Las Vegas, Nevada
March 5, 2004

Mr. Chairman and members of the subcommittee, for the record my name is Robert Loux. I am the Executive Director of the Nevada Agency for Nuclear Projects, the agency within the Nevada Governor's Office that is charged with overseeing the U.S. Department of Energy's Yucca Mountain repository program. I am grateful for the opportunity to be here today and address the issue of spent nuclear fuel (SNF) and high-level radioactive waste (HLW) to the proposed repository site in southern Nevada, especially DOE's approach to the identification of rail access to Yucca Mountain.

The current approach DOE is using to make transportation decisions is antithetical to what is required for a any sort of rational, supportable analysis. Rather than seeking to approach planning for the largest, most widespread, and longest duration SNF and HLW shipping campaign in history in a comprehensive and integrative fashion, DOE appears to be attempting to segment decision-making, moving forward on what are perceived to be politically expedient aspects while abandoning the analytical underpinnings needed to make decisions defensible and ignoring the implications of such decisions on the wider system.

Let's look for a moment at the current decision process DOE intends to use for making mode and rail access decisions, as reflected in the Federal Register Notice DOE published last December that is the basis for this hearing being held here today.

In that Notice, DOE indicated its preference for the Caliente rail spur as the preferred rail access corridor for Yucca Mountain. Yet nowhere is there documentation of the analyses to support such a preference. Neither the Yucca Mountain final Environmental Impact Statement (EIS) nor any other NEPA document that we are aware of contains a legally and substantively adequate analysis comparing the various rail spur options and justifying either the identification of Caliente as the preferred alternative or the selection of the Carlin route as the secondary preference.

While the Yucca Mountain EIS does not, in our opinion, provide an adequate and supportable basis for making mode and rail access decisions, DOE did promise in that EIS to follow a logical, albeit truncated, decision sequence and to consult with stakeholders in the rail corridor selection process. The EIS says:

  • "If the Yucca Mountain site was approved, DOE would issue at some future date a Record of Decision to select a mode of transportation. [p.1-3]

  • "If, for example, mostly rail was selected (both nationally and in Nevada), DOE would then identify a preference for one of the rail corridors in consultation with affected stakeholders, particularly the State of Nevada" (emphasis added) [p.1-3]

  • "Other transportation decisions, such as the selection of a specific rail alignment within a corridor, would require additional field surveys, State and local government and Native American tribal consultations, environmental and engineering analyses, and National Environmental Policy Act reviews" (emphasis added) [Pp. 1-3 to 1-4]

DOE chose not to honor even this minimal commitment for some form of logical and defensible decision-making. DOE published its Notice of a rail corridor preference on December 29, 2003, but did not engage in consultations with the State of Nevada or any of the affected stakeholders.

The Notice identifies the Caliente corridor as the "preferred rail corridor" in the event that DOE adopts the "mostly rail mode" and identifies the Carlin corridor as "the secondary preference in the event the Caliente corridor is not selected." No analysis supporting these decisions was provided.

By issuing the Notice, DOE proceeded to identify a preferred rail corridor before adopting a preferred mode and before any national rail routing work had been undertaken. That is very much akin to putting the cart before the horse, or in this case putting the caboose before the engine. The various rail corridor options in Nevada will have significant and differing implications for routes that would be impacted nationally by moving SNF and HLW to Nevada. Without first conducting a comparative analysis of national routes, the identification of one rail access corridor in Nevada over another is like a roll of the dice when it comes to understanding the implications of such a decision for states and cities across the country.

DOE's Notice also raises many other questions, including the following:

  • Why would DOE select a preferred corridor, without first formally adopting a preferred mode?

  • If DOE adopts the "mostly rail" mode, what is the actual modal mix would be expected? (Nevada believes that 35 percent or more or the waste would likely still be shipped by truck even if DOE succeeds in building a rail spur, resulting in about a thousand truck shipments per year.)

  • Why did DOE fail to consult with the State of Nevada (or anyone else) before selecting the Caliente corridor?

  • What specific criteria and data were used to select the preferred rail corridor and secondary preference, and where is the analysis that supports the selections?

  • Will other rail corridors remain under consideration, or be reconsidered, if Caliente and Carlin are both found to be infeasible - something that is not beyond the realm of possibility given that these two alternatives represent the longest, most costly, and most difficult of the rail access options discussed in the Yucca Mountain EIS?

  • When will DOE issue a Record of Decision regarding mode selection?

  • When will DOE conduct a national rail routing assessment to identify preferred rail routes and to understand what the implications of that assessment are for the selection of a Nevada rail access corridor?

  • Has DOE completely eliminated consideration of "mostly truck" as the preferred mode? (Under what circumstances would mostly truck be used?)

Mr. Chairman, these questions and hundreds of others that are raised by DOE's piecemeal approach to spent fuel and HLW transportation can only be answered, we believe, by requiring DOE to undertake a truly comprehensive, integrated, and symmetrical analysis of the transportation system. That can only be accomplished through a full and complete NEPA review, starting with a programmatic EIS for the transportation of SNF and HLW to a repository.

When planning is not done in a comprehensive and rational way, it is not surprising that federal agencies get into trouble; they miss important and what should be self-evident impacts of their actions; and their decision-making is open to charges that it is arbitrary and driven solely by political expediency. That is exactly what has happened with respect to the Caliente rail corridor decision.

Today, you will be hearing from a number of the people who stand to be significantly and most directly affected by the decision DOE announced in the December 29th Federal Register Notice - the ranchers whose land and grazing rights are already being disrupted by DOE's decision.

The Caliente rail option has been on DOE's list of possible rail access corridors almost from the beginning of the Yucca Mountain project in the mid-1980s, for almost 20 years. Yet, in all that time, DOE never once thought to reach out to these ranchers; to let them know what the Caliente rail corridor might mean to them; to seek their input; or to take a hard look at how a decision to select the Caliente option might impact their lives and livelihood.

There are other parcels of private land and private interests along the proposed corridor that will also be negatively affected. Most prominent among these is a series of singularly unique and internationally regarded sculptures entitled "City" that have been created over the past two decades by internationally known artist Michael Heizer. Located adjacent to the northeastern segment of the proposed rail corridor, Heizer's massive sculpture lies surrounded by two routing options for the rail spur - whatever option is chosen will unavoidably have major impacts on the work. Yet, until DOE published its Notice, DOE was not even aware that this massive project even existed and had not examined how the selection of the Caliente option might impact it - despite having supposedly "studied" the Caliente route for almost 20 years.

DOE's cavalier treatment of the Nevada ranchers and the Heizer project is characteristic of the of the way the Department has approached transportation planning from the beginning of the Yucca Mountain program. In fact, DOE has no transportation plan. When Congress last year directed DOE to produce it's plan for Yucca Mountain transportation, DOE responded (some would say contemptuously) with a meager ten page outline, euphemistically titled a "strategic plan," purporting to discuss how it might go about arriving at a plan. DOE's "strategic plan" contains no specifics, but is rife with platitudes about consultation and cooperation with the State of Nevada, local governments, Indian tribes, and other stakeholders. Yet even those commitments were readily dispensed with when DOE issued its rail corridor identification Notice - the first major decision relating to the transportation program.

Despite our opposition to construction of a repository at Yucca Mountain, the State of Nevada has taken virtually every possible opportunity to make constructive proposals to the appropriate Federal agencies: DOE, the U.S. Nuclear Regulatory Commission (NRC), and the U.S. Department of Transportation (DOT).

Mr. Chairman, for us the safe and secure transportation of SNF and HLW has always been an issue that transcends the pro vs. con Yucca Mountain debate. Wherever a repository or central storage facility might someday be located, the system for transporting waste must not only be the safest possible, but also publicly acceptable. To that end, for the better part of two decades the State of Nevada has consistently and repeatedly recommended specific measures that the DOE should take to manage the risks associated with transportation of spent nuclear fuel and high-level radioactive waste. In addition, the Western Interstate Energy Board and the Western Governor's Association have done extensive work on nuclear waste transportation and provided DOE with detailed and substantive guidance over the past 15 or more years.

WIEB has even developed an extensive High-Level Waste Transportation Primer that provided DOE with a comprehensive framework for an adequate transportation system. WGA has passed numerous resolutions urging DOE to adopt an integrated and comprehensive approach to transportation planning, including adequate preparations to deal with terrorism and to prevent catastrophic accidents through meaningful cask testing.

In all that time, DOE's response has been to ignore the information it received, preferring to move forward in a fashion that served political ends rather than working in concert with affected parties towards the development of a workable and defensible SNF and HLW transportation system. The Caliente rail corridor decision is just the latest example of DOE's disregard for sound and defensible transportation planning.

Steps DOE Must Follow in the Process

For the record and for the benefit of the subcommittee, here is how Nevada believes the repository transportation program should be addressed and how programmatic decisions should be made:

  1. First, DOE must develop a draft national transportation plan describing a proposed action and alternatives, including a Nevada component that is fully consistent with the national plan (action plus alternatives). This draft transportation plan would then become the basis for a formal NEPA scoping process.

  2. Using the draft plan, DOE would initiate a formal scoping process for a transportation programmatic EIS. This must involve an adequate comment period and scoping meetings in states and cities along all proposed transportation routes, both nationally and in Nevada.

  3. Upon completion of the scoping process, DOE must prepare a draft EIS that fully assesses impacts for both the national system (proposed action and alternative) and the Nevada system (proposed action and alternatives). DOE should take extraordinary steps to assure that the public and affected cities, counties, and communities along transportation routes, both nationally and in Nevada, are aware of the draft EIS and have ample opportunity to comment on it. DOE must hold hearings on the draft EIS in communities all along transportation routes.

  4. Upon completion of the comment period and hearings on the draft EIS, DOE would prepare a final programmatic EIS that fully complies with NEPA and CEQ requirements. The final EIS will set forth the preferred alternative(s) selected by DOE for both the national and Nevada system, assuring that all aspects of each will be internally consistent.

  5. DOE would subsequently issue a formal Record of Decision setting forth the integrated SNF and HLW transportation system (both the selected national and Nevada components and the interface between them).

  6. The final EIS and the Record of Decision will become the basis for any discussions with the State of Nevada, Nevada local governments, other states and local governments, the transportation industry, etc. for moving ahead with SNF or HLW transportation activities.

  7. Additional NEPA analysis supporting key decisions in both the national and Nevada transportation efforts could then be tiered to the final transportation programmatic EIS.

The process we have laid out is not something new or unique to DOE. The Department used just such a NEPA process in compiling the Waste Management Programmatic Environmental Impact Statement that was done in support of planning and decision-making for clean-up of the DOE weapon's complex. By using a this approach, DOE was able to effectively and logically support decisions at the wider programmatic level. Where those decisions led to the need for more operationally-specific actions, additional NEPA reviews logically flowed out of and were tiered to the programmatic EIS. If such a process could be used successfully for DOE's weapons clean-up actions, there is no reason why DOE cannot employ it for the equally complex Yucca Mountain transportation program.

Mr. Chairman, this concludes my remarks. I want to thank you again for the opportunity to testify this morning. I would be happy to respond to any questions that members of the subcommittee might have.