance-of-WayFacility and two Satellite Maintenance-of-Way Facilities. DOE evaluated theMaintenance-of-Way facilities atdifferent locations along the Mina railalignment near Silver Peak, Nevada,along Montezuma alternative segment 1,and near Klondike, Nevada, alongMontezuma alternative segments 2 and

Under the Mina ImplementingAlternative, DOE analyzed a Shared-UseOption, under which the Departmentwould allow common carriageshipments on the rail line. Shipmentswould occur as described above underthe Caliente Implementing Alternative,except there would be an average of 18common carriage shipments per week.



Environmentally PreferableImplementing Alternative

Proposed Action and No ActionAlternative

In determining the environmentallypreferable alternative, DOE consideredpotential environmental impacts thatcould occur under the Proposed Actionfrom selecting a rail alignment withineither the Caliente or Mina rail corridorand constructing and operating arailroad within the selected alignment,and the potential environmentalimpacts that would occur under the NoAction Alternative from not selecting arail alignment within either railcorridor. The potential environmentalimpacts of selecting a rail alignmentwithin either the Caliente or Mina railcorridor and constructing and operatinga railroad along such alignment wouldbe greater than the potentialenvironmental impacts of the No ActionAlternative under which no suchselection and therefore no constructionor operation would occur within eitherof these rail corridors. For this reason,at least in the short term, the No ActionAlternative is environmentallypreferable to the Proposed Action.However, given DOE's responsibilitiesunder the NWPA and the YuccaMountain Development Act (Pub. L.107-200), and consistent with DOE'stiered decisionrnaking, it is necessaryfor DOE to proceed with the selection ofan alignment and the construction andoperation of a railroad within thatalignment for shipments of spentnuclear fuel, high-level radioactivewaste, and other materials to the YuccaMountain site.

Caliente and Mina ImplementingAlternatives

DOE considered potentialenvironmental impacts that could occurfrom the construction and operation ofa railroad along the Caliente and Minarail alignments. As a general matter,based on the analyses of the final RailAlignment EIS, DOE concluded thatconstruction and operation of a railroadalong either the Caliente or Mina railalignments would result in broadlysimilar, but generally small, potentialimpacts to natural, human health,social, economic, and culturalresources. More specifically, theanalyses in the final Rail Alignment EISshowed there would be no significantdifferences (between the Caliente andMina alignments) in potential impactsto aesthetic resources, air quality(including potential impacts on globalclimate change), groundwater resources,noise and vibration, socioeconomics,occupational and public health and

safety (including potential risks fromaccidents and acts of sabotage orterrorism), utilities, energy andmaterials use, and the generation ofhazardous materials and waste(additional detail may be found in TableS-8 of the Summary to the final RailAlignment EIS. The followingparagraphs summarize the differencesbetween the Caliente and Minaalignments in potential impacts to landuse, wetlands and other biologicalresources.

Construction of the railroad along theCaliente rail alignment would disturbabout 14,000 to 15,000 acres, and couldresult in a loss of about 300 to 440 acresof prime farmland. In contrast,construction along the Mina railalignment would disturb less land(9,900 to 12,000 acres) and result in lessloss of prime farmland (less than 4acres).

Construction of the railroad along theCaliente rail alignment also would crossmore private land (120 to 310 acres),active grazing allotments (23 to 25), andresult in a loss of more animal unitmonths (999 to 1,034) than would occuralong the Mina rail alignment, whichwould cross 53 to 199 acres of privateland, 6 to 9 active grazing allotments,and a possible loss of 179 to 199 animalunit months. The Caliente railalignment, however, does not cross aNative American tribe's reservation,unlike the Mina rail alignment, whichwould cross the Walker River PaiuteTribe Reservation. As described aboveunder Background, the Tribe hasrenewed a past objection to thetransportation of nuclear waste throughits reservation.

Depending on the segmentconsidered, construction of the railroadalong the Caliente rail alignment alsowould result in more short-term (about3 to 69 acres) and long-term (about 3 to45 acres) loss of wetlands and riparianhabitat than would occur along theMina rail alignment (about 3 to 9 acresin the short-term, and less than 0.4 acresin the long-term). In contrast, a railroadalong the Mina alignment could impactadversely a larger number of sensitiveplant and animal communities thanwould occur along the Calientealignment.

On balance, even though constructionand operation of a railroad along eitherthe Caliente or Mina rail alignmentswould result in broadly similar, andgenerally small, potential impacts, DOEconcludes that the Mina ImplementingAlternative would be environmentallypreferable to the Caliente ImplementingAlternative.

Caliente Rail Alignment AlternativeSegments

In determining which alternativesegments along the Caliente railalignment would be environmentallypreferable, DOE considered potentialimpacts to all resources, but focused onenvironmental impacts to thoseresources that allowed DOE todiscriminate among alternativesegments. Additional detail may befound in Table S-9 of the Summary tothe final Rail Alignment EIS.

DOE evaluated two alternativesegments that would interface with theUnion Pacific Railroad mainline nearCaliente, Nevada—the Caliente andEccles alternative segments. Indetermining which alternative segmentwould be environmentally preferable,DOE considered the potentialenvironmental impacts to the physicalsetting, land use and ownership,aesthetics, surface-water resources,biological resources and noise.Construction of the railroad along theEccles alternative segment would resultin less land disturbance (480 acrescompared to 770 acres) and loss ofprime farmland (about 23 acrescompared to 40 acres), and would crossfewer private land parcels (5 parcelsinvolving about 74 acres compared to atleast 30 parcels involving more than 270acres). In contrast, the Eccles alternativesegment would cross more activegrazing allotments (3 compared to 1)and result in a greater loss of animalunits months (17 compared to 1).Potential impacts to aesthetic resourcesalong the Eccles alternative segmentwould be less, as would impacts fromnoise when compared to the Calientealternative segment. Construction of therail line along the Eccles alternativesegment would require that about 11acres of a nearby creek (Clover Creek) befilled, which would impact downstreamriparian areas and wetlands, includingan area identified by the Bureau of LandManagement as an Area of CriticalEnvironmental Concern for theprotection of threatened and endangeredspecies. In contrast, construction of therail line along the Caliente alternativesegment would result in the loss ofabout nine acres of wetlands, and aboutanother 28 acres of riparian area; Onbalance, since the Caliente alternativesegment would result in less impact toaquatic resources and avoid an Area ofCritical Environmental Concern, DOEconsiders it to be environmentallypreferable to the Eccles alternativesegment.

DOE evaluated four alternativesegments in Garden Valley (1, 2, 3, and8). In determining whether a segment



would be environmentally preferable,DOE focused on the physical setting,land use and ownership, and culturalresources. Garden Valley alternativesegment 1 would result in the smallestamount of surface disturbance (about830 acres) followed by segment 2 (880acres), segment 3 (890 acres) andsegment 8 (910 acres). Garden Valleysegment 3 would not impact any primefarmlands, whereas segment 1 wouldresult in the loss of about 70 acres ofprime farmland, followed by segment 8(89 acres) and segment 2 (97 acres).Each alternative segment would crossfive active grazing allotments, whichwould result in an estimated loss ofanimal unit months of 121 (segment 1),125 (segment 3), 126 (segment 8) and132 (segment 2). Only Garden Valleysegment 2 could result in direct orindirect impacts to knownarchaeological sites that are eligible forlisting on the National Register ofHistoric Places. DOE considers GardenValley alternative segments 1 and 3 tobe preferable to segments 2 and 8,primarily because these segments wouldresult in the lowest amount of disturbedland and loss of prime farmland.However, as between Garden Valleyalternative segments 1 and 3, neither isclearly environmentally preferable.

The Department considered potentialimpacts to all resources whendetermining whether South Reveillealternative segment 2 or 3 would beenvironmentally preferable. Based onthe analyses of the final Rail AlignmentEIS, however, there are no significantdifferences in potential environmentalimpacts between South Reveillealternative segments 2 and 3, and thusDOE concludes that neither segment isenvironmentally preferable.

In evaluating whether an alternativesegment near Goldfield, Nevada(alternative segments 1, 3, and 4) wouldbe environmentally preferable, DOEfocused on the physical setting, land useand ownership, cultural resources,surface-water resources, and aestheticresources. Construction of the railroadalong Goldfield alternative segment 4would result in the disturbance of about1,600 acres of land, followed by segment1 (2,400 acres), and segment 3 (2,500acres). All three segments would crossprivate lands; segment 3 would affectabout 46 acres, followed by segment 4(120 acres) and segment 1 (150 acres).Goldfield alternative segment 3 wouldcross 205 unpatented mining claims,followed by segment 4 (374 claims) andsegment 1 (375 claims). The threealternative segments also would impact,directly and indirectly, culturalresources. Goldfield alternative segment3 could impact one possible Western

Shoshone camp and segment I couldimpact more than one such camp,whereas segment 4 could impact severalarchaeological sites that are eligible forlisting on the National Register ofHistoric Places. Lastly, Goldfieldalternative segment 3 would have short-term (during construction) impacts towater quality at Willow Springs, and theproposed quarry near segment 4 wouldhave short-term, moderate to strongvisual contrast to nearby viewers. Onbalance, the Department considersGoldfield alternative segment 3 to beenvironmentally preferable, because ittends to impact (relative to segments 1and 4) the smallest amount of privateland, cross the fewest unpatentedmining claims, and impact the fewestknown significant cultural resources.

The Department considered potentialimpacts to all resources whendetermining whether Bonnie Clairealternative segments 2 or 3 would beenvironmentally preferable. Based onthe analyses of the final Rail AlignmentEIS, however, there are no significantdifferences in potential environmentalimpacts between Bonnie Clairealternative segments 2 and 3, and thusDOE concludes that neither segment isenvironmentally preferable.

DOE evaluated two alternativesegments in Oasis Valley (1 and 3). Indetermining whether a segment wouldbe environmentally preferable, DOEfocused on the physical setting, land useand ownership and biological resources.Oasis Valley alternative segment 1would disturb less land relative tosegment 3 (250 acres compared to 330acres), but would cross one private landparcel affecting less than one acre of thisparcel (segment 3 does not cross privateland). Both segments would cross anactive grazing allotment, but segment 1would result in a lower loss of animalunit months than would segment 3 (8compared to 12). Oasis Valleyalternative segment 3 would disturb lessthan five acres of wetland/riparianhabitat, but this would be a short-termimpact. On balance, DOE considersneither alternative segment to be clearlypreferable because the potential impactsare small in general, limited to a fewresources, and the differences betweenimpacts to those resources are small.

Facilities Associated With the CalienteRail Alignment

DOE evaluated two staging yardsalong the Caliente alternative segment—the Upland Staging Yard and the IndianCove Staging Yard. In determiningwhich staging yard was environmentallypreferable, DOE considered potentialimpacts to all resources, but focused onland use and ownership and wetlands

as they offer a means to discriminatebetween the yards. Construction of theUpland Staging Yard would cross about110 acres of private land and would notrequire wetlands to be filled. In contrast,construction of the Indian Cove StagingYard would cross about 180 acres ofprivate land and would require about 47acres of wetlands to be filled. DOEconsiders the Upland Staging Yard to beenvironmentally preferable.

DOE evaluated three locations alongthe Caliente rail alignment for theNational Transportation OperationsCenter and Nevada Railroad ControlCenter: (1) At the Rail EquipmentMaintenance Yard, which is located lessthan one mile from the southernboundary of the geologic repositoryoperations area; and (2) at two locationsalong the Caliente alternative segment-co-located with the Upland StagingYard or with the Indian Cove StagingYard. In determining which location forthese facilities was environmentallypreferable, DOE considered potentialimpacts to all resources, but focused onland use and ownership and wetlandsas they offer a means to discriminatebetween the locations. Locating theNational Transportation OperationsCenter and Nevada Railroad ControlCenter at the Rail EquipmentMaintenance Yard would not affectprivate land or wetlands. In contrast,locating these facilities at the UplandStaging Yard would require the use ofprivate land, and locating these facilitiesat the Indian Cove Staging Yard wouldrequire private land and wetlands to befilled. For these reasons, DOE considerslocating the National TransportationOperations Center and Nevada RailroadControl Center at the Rail EquipmentMaintenance Yard to beenvironmentally preferable to locatingthese facilities at the Upland or IndianCove Staging Yards.

Shared UseIn determining whether the Proposed

Action with the Shared-Use Option orwithout the Shared-Use Option wasenvironmentally preferable, theDepartment considered potentialimpacts to all resources. As DOEconcluded in the final Rail AlignmentEIS, potential impacts under the Shared-Use Option would be, in general,slightly greater than impacts under theProposed Action without shared use.For example, under the Shared-UseOption, the construction of additionalsidings would increase (relative to theProposed Action without shared use)surface disturbance by about 0.1percent, and during railroad operationsthere would be increases in airemissions from locomotives,



interactions with wildlife (such ascollisions and nest abandonment),traffic delays at highway-rail gradecrossings, and rail-related accidents.Therefore, DOE considers the ProposedAction without the Shared-Use Optionto be environmentally preferable to theProposed Action with the Shared-UseOption.

Comments on the Final Nevada RailCorridor SEIS and the Final RailAlignment EIS

DOE distributed more than 4,400copies of the final Nevada Rail CorridorSETS, final Rail Alignment EIS, and thefinal Repository SETS; the documentsalso were posted on DOE's Web site(http://www.ocrwm.doe.gov). On July11, 2008, the Environmental ProtectionAgency announced in the FederalRegister the availability of thedocuments. DOE has received writtencomments on these documents from theEnvironmental Protection Agency, N-4State Grazing Board, N—B State GrazingBoard, White Pine County NuclearWaste Project Office, and the Board ofCounty Commissioners of LincolnCounty. The Department has reviewedthese comments and concluded thatnone of the comments presentsignificant new circumstances orinformation relevant to environmentalconcerns bearing on the ProposedAction or its impacts. The followingsummarizes and addresses thosecomments received on the final NevadaRail Corridor SETS and the final RailAlignment EIS.

Some commenters stated they wereunable to identify responses, in the finalNevada Rail Corridor SETS and final RailAlignment EIS, to some of theircomments. For those comments forwhich commenters stated that responseswere missing, the Department reviewedthe comments and associatedindex(ices) to determine whetherresponses had been included in the finalNevada Rail Corridor SETS and/or thefinal Rail Alignment EIS. Based on thisreview, DOE concluded that appropriateresponses had been prepared for allthese comments and that theseresponses were included in these finalNEPA documents.

Commenters also asserted that someDOE responses to comments wereinadequate and demonstrated a lack ofunderstanding of aspects of the affectedenvironment, or that the analyses andmethods used to estimate potentialenvironmental impacts wereinadequate. As examples, commentersindicated that there is ample literatureand accepted methods to address theimpacts of stigma and risk perception,that DOE's groundwater use rates were

understated and should have beendefined more accurately to estimateimpacts, that remote sensing techniquesand/or field surveys should have beenused to map locally importantvegetation and soil types and rangeimprovements, and that the regions ofinfluence used to estimate potentialimpacts to certain resources were toolimited in geographic extent.

DOE has reviewed these commentsand determined that the environmentalanalyses in these NEPA documents areadequate. In preparing the final NevadaRail Corridor SETS and the final RailAlignment EIS, DOE first determinedthe scope of the analyses to beconsidered (range of actions,alternatives, impacts). In doing so, DOEevaluated comments received throughthe public scoping process, identifiedthe range of reasonable alternatives thatwould meet the purpose and need forDOE's underlying action, and identifiedthe analytical approaches and methodsneeded to determine potentialenvironmental impacts for eachresource area and issue. For someissues, such as stigma and riskperception, DOE considered variousanalytical approaches and methods fordetermining potential impacts, butconcluded there were no reliablemethods for quantifying such impactswith any degree of certainty. For thoseresource areas and issues for whichthere were reliable methods, DOEfocused its analyses on significantenvironmental issues and evaluatedimpacts in proportion to their potentialsignificance, in accordance with theCouncil on Environmental Qualityregulations (40 CFR 1502.1 and1502.2(b)). DOE used the best availableinformation, including informationdeveloped from field surveys and aerialmapping, and commonly-usedanalytical approaches to estimatereasonably foreseeable environmentalimpacts. As appropriate, DOE also usedconservative but reasonableassumptions to address incomplete orunavailable information or uncertaintiesin these analyses. The information,analytical approaches and assumptionsused in the analysis were developed inconsultation with DOE's cooperatingagencies.

The Department received commentsstating that DOE did not include theappropriate level of detail regarding thedesign, construction and operation ofthe railroad, and consequently theimpacts analyses were inadequate. Asexamples, commenters suggested thatDOE determine the specific locations ofsubballast quarries and communicationtowers along the rail alignments,redesign the rail line so that the service

road and rail roadbed were at the sameelevation (a single, wider raisedplatform for the track and road), spacethe concrete ties at more narrowintervals, and construct sidings every 10miles to decrease train delays under theShared-Use Option. DOE based theanalyses on a conceptual design of therailroad, consistent with the Council onEnvironmental Quality regulations (40CFR 1500.5, 1501.2, 1502.5, and1508.23) that call for environmentalimpact analyses to be undertaken earlyin the process of developing a proposedFederal project. As DOE acknowledgedin the final Rail Alignment EIS, theconceptual design will advance throughpreliminary to final design, duringwhich time many of the detailsrequested by the commenters willbecome available. Further, DOE willmake additional refinements beforeconstruction. As these details becomeavailable, the Department, consistentwith its regulations, will determine ifthere is a need for additional NEPAreview.

Commenters, in general, favoredDOE's proposed process for thedevelopment, implementation andmonitoring of best managementpractices and mitigation measures asdiscussed in the final Rail AlignmentEIS. Commenters, however, also statedthat this proposed process and theassociated practices and measures arepreliminary, but should be committed toin DOE's Record of Decision; somecommenters requested to participate inthe process. Further, commenters tookexception to some practices andmeasures presented in the final RailAlignment EIS, suggested modificationsto others (such as the use of adaptedplant species in reclaiming disturbedlands), and offered additional practicesand measures for consideration (such asthe use of temporary irrigation topromote plant growth).

The Environmental Protection Agencyfocused on wetlands issues andconcluded that the Caliente alternativesegment (relative to the Eccles segment)represented the least environmentallydamaging practicable alternative. TheAgency supported the conclusionsregarding the floodplain and wetlandsassessment contained in the final RailAlignment EIS, with the understandingthat DOE will implement one of threecompensatory mitigation measuresspecific to the loss of wetlands that willbe impacted by the Caliente railalignment.

In response to comments regardingmitigation, the Department recognizesthat the best management practices andmitigation measures described in thefinal Rail Alignment EIS are preliminary



and, as such, will be further developedand detailed through the regulatorycompliance process, development of thefinal design and associatedspecifications, and throughconsultations with directly affectedparties. As stated below (see Use of AllPracticable Means to Avoid or MinimizeHarm), DOE is committing to amitigation process, proposing toconstitute one or more MitigationAdvisory Boards and consult withdirectly affected parties. DOE willprepare a Mitigation Action Plan inaccordance with its NEPA regulations(10 CFR 1021.331). Further, DOE iscommitting to a wetlands compensatorymitigation plan, includingimplementing the recommendations ofthe Environmental Protection Agency,the details of which will be described inthe Mitigation Action Plan. Lastly, theDepartment will reconsider thesuggested modifications to the bestmanagement practices and mitigationmeasures, as well as other relatedrecommendations of the commenters, inpreparing the Mitigation Action Plan.

DecisionUnder the NWPA and the Yucca

Mountain Development Act, theDepartment is responsible for thetransportation of spent nuclear fuel andhigh-level radioactive waste to theYucca Mountain site. In April 2004, theDepartment selected the mostly railscenario analyzed in the YuccaMountain Final EIS for transportingspent nuclear fuel and high-levelradioactive waste nationally and withinNevada. DOE also selected the Calienterail corridor in which to examinepossible alignments for construction ofa rail line in Nevada.

As the next step in fulfilling itsresponsibilities and consistent with itstiered decisiorimaking, the Departmentis issuing this Record of Decision toconstruct and operate a railroad along arail alignment within the Calientecorridor. The Department has selectedthe following common and alternativesegments as the rail alignment—Calientealternative segment, common segment 1,Garden Valley alternative segment 3,common segment 2, South Reveillealternative segment 3, common segment3, Goldfield alternative segment 4,common segment 4, Bonnie Clairealternative segment 3, common segment5, Oasis Valley alternative segment 1,and common segment 6, which are thepreferred segments identified in thefinal Rail Alignment US.

In addition, the Department hasdecided to construct the InterchangeYard at the location where the Calientealternative segment connects with the

Union Pacific Railroad mainline, theUpland Staging Yard along the Calientealternative segment, and theMaintenance-of-Way Facility alongGoldfield alternative segment 4. TheDepartment also has decided toconstruct and operate the NevadaRailroad Control Center and NationalTransportation Operations Center, co-located with the Upland Staging Yard,along the Caliente alternative segment.

In proceeding with construction of therailroad, the Department will developup to four quarries from six potentiallocations, and up to 12 constructioncamps at the locations analyzed in thefinal Rail Alignment EIS. The initiationof construction of the railroad on publicland, including the quarries andconstruction camps, is dependent uponreceipt of a right-of-way grant, free usepermits, and possibly temporary usepermits, from the Bureau of LandManagement. Construction andoperation of the railroad will be subjectto the availability of appropriated funds.

Finally, DOE has decided to select theShared-Use Option, and allow commoncarriage shipments on the rail line. Priorto constructing and operating a commoncarriage railroad, the SurfaceTransportation Board must grant aCertificate of Public Convenience andNecessity to DOE. The Departmentapplied to the Board for a Certificate ofPublic Convenience and Necessity onMarch 17, 2008.

As necessary, DOE will apply for anyadditional regulatory approvals toconstruct the railroad, ship radioactivematerials and other materials to therepository, and allow common carriageshipments (general freight).

Basis for Decision

Alignment Within Roil Corridor

Based on a consideration of theenvironmental analyses included in thefinal Rail Alignment EIS, the objectionof the Walker River Paiute Tribe to thetransportation of nuclear waste acrossits reservation, and preferencesexpressed in public comments, theDepartment has decided that it willconstruct and operate a railroad alongthe rail alignment described abovewithin the Caliente rail corridor. Inreaching its decision to construct andoperate a railroad along a rail alignmentwithin the Caliente corridor, DOEconsidered potential environmentalimpacts to all resources, including theimpacts from land disturbance duringconstruction, land use changes andconflicts from operation of the railroad,and impacts to wetlands. As a generalmatter, DOE concluded in the final RailAlignment EIS that construction and

operation of a railroad along either theCaliente or Mina rail alignments wouldresult in broadly similar, but generallysmall, potential impacts to natural,human health, social, economic, andcultural resources. More specifically,DOE found there would be nosignificant differences between theCaliente and Mina alignments inpotential impacts to aesthetic resources,air quality (including potential impactson global climate change), groundwaterresources, noise and vibration,socioeconomics, occupational andpublic health and safety (includingpotential risks from accidents and actsof sabotage or terrorism), utilities,energy and materials use, and thegeneration of hazardous materials andwaste.

DOE recognized that constructing andoperating a railroad along an alignmentwithin the Mina corridor would tend toresult in less land disturbance, andcross fewer private land parcels andgrazing allotments than within theCaliente corridor. The Department,however, also recognized that analignment within the Mina corridorwould need to cross the Walker RiverPaiute Tribe Reservation. If DOE were toselect such an alignment, DOE wouldneed to obtain a right-of-way from theBureau of Indian Affairs. The Bureau'sregulations (25 CFR 169.3(a)) 11 requirewritten consent of the Tribe beforegranting the right-of-way. Because theTribe has renewed its past objection tothe transportation of nuclear wastethrough its reservation (as describedabove under Background), obtaining aright-of-way is not possible at this time.DOE's inability to obtain a right-of-waythrough the reservation in the absenceof the Tribe's consent would necessarilyimpact the Department's ability toconstruct and operate the railroad in theMina corridor.

DOE also considered potentialunavoidable adverse impacts inreaching its decision. Construction of arailroad in either corridor would resultin the permanent loss of wetlands.Within the Caliente corridor, about 8.7acres of wetlands would be lost,whereas the corresponding loss withinthe Mina corridor would be about 0.01acres. As described below under Use ofAll Practicable Means to Avoid orMinimize Harm, DOE will developmeasures to compensate for the loss ofwetlands as part of its compliance withsection 404 of the Clean Water Act incoordination with the Army Corps of

11 The regulation states, "No right-of-way shall begranted over and across any tribal land, nor shallany permission to survey be issued with respect toany such lands, without the prior written consentof the tribe.



Engineers, Environmental ProtectionAgency, and applicable land-management agencies such as theBureau of Land Management.

In making its decision to constructand operate a railroad along a railalignment within the Caliente corridor,DOE considered irreversible andirretrievable commitments of resourcesand potential cumulative impacts. Therewould be an irreversible andirretrievable commitment of resources,such as electric power, fossil fuels andconstruction materials, associated withthe construction of a railroad in eitherthe Caliente or Mina corridors, althoughthis commitment of resources would notsignificantly diminish these resources,either nationwide or in Nevada.

DOE also recognized there could besome moderate to large impacts from theconstruction and operation of a railroadalong a rail alignment in either corridorwhen considered in tandem with otherpast, present and reasonably foreseeablefuture activities (cumulative impacts).In general, the potential for moderate tolarge cumulative impacts would belimited to certain resources, such asgroundwater use and air quality; furtherlimited in geographic extent to certainareas within segments, such as airquality impacts from a particular quarry;and would be short-term, i.e., limited tothe construction period. There alsocould be longer term, moderate to largecumulative impacts, such as a loss ofspecific types of habitat, although DOEwill develop mitigation measures tominimize its contribution to thesepotential cumulative impacts, asdiscussed below under Use of AllPracticable Means to Avoid or MinimizeHarm.

In making its decision, theDepartment also considered the directcosts of constructing and operating arailroad, and the consequences frompotential delays in the availability of therailroad. DOE has estimated that thetotal cost to construct the railroad alongthe Mina rail alignment would beapproximately 20 percent less than toconstruct the railroad along the Calienterail alignment ($2.03 billion comparedto $2.57 billion in 2008 dollars).However, objections by the WalkerRiver Paiute Tribe will prevent DOEfrom constructing the railroad in theMina corridor, which in turn willpreclude DOE from disposing of largeamounts of spent nuclear fuel and high-level radioactive waste in a timelymanner.

The Department has concluded thatconstruction and operation of a railroadalong the Caliente rail alignment wouldresult in generally small potentialimpacts to natural, human health,

social, economic, and culturalresources. Moreover, as described belowunder Use of All Practicable Means toAvoid or Minimize Harm, the use ofbest management practices andmitigation measures will reduce andminimize those potential impacts orcompensate for those impacts. Lastly,when considering other relevantaspects, there are no land use conflictsalong the rail alignment within theCaliente corridor that should preventDOE from acquiring the necessary landand rights-of-way to construct therailroad.

Caliente Rail Alignment

The Department's decision to selectcertain alternative segments comprisingthe Caliente rail alignment was based onthe analyses of the final Rail AlignmentEIS and consideration of commentsreceived. In selecting the Calientealternative segment and its associatedInterchange and Staging Yard, DOEconsidered that constructing a railroadon the Eccles alternative segment wouldbe more complex due to its largerdrainages and steeper terrain, andwould present greater challenges tooperating the railroad due to the steeperslope of its Interchange Yard tracks andmain track leaving the interchange. Inaddition, constructing the Calientealternative segment would avoid theneed to realign parts of Clover Creek,which would be required to constructthe Eccles-North Interchange Yard, andwould avoid indirect impacts to riparianareas along Clover Creek downstream ofthat Interchange Yard (the riparian areashave been proposed by the Bureau ofLand Management as an Area of CriticalEnvironmental Concern)

The selection of the Upland StagingYard (along the Caliente alternativesegment) is preferable to the IndianCove Staging Yard because the UplandStaging Yard would not impactwetlands. In contrast, construction ofthe Indian Cove Staging Yard wouldrequire filling up to 47 acres ofwetlands.

In selecting Garden Valley alternativesegment 3, DOE considered potentialimpacts to all resources and engineeringfactors, but engineering factors did notoffer a means to discriminate clearlyamong Garden Valley segments 1, 2, 3,and 8. As described above underEnvironmentally PreferableImplementing Alternative, DOEdetermined segments 1 and 3 to beenvironmentally preferable to segments2 and 8, but as between segment I and3, neither was clearly preferable.Nevertheless, DOE has decided toconstruct the railroad along GardenValley 3 because it is farthest from City,

an earthworks sculpture located onprivate land, and this would reduce(relative to other segments) anypotential noise or aesthetic impacts tothose visiting the sculpture.

DOE selected South Reveillealternative segment 3, rather thansegment 2, along which to construct therailroad. Construction of the railroadalong South Reveille alternativesegment 3 would be preferable toconstruction along South Reveillesegment 2, because it would avoid acomplex road and wash crossing. Also,a railroad along South Reveillealternative segment 3 would minimizepotential impacts to noise, air qualityand aesthetic resources because it islocated farther from the boundary of theSouth Reveille Wilderness Study Areathan is South Reveille segment 2.

In selecting Goldfield alternativesegment 4 (and its associatedMaintenance-of-Way Facility), DOEconsidered potential impacts to allresources and engineering factors anddetermined that it would be preferableto construct and operate the railroadalong this segment rather than alongGoldfield alternative segments 1 or 3. Asdescribed above under EnvironmentallyPreferable Implementing Alternative,DOE determined that Goldfieldalternative segment 3 wasenvironmentally preferable. However,Goldfield alternative segment 3 alsopresents more complex engineering andrailroad operation challenges than theselected segment (Goldfield 4) becauseof its topography (many more curvesand grades to negotiate). In addition, thedesign and construction of Goldfieldalternative segment 1 is more uncertainthan that of Goldfield segment 4,because it would cross a mining districtlikely to tontain as-yet-unidentifiedabandoned mine drifts and shafts. DOEalso considered that Goldfieldalternative segment 4 is preferred by theEsmeralda County government. Forthese reasons, DOE selected Goldfieldalternative segment 4 along which toconstruct the railroad.

DOE selected Bonnie Clairealternative segment 3, rather thansegment 2, because it would be farthestfrom the boundary of the Nevada Testand Training Range, and would be lessdifficult to construct as it requires fewerdrainage structures in less complexterrain. DOE also selected Oasis Valleyalternative segment 1, rather thansegment 3, because it too would be lessdifficult to construct. The potentialenvironmental impacts to the BonnieClaire and Oasis Valley alternativesegments did not offer a means todiscriminate clearly between thesegments.



Facilities Associated With the CalienteRail Alignment

DOE also has decided to constructand operate the Nevada RailroadControl Center and the NationalTransportation Operations Center, co-located with the Upland Staging Yard,along the Caliente alternative segment,rather than one mile from the southernboundary of the geologic repositoryoperations area at the Rail EquipmentMaintenance Yard. In making thisselection, DOE recognizes that locatingthese facilities at the Upland StagingYard would require the use of privateland, but believes that locating thesefacilities nearer Caliente, Nevada, isresponsive to public comments receivedon the draft Rail Alignment EIS.

Shared Use

Lastly, the Department has decided toselect the Shared-Use Option for therailroad. DOE finds that the potentialimpacts from the Shared-Use Optiongenerally would result in a smallincremental increase relative to those ofthe Proposed Action without theShared-Use Option. Further, DOEbelieves that this decision is responsiveto public comments received on thedraft Rail Alignment EIS, whichgenerally supported the Shared-UseOption and identified economic benefitsthat could accrue to those communitiesthrough which the railroad would pass.

Floodplain Statement of FindingsIn accordance with 10 CFR Part 1022,

"Compliance with Floodplain andWetland Environmental ReviewRequirements," DOE prepared afloodplain and wetland assessment forthe Caliente rail alignment (seeAppendix F of the final Rail AlignmentEIS). Many of the floodplains thatwould be encountered unavoidably bythe railroad are associated withinternally draining basins with few, ifany, inhabitants or facilities, and wherethe floodwaters end in playa areas. Thefloodplains are primarily those areas ofnormally dry washes that aretemporarily and infrequently inundatedfrom runoff during 100-year or 500-yearfloods.

Construction of the Caliente railalignment will affect floodplains, eitherthrough direct alteration of the streamchannel cross section that will affect theflow pattern of the stream, or throughindirect changes in the amount ofimpervious surfaces and additionalwater volume added to the floodplain.In most areas, construction in afloodplain will not increase the risk offuture flood damage or increase theimpact of floods on human health and

safety, because there are very fewhuman activities or facilities in the areasadjacent to the rail alignment, except forexample, in the City of Caliente.Potential impacts from construction willbe minimized because DOE will reducethe area of disturbance where the railalignment will cross floodplains, andbecause construction activities will bebased on design standards that limit thedegree to which floodwaters will beallowed to rise. DOE will incorporatehydraulic modeling into the engineeringdesign process to ensure that crossingsare designed to limit adverse impacts tonearby populations and resources.

In areas where drainage structurescross a 100-year floodplain designatedby the Federal Emergency ManagementAgency, the railroad will be designed incompliance with the Agency'sfloodplain protection standards andapplicable county regulations. In otherareas, hydraulic design will be basedupon Class 1 freight railroad standarddesign criteria, which require that the50-year flood not come into contact withthe top of a culvert or the lowest pointof a bridge. For the 100-year flood, thesecriteria require that the floodwaters notrise above the subgrade elevation of astructure. The Department willconstruct bridges where flows will belarger and where the rail surfaceelevation would not be high enough toaccommodate a sufficiently sizedculvert. Culverts, bridge abutments, andpiers will be constructed to includeriprap around the exposed ends toprotect the fill material. In places,channel improvements might benecessary for a short distance upstreamand downstream of the rail line tointercept and redirect flows throughdrainage structures. DOE also willdesign the rail line to accommodate 100-year floods, based on Class 1 freightrailroad standard design criteria, asdescribed above.

Constructing structures to crosswashes or other flood-prone areas mayreduce the area through whichfloodwaters naturally flow, which couldcause water levels to rise at theupstream side of crossings.Sedimentation would be likely to occuron the upstream side of crossings inthose areas where the flow of water isrestricted to the point where pondingoccurs. DOE will manage sedimentationof this type under a regular maintenanceprogram.

While some changes will beunavoidable, DOE will take steps toensure that the alterations to naturaldrainage, sedimentation, and erosionprocesses will not increase futureflooding potential, increase the impactof floods on human health and safety, or

cause identifiable harm to the functionand values of floodplains. TheDepartment will implement bestmanagement practices, includingerosion control measures such as theuse of silt fences and flow-controldevices, to reduce flow velocities andminimize erosion, and other mitigationmeasures, as needed (see Use of AllPracticable Means to Avoid or MinimizeHarm below).

Section 404(r) of the Clean Water ActDOE has complied with section 404(r)

of the Clean Water Act. Pursuant to therequirements of that section, DOEincluded in Appendix F of the final RailAlignment EIS an analysis of wetlandsimpacts under the guidance of section404(b)(1) of the Act and has submittedthe final Rail Alignment EIS, includingthe requisite analysis under theguidelines, to members of Congress. Asrequired by the guidelines, which aredescribed in 40 CFR Part 230, AppendixF included a demonstration of the needto fill wetlands, an analysis andcomparison among alternatives of thepotential impacts to aquatic resourcesdemonstrating that the practicablealternative with the least impact toaquatic resources has been selected, anda description of methods for mitigatingunavoidable impacts (see Use of AllPracticable Means to Avoid or MinimizeHarm below). On the basis of theconclusions in Appendix F, theproposed discharge of fill materials intowetlands and other waters of the UnitedStates complies with the guidelines of40 CFR Part 230, and DOE has met theassociated requirements of section404(r) by including in the final RailAlignment EIS an analysis of wetlandsimpacts in accordance with theguidelines developed under section404(b)(1).

Section 7 of the Endangered Species ActDOE has complied with section 7 of

the Endangered Species Act. Pursuant tothe regulations that implement the Act(50 CFR Part 402), in March 2008, DOEsubmitted a biological assessmentregarding the potential impacts to thethreatened Mojave desert tortoise, theendangered southwestern willowflycatcher, and the threatened Uteladies'-tresses from the construction andoperation of a railroad in the Calientecorridor, and initiated consultation withthe Fish and Wildlife Service. TheBureau of Land Management and theSurface Transportation Board weresupporting agencies on thisconsultation.

On September 19, 2008, the Fish andWildlife Service issued its biologicalopinion and found that construction



and operation of the railroad is notlikely to jeopardize the continuedexistence of the threatened Mojavepopulation of the desert tortoise or theUte ladies'-tresses. In addition, the Fishand Wildlife Service concluded that therailroad will not result in adverse effectsto the critical habitat designated for theMojave desert tortoise, and furtheranalysis of potential critical habitatimpacts is not necessary (critical habitatfor the Ute ladies'-tresses in Nevada hasnot been designated). The Fish andWildlife Service also included anincidental take 12 statement andidentified reasonable and prudentmeasures (mitigation measures) thatmust be implemented by DOE tominimize take of Mojave desert tortoise,and conservation and minimizationmeasures that must be implemented ifthe Fish and Wildlife Servicedetermines that the loss of Ute ladies'-tresses by construction activities wouldbe significant. The Department iscommitting to these measures, thedetails of which will be included in theMitigation Action Plan (see below underUse of All Practicable Means to Avoidor Minimize Harm).

The Fish and Wildlife Serviceconcurred with DOE's determinationthat construction and operation of arailroad in the Caliente corridor mayaffect, but is not likely to adverselyaffect, the southwestern willowflycatcher. The Service's concurrenceconcluded the informal consultation forthat species pursuant to regulationsimplementing the Endangered SpeciesAct.

Use of All Practicable Means To Avoidor Minimize Harm

Pursuant to the NWPA, spent nuclearfuel and high-level radioactive wastewill be transported in casks certified by.the Nuclear Regulatory Commission(NRC). The NRC regulates and certifiesthe design, manufacture, testing and useof these casks. Additionally, the NWPArequires that DOE comply with NRCregulations regarding advancenotification of State and localgovernments prior to transportation ofspent nuclear fuel or high-levelradioactive waste.

In its Record of Decision of April 8 1

2004 (69 FR 18557), DOE committed toimplementing measures to avoid orminimize harm related to the shipmentof spent nuclear fuel and high-levelradioactive waste, identified specificmeasures, and committed to following

12 Take means to harass, harm, pursue, hunt,shoot, wound, kill, trap, capture or collect, orattempt to engage in such conduct without a specialexemption.

current and future Department ofTransportation and NRC transportationrules. DOE also committed to consultwith states, Native American tribes,local governments, utilities, thetransportation industry, and otherinterested parties in a cooperativemanner to refine the transportationsystem as it is developed. DOE, in thisRecord of Decision, is reaffirming itscommitment to those implementingmeasures, which are incorporated byreference herein.

In the final Rail Alignment EIS(Chapter 7), DOE identifies preliminarybest management practices andmitigation measures that represent theinitial step in an iterative process todevelop and eventually implementthese practices and measures. Thepreliminary best management practicesand mitigation measures will be furtherdeveloped and detailed through (1) theregulatory compliance process, such asthat associated with DOE's right-of-wayapplication to the Bureau of LandManagement and DOE's application fora Certificate of Public Convenience andNecessity to the Surface TransportationBoard; (2) development of the finaldesign and associated specifications,such as the selection of specific seedmixes and application techniques forreclaiming disturbed land; and (3)consultation with directly affectedparties, such as grazing permittees andlocal communities through which theCaliente rail alignment will pass.

The Department will undertake thismitigation process in consultation withfederal, state, and local regulatoryauthorities having jurisdiction over theconstruction and operation of therailroad, and in consultation withdirectly affected parties. To that end,DOE proposes to constitute one or moreMitigation Advisory Boards to assistDOE, the Bureau of Land Management,and the Surface Transportation Board indeveloping, implementing, andmonitoring best management practicesand mitigation measures during theconstruction and operation of therailroad.

Further, DOE will conduct anethnographic evaluation of the railalignment area to develop a culturalresources management program. DOEproposes that the Consolidated Group ofTribes and Organizations 13 assist in theethnographic evaluation, and in thedevelopment and implementation of

11 DOE maintains a Native American InteractionProgram. As part of this Program, 17 tribes andorganizations have formed the consolidated Groupof Tribes and Organizations, which consists ofappointed tribal representatives responsible forpresentation of their respective tribal concerns andperspectives to DOE.

best management practices andmitigation measures.

In Appendix F of the final RailAlignment EIS, DOE identifiespreliminary measures to mitigate thepotential adverse impacts of actions ina floodplain or wetlands, including butnot limited to, minimum gradingrequirements, runoff controls, designand construction constraints, andprotection of ecologically sensitiveareas. To the extent practicable, DOEwill avoid disturbing floodplains andwetlands, and, if avoidance is notpossible, will minimize impacts to theextent practicable. In general, DOE willminimize impacts to floodplains andwetlands through the implementation ofengineering design standards and bestmanagement practices. DOE hasdesigned the rail alignment to avoidpotential direct and indirect impacts towater resources wherever practicable.Due to the nature of rail line design andthe construction activities that would berequired to implement the design, therail line cannot avoid crossingfloodplains or wetlands. Theengineering design process will ensure,however, that the engineered structuresused to pass water runoff from one sideof the rail line to the other will do soin a way that will minimize impacts tofloodplains and wetlands. Such impactswill be limited mostly to theconstruction phase, which will besubject to Clean Water Act regulations.In most cases, DOE will minimizepotential adverse impacts through theimplementation of best managementpractices in concert with the permitsand plans regulatory agencies willrequire.

DOE will implement a wetlandscompensatory mitigation plan that willmeet the requirements of theEnvironmental Protection Agency formitigating losses of aquatic resources(Subpart J, 40 CFR Part 230). Asspecified in the Agency's commentletter of August 11, 2008, this plan willinclude one of the following options tocompensate for the loss of wetlands: (1)Restore or create three acres of wetlandsof equivalent function within thewatershed for every acre of wetlandsfilled to construct the railroad; (2)restore or create one acre of wetlands ofequivalent function within thewatershed, and remove non-nativeplants in five acres within thewatershed for every acre of wetlandsfilled; or (3) restore or create one acreof wetlands of equivalent function inthe watershed, and enhance five acres ofriparian wetland habitat in upperMeadow Valley, including RainbowCanyon, for every acre of wetlandsfilled. The compensatory mitigation



plan will be developed andimplemented in accordance withrequirements of the EnvironmentalProtection Agency (40 CFR 230.91through 230.97), and in coordinationwith the Army Corps of Engineers andthe Bureau of Land Management.

The Department will implement theconservation and minimizationmeasures listed in the biologicalopinion to protect Ute ladies'-tresses,and the reasonable and prudentmeasures identified by the Fish andWildlife Service to protect the Mojavepopulation of the desert tortoise.Implementation of these measures willbe coordinated with the Bureau of LandManagement and SurfaceTransportation Board, as appropriate.

Based on all of the above, DOE willprepare a Mitigation Action Plan inaccordance with its NEPA regulations(10 CFR 1021.331). The MitigationAction Plan will include anintroduction describing the basis,function, and organization of the plan;a summary of the potential impacts tobe mitigated; a description ofpreliminary best management practicesand specific mitigation measures fromChapter 7 of the final Rail AlignmentEIS; a description of all mitigationcommitments in this Record ofDecision, including wetlandscompensatory measures and measuresto protect the Mojave desert tortoise andUte ladies'-tresses; a description of theMitigation Action Plan monitoring andreporting system that DOE willimplement to ensure that elements ofthe plan are met and are effective; anda schedule for actions and identificationof the responsible parties. DOE willdevelop the Mitigation Action Plan inconsultation with the proposedMitigation Advisory Board(s) anddirectly affected parties.

The Mitigation Action Plan will becompleted and made publicly availablebefore DOE takes any action under thisdecision that is the subject of amitigation commitment. DOE mayrevise the Plan as more specific anddetailed information becomes available,or in consultation with the proposedMitigation Advisory Board(s) anddirectly affected parties. At this stage inthe process, the Department has adoptedall practicable means to avoid orminimize environmental harm.

Issued in Washington, DC, on October 6,2008.

Edward F. Sproat, ifi,Director, Office of Civilian Radioactive, WasteManagement.[FR Doc. E8-24168 Filed 10-9-08; 8:45 am]BILLING CODE 6450-01-P 6450-01-P


Federal Energy RegulatoryCommission

[Docket No. PR08-15-003]

Energy Transfer Fuel, LP; Notice ofCompliance Filing

October 6, 2008.

Take notice that on October 1, 2008,Energy Transfer Fuel, LP filed a Reportof Refunds in compliance with theCommission's letter order issued on July11, 2008 in Docket Nos. PR08-15-000and PR08-15-001.

Any person desiring to protest thisfiling must file in accordance with Rule211 of the Commission's Rules ofPractice and Procedure (18 CFR385.211). Protests to this filing will beconsidered by the Commission indetermining the appropriate action to betaken, but will not serve to makeProtestants parties to the proceeding.Such protests must be filed on or beforethe date as indicated below. Anyonefiling a protest must serve a copy of thatdocument on all the parties to theproceeding.

The Commission encourageselectronic submission of protests in lieuof paper using the "eFiling" link athttp://www.ferc.gov. Persons unable tofile electronically should submit anoriginal and 14 copies of the protest tothe Federal Energy RegulatoryCommission, 888 First Street, NE.,Washington, DC 20426.

This filing is accessible on-line athttp://www.ferc.gov, using the"eLibrary" link and is available forreview in the Commission's PublicReference Room in Washington, DC.There is an "eSubscription" link on theWeb site that enables subscribers toreceive e-mail notification when adocument is added to a subscribeddocket(s). For assistance with any FERCOnline service, please [email protected], or call(866) 208-3676 (toll free). For TTY, call(202) 502-8659.

Comment Date: 5 p.m. Eastern TimeTuesday, October 14, 2008.

Kimberly D. Bose,Secretory.[FR Doc. E8-24159 Filed 10-9-08; 8:45 am]BILLING CODE 6717-01-P


Federal Energy RegulatoryCommission

[Docket No. ER09-2-000]

Butler Ridge, LLC; SupplementalNotice That Initial Market-Based RateFiling Includes Request for BlanketSection 204 Authorization

October 6, 2008.This is a supplemental notice in the

above-referenced proceeding of ButlerRidge, LLC's application for market-based rate authority, with anaccompanying rate tariff, noting thatsuch application includes a request forblanket authorization, under 18 CFRPart 34, of future issuances of securitiesand assumptions of liability.

Any person desiring to intervene or toprotest should file with the FederalEnergy Regulatory Commission, 888First Street, NE., Washington, DC 20426,in accordance with Rules 211 and 214of the Commission's Rules of Practiceand Procedure (18 CFR 385.211 and§ 385.214). Anyone filing a motion tointervene or protest must serve a copyof that document on the Applicant.

Notice is hereby given that thedeadline for filing protests with regardto the applicant's request for blanketauthorization, under 18 CFR Part 34, offuture issuances of securities andassumptions of liability, is October 27,2008.

The Commission encourageselectronic submission of protests andinterventions in lieu of paper, using theFERC Online links at http://www.ferc.gov. To facilitate electronicservice, persons with Internet accesswho will eFile a document and/or belisted as a contact for an intervenormust create and validate aneRegistration account using theeRegistration link. Select the eFilinglink to log on and submit theintervention or protests.

Persons unable to file electronicallyshould submit an original and 14 copiesof the intervention or protest to theFederal Energy Regulatory Commission,888 First St., NE., Washington, DC20426.

The filings in the above-referencedproceeding are accessible in theCommission's eLibrary system byclicking on the appropriate link in theabove list. They are also available forreview in the Commission's PublicReference Room in Washington, DC.There is an eSubscription link on theWeb site that enables subscribers toreceive e-mail notification when adocument is added to a subscribeddockets(s). For assistance with any




No.:

I declare:


On April 7, 2009,1 served the CIVIL APPEALS DOCKETING STATEMENT by placing atrue copy thereof enclosed in a sealed envelope with the U.S. FIRST CLASS MAIL (and alsoby FEDERAL EXPRESS NEXT DAY SERVICE where noted), addressed as follows:

[SEE A TTACHED SER VICE LIST]



Signature


SERVICE LIST

April 6, 2009

*(copies furnished via Federal Express Next Margaret J. Bupp, Esq.Day Service) Kevin C. Roach, Esq.Martha S. Crosland, Esq. U.S. Nuclear Regulatory CommissionNicholas P. DiNunzio, Esq. Office of Commission AppellateJames Bennett McRaeCyrus Nezhad, Esq.Christina C. Pak, Esq.U.S. Department of EnergyOffice of General Counsel1000 Independence Avenue S.W.Washington, DC 20585(202) 586-5000, Tel.: (202) 586-5793Fax: (202) 586-4403


* (copies furnished via Federal Express NextDay Service)Brian HembacherCalifornia Attorney General's Office300 South Spring StreetLos Angeles, CA 90013Tel. (213) 897-2638Fax: (213) 897-2802

*(copies furnished via Federal Express NextDay Service)U.S. Department of JusticeAttorney General of the United States950 Pennsylvania Ave, NWWashington, DC 20530-0001


AdjudicationMail Stop 0-15D21Washington, DC 20555-0001Tel. (301) 415-7000, Tel. (301) 415-1523Fax: (301) 415-3716

Kelly L. Faglioni, Esq.Donald P. Irwin, Esq.Michael R. Shebelskie, Esq.Counsel for the U.S. Department of EnergyHunton & Williams LLPRiverfront Plaza, East Tower951 East Byrd StreetRichmond, VA 23219Tel. (804) 788-8200, (804) 788-7334Fax: (804) 788-8218





SERVICE LIST

April 6, 2009













SERVICE LIST

April 6, 2009



Darcie L. Houck. Esq.John M. Peebles, Esq.Counsel for Timbisha Shoshone TribeFredericks, Peebles & Morgan LLP1001 Second StreetSacramento, CA 95814Tel. (916) 441-2700Fax: (916) 441-2067





Arthur J. Harrington, Esq.Counsel for Timbisha Shoshone YuccaMountain Oversight Program Non-ProfitCorporationGodfrey & Kahn, S.C.780 N. Water StreetMilwaukee, WI 53202


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