Oil, Chemical & Atomic Workers International Union v. Richardson

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued May 16, 2000 Decided July 7, 2000

No. 99-5295

Oil, Chemical and Atomic Workers International Union,
AFL-CIO, et al.,
Appellants

v.

Bill Richardson, Secretary of Energy, et al.,
Appellees

Appeal from the United States District Court
for the District of Columbia
(No. 97cv01926)

Reuben A. Guttman argued the cause for appellants. With
him on the briefs were Daniel Guttman, Brian P. McCaffer-
ty, Charles V. Firth and Traci L. Buschner.

Scott S. Harris, Assistant U.S. Attorney, argued the cause
for appellees. With him on the brief were Wilma A. Lewis,
U.S. Attorney, R. Craig Lawrence, Assistant U.S. Attorney,

Lois J. Schiffer, Assistant Attorney General, U.S. Depart-
ment of Justice, and Evelyn S. Ying, Attorney.

Francis L. Casey, III, Kathy B. Houlihan, Charles P.
Groppe, Alex S. Karlin, Terry R. Yellig and Richard M.
Resnick were on the brief for appellee BNFL, Inc., et al.

Before: Williams, Sentelle and Henderson, Circuit
Judges.

Opinion for the Court filed by Circuit Judge Williams.

Williams, Circuit Judge: In 1997 the Department of Ener-
gy ("DOE") contracted to decontaminate and decommission
three buildings at its nuclear weapons facility in Oak Ridge,
Tennessee. The Oil, Chemical and Atomic Workers Interna-
tional Union, AFL-CIO ("OCAW"), a labor union whose
members work at this facility, brought suit seeking to enjoin
execution of the contract. (Also suing were several of the
union's individual members, who will henceforth be disregard-
ed.) OCAW's theories are twofold. First, it claims that DOE
and its contractors violated s 3161 of the National Defense
Authorization Act for Fiscal Year 1993, 42 U.S.C. s 7274h,
which it reads as requiring DOE to provide its members
continued employment and employment benefits after the
implementation of a major workforce restructuring. Second,
it argues that under s 102(2)(c) of the National Environmen-
tal Policy Act ("NEPA"), 42 U.S.C. s 4332(2)(C) the recycling
and sale of recovered metals from the project cannot proceed
unless an environmental impact statement is first prepared.
The district court granted defendants' motion to dismiss on
the first claim, Oil, Chemical & Atomic Workers Int'l Union,
AFL-CIO v. PeNa, 18 F. Supp.2d 6, 16 (D.D.C. 1998) ("OCAW
I"), and their motion for summary judgment on the second.
Oil, Chemical & Atomic Workers Int'l Union, AFL-CIO v.
PeNa, 62 F. Supp.2d 1, 2 (D.D.C. 1999) ("OCAW II").

On the s 3161 claim, OCAW made clear at oral argument
that its sole current claim is that DOE failed to enforce the
labor provisions of its contracts. Because nothing in the
statute provides a meaningful standard against which to
judge any such agency nonenforcement, we find the claim

barred by the preclusion of review in 5 U.S.C. s 701(a)(2).
See Heckler v. Chaney, 470 U.S. 821 (1985). As to the NEPA
claim, s 113(h) of the Comprehensive Environmental Re-
sponse, Compensation, and Liability Act of 1980
("CERCLA"), 42 U.S.C. s 9613(h), withholds federal court
jurisdiction (subject to irrelevant exceptions) over any "chal-
lenges to removal or remedial action selected under section
[104] of this title." Because the recycling activity provided
for in the contracts clearly qualifies as such a "removal"
action, we have no jurisdiction over the NEPA claim. Ac-
cordingly, we affirm.

* * *

For many years the Oak Ridge Reservation was used to
enrich uranium for nuclear weapons and nuclear power gen-
eration. In 1989 EPA placed it on the National Priority List
of contaminated sites. OCAW II, 62 F. Supp.2d at 2. Later,
acting under CERCLA s 120, 42 U.S.C. s 9620, EPA, DOE,
and the Tennessee Department of Education and Conserva-
tion entered into a Federal Facilities Agreement ("FFA") for
Oak Ridge, thereby scheduling the facility "for decontamina-
tion and decommissioning, waste management, and environ-
mental remediation." In March 1997 they amended the FFA
to include a schedule for the cleanup of three buildings at Oak
Ridge's K-25 Gaseous Diffusion Plant, the cleanup in dispute
here. In August 1997 DOE awarded a contract to British
Nuclear Fuels, Inc. ("BNFL") to remove the equipment and
decontaminate the buildings. We turn first to the s 3161
issue, then to NEPA.

After determining that a large reduction in workforce
would result from closing the facility, DOE undertook work-
force restructuring efforts. Section 3161 of the National
Defense Authorization Act for Fiscal Year 1993, 42 U.S.C.
s 7274h, requires that when "a change in the workforce at a
defense nuclear facility is necessary, the Secretary of Energy
... shall develop a plan for restructuring the workforce for
the defense nuclear facility." DOE's initial workforce re-
structuring plan ("WRP"), which was finalized on November
29, 1995, mimicked s 3161's stated objectives. It said, for

instance, that hiring preferences would be provided to eligible
employees "to the extent practicable." Oak Ridge Operations
Work Force Restructuring Plan, at 5-1 (November 29, 1995).
The WRP also provided for medical benefits, outplacement
assistance, relocation assistance, training programs, and edu-
cation assistance. Id. at 4-1 to 5-2.

The contract with BNFL effectively delegated to it the
fulfillment of the WRP's mandates. DOE/BNFL Contract, at
H-9 to H-10. BNFL then negotiated a Project Labor
Agreement ("PLA") with Knoxville Building and Construction
Trades Council, AFL-CIO ("Building Trades"), to address
how the construction workers for the project would be hired.
The PLA incorporated the hiring preference embodied in the
WRP: "[T]he Union shall recognize and select qualified appli-
cants for referral in accordance with Section 3161 ... and/or
the Employer's contractual obligation to [DOE] relating to
3161." Project Agreement Between BNFL Inc. and Building
Trades (August 7, 1997), at 6.

We agree with the district court that review of the s 3161
claim is barred by s 701(a)(2) of the Administrative Proce-
dure Act ("APA"). (As such preclusion is jurisdictional,
Claybrook v. Slater, 111 F.3d 904, 908 (D.C. Cir. 1997), we
may affirm dismissal of the claim without reaching the other
jurisdictional defenses--such as DOE's mootness contention.
See Ruhrgas AG v. Marathon Oil Co., 526 U.S. 574, 584-85,
119 S. Ct. 1563, 1570 (1999).) APA judicial review is unavail-
able "to the extent that--(1) statutes preclude judicial review;
or (2) agency action is committed to agency discretion by
law." 5 U.S.C. s 701(a). Agency action falls within
s 701(a)(2) when "the statute is drawn so that a court would
have no meaningful standard against which to judge the
agency's exercise of discretion." Heckler v. Chaney, 470 U.S.
821, 830 (1985). Here, the statute says that "the Secretary
shall be guided by the following objectives," 42 U.S.C.
s 7274h(c), which include providing terminated employees
with hiring preferences "to the extent practicable," id. Not-
ing that these provisions gave the Secretary "enormous dis-

cretion," the district court held that s 3161 fell within Cha-
ney's bar. OCAW I, 18 F. Supp.2d at 15-16.

In view of OCAW's present exclusive focus on enforcement
of the BNFL contract, we need not finally resolve whether
for every context the statute's language reaches Chaney
levels of discretion. Section 3161 requires the Secretary of
Energy to "develop a plan for restructuring the workforce,"
and the Secretary did so through the WRP, which incorporat-
ed the further mandates of s 3161. DOE then delegated the
statutory requirements in its contract with BNFL, which
were in turn subdelegated in part to Building Trades. Be-
cause DOE satisfied its requirement to develop a plan,
OCAW can now complain only of inadequate contract enforce-
ment. It thereby brings its cause squarely within Heckler v.
Chaney's presumption of unreviewability for enforcement de-
cisions: "[A]n agency's decision not to prosecute or enforce,
whether through civil or criminal process, is a decision gener-
ally committed to an agency's absolute discretion." 470 U.S.
at 831. The Court justified this presumption on several
grounds. First, the agency has expertise in assessing wheth-
er a violation has occurred and whether it is a valuable use of
the agency's resources to commence enforcement proceed-
ings. Second, "when an agency refuses to act it generally
does not exercise its coercive power over an individual's
liberty or property rights, and thus does not infringe upon
areas that courts are often called upon to protect." Id. at
832.

Although Chaney did not explicitly address contract en-
forcement, it seems indistinguishable from civil enforcement
activities in the dimensions relevant to Chaney; certainly
OCAW offers no distinctions. Nor does the statute contain
any guidance on the Secretary's exercise of enforcement
power, such as might rebut the presumption. See id. at 833.
Nor, finally, can we find any such limits in DOE's Notice of
Interim Planning Guidance, Planning Guidance for Contrac-
tor Work Force Restructuring, 61 Fed. Reg. 8593, 8595/2,
8599/2 (1996), to which OCAW points in a search for the
needed non-discretionary backbone. Of course our decision
here says nothing about the possible ability of plaintiffs to sue
as third-party beneficiaries of the BNFL contract or the
PLA.

 We thus turn to the NEPA claim. CERCLA s 113(h), 42
U.S.C. s 9613(h), says that "[n]o Federal court shall have
jurisdiction under Federal law ... to review any challenges
to removal or remedial action selected under section [104] of
this title, or to review any order issued under section [106] of
this title." Although s 113(h) is subject to limited excep-
tions--e.g., for recovery of "response costs or damages or for
contribution," 42 U.S.C. s 9613(h)(1), and for reimbursement
of costs in response to a remedial order that was arbitrary
and capricious, id. s 9613(h)(3)--it otherwise effectuates a
"blunt withdrawal of federal jurisdiction," North Shore Gas
Co. v. EPA, 930 F.2d 1239, 1244 (7th Cir. 1991), despite its
more limited rationale "that pre-enforcement review would be
a significant obstacle to the implementation of response ac-
tions and the use of administrative orders." S. Rep. No. 11,
99th Cong. 1, 58 (1985).

The government here says that the cleanup plan constitutes
a "removal" action as the term is used in s 113(h). This is
defined in 42 U.S.C. s 9601(23) as:

the cleanup or removal of released hazardous substances
from the environment, such actions as may be necessary
[sic] taken in the event of the threat of release of
hazardous substances into the environment, ... the dis-
posal of removed material, or the taking of such other
actions as may be necessary to prevent, minimize, or
mitigate damage to the public health or welfare or to the
environment....

OCAW correctly points out that recycling is not explicitly
mentioned here, though it is in the definition of "remedial
action." 42 U.S.C. s 9601(24). But we agree with the dis-
trict court that the broader language of s 9601(23), "disposal
of removed material," is properly understood to encompass
disposals that take the form of recycling. OCAW II, 62
F. Supp.2d at 6 n.5. Moreover, because "remedial actions"
are also protected by s 113(h), OCAW's argument would
prove pointless here, unless, for some unmentioned reason,
DOE's having said "removal" when it should have said "reme-
dial action" were fatal to its invocation of s 113(h).

OCAW challenges the applicability of s 113(h) on the basis
that this recycling is not within the scope of DOE's "removal

action," largely because the decision to recycle is left to the
sole discretion of BNFL. Relying on the language of DOE's
Engineering Evaluation/Cost Analysis (comparing the alter-
natives for addressing contamination at the K-25 facility),
however, the district court found that despite the allowance of
discretion, DOE and BNFL expressed a strong preference
for recycling. Because recycling was the "primary method of
waste disposal" contemplated by the parties, it was part of
the "removal action" for purposes of s 113(h). OCAW II, 62
F. Supp.2d at 6. Moreover, other documents "mad[e] abun-
dantly clear that BNFL is absolutely required to dispose of
all waste whether by recycling or otherwise," id. at 7, and
such other "disposal of removed material" is explicitly within
the definition of a removal action. See 42 U.S.C. s 9601(23).

The second argument alone is decisive. As both options
under the plan qualified as actions sheltered by s 113(h), the
case requires no theorizing as to whether the section might
apply to a non-sheltered practice that was somehow part of
an action otherwise protected by s 113(h). OCAW's claims
here are insubstantial.

The judgment of the district court is

Affirmed.