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OIL

June 2, 1998

OIL, CHEMICAL & ATOMIC WORKERS INT'L UNION, AFL-CIO, et al., Plaintiffs,
v.
FEDERICO Pena, SECRETARY OF ENERGY and UNITED STATES DEPARTMENT OF ENERGY, et al., Defendants.



The opinion of the court was delivered by: KESSLER

[EDITOR'S NOTE: THE ORIGINAL SLIP OPINION CONTAINED ILLEGIBLE WORDS AND/OR MISSING TEXT.]

 MEMORANDUM OPINION

 The Department of Energy ("DOE") and several of its contractors have undertaken the cleanup of a hazardous waste site at the Oak Ridge Reservation ("ORR") in Oak Ridge, Tennessee. ORR was for many years used for nuclear weapons research and development. Plaintiffs Oil, Chemical & Atomic Workers International Union, AFL-CIO ("OCAW"), OCAW Local 3-288, and several individual OCAW members (collectively "OCAW Plaintiffs" or "Plaintiffs") allege that the cleanup, or decontamination and decommissioning ("D&D"), should not proceed until the Defendants have promulgated an Environmental Impact Statement ("EIS"), which the Plaintiffs claim is required by the National Environmental Policy Act, 42 U.S.C. § 4332(2)(C) ("NEPA"). Plaintiffs also allege that the second phase of the project, the recycling and sale of recovered scrap metal, should not proceed until the DOE has issued an EIS to determine the environmental impact of that portion of the cleanup activities.

 Plaintiff-Intervenors Natural Resources Defense Council ("NRDC"), Oak Ridge Environmental Peace Alliance, the Coalition for a Healthy Environment, and the Nuclear Information and Resource Service (collectively "NRDC Plaintiff-Intervenors" or "Plaintiff-Intervenors") present a narrower claim, namely that only a portion of the cleanup activities -- the proposed recycling and resale of materials recovered from the site -- is covered by NEPA and therefore should not proceed absent an EIS.

 The OCAW Plaintiffs also allege that, since the cleanup activities at ORR require a major workforce restructuring, the DOE and its contractors are required to comply with the requirements of Section 3161 of the National Defense Authorization Act for Fiscal Year 1993, 42 U.S.C. § 7274h ("Section 3161"). Plaintiffs allege that DOE and its contractors have failed to fulfill various Section 3161 obligations.

 This matter is now before the Court on the Defendants' Motions to Dismiss Plaintiffs' and Plaintiff-Intervenors' Amended Complaints and Defendant Community Reuse Organization of East Tennessee's ("CROET") Motion to Change Venue and Motion to Sever the Claims Against It.

 Upon consideration of the Motions, Oppositions, Replies, Surreplies, the arguments made at the Motions hearing, and the entire record contained herein, the Federal Defendant's Motion to Dismiss Plaintiffs' Amended Complaint [ # 54] is granted in part and denied in part ; Defendant British Nuclear Fuels, Inc.'s ("BNFL") Motion to Dismiss Plaintiffs' Amended Complaint [ # 18] is granted in part and denied in part ; Defendant CROET's Motion to Dismiss Plaintiffs' Amended Complaint [ # 39] is granted ; *fn1" Defendant CROET's Motion to Change Venue [ # 39] is denied as moot; Defendant CROET's Motion to Sever the Claims Against It [ # 64] is denied as moot; the Motion to Dismiss Plaintiffs' Amended Complaint [ # 61] of Defendant-Intervenor Building and Construction Trades Department, AFL-CIO and the Knoxville Building and Construction Trades Council, AFL-CIO (collectively "Building Trades") is granted in part and denied in part ; *fn2" Defendant BNFL's Motion to Dismiss NRDC Plaintiff-Intervenors' Amended Complaint [ # 80] is denied ; the Federal Defendant's Motion to Dismiss NRDC Plaintiff-Intervenors' Amended Complaint [ # 81] is denied ; and the Building Trades' Motion to Dismiss NRDC Plaintiff-Intervenors' Amended Complaint [ # 81] is denied .

 I. Background3

 Plaintiff OCAW represents approximately 6,000 employees who work at DOE nuclear defense facilities. It is a national representative of collective bargaining units within the meaning of 42 U.S.C. § 7274h(b). Plaintiff OCAW Local 3-288 represents employees and former employees of the ORR facility who have worked for, inter alia, the management and operations contractor, Lockheed-Martin Energy Systems ("LMES"). Other OCAW Plaintiffs include employees and former employees at ORR.

 A. Section 3161 Claims

 1. Workforce Restructuring at ORR

 Whenever a change in the workforce at a defense nuclear facility is deemed necessary, Section 3161 directs the Secretary of Energy ("Secretary") to promulgate a workforce restructuring plan ("WRP") and thereafter issue an updated plan annually. 42 U.S.C. § 7274h(e). The OCAW Plaintiffs argue that, since the cleanup activities at ORR require a major workforce restructuring, DOE and its contractors are required to comply with the requirements of Section 3161.

 Section 3161 requires the Secretary to be "guided" by certain "objectives" when preparing the initial WRP. These "objectives" include providing terminated employees with hiring preferences "to the extent practicable". Id. at § 7274h(c). They also include providing retraining for those employees, also "to the extent practicable". Id. The statute requires the Secretary to consult with various groups in developing and updating the WRP, submit the WRP to Congress, and "work on an ongoing basis with representatives of the Department of Labor, workforce bargaining units, and States and local communities in carrying out a plan". Id. at §§ 7274h(b), (d) & (f).

 The OCAW Plaintiffs allege that the DOE and its contractors have failed to comply with the requirements of Section 3161. Their primary concern is that the DOE and its contractors and subcontractors have failed to sufficiently provide for the continued employment and employment benefits of OCAW members.

 Plaintiffs complain that DOE has improperly delegated to BNFL the DOE's Section 3161 obligation to implement a job preference for displaced ORR employees. They allege that this delegation is unlawful and violates their rights under Section 3161.

 Plaintiffs claim that, even if BNFL does hire the individuals encompassed by the Amended Complaint, no plan exists to mitigate the impact of its D&D effort on the continuity of employees' pensions, benefits, and retiree health care.

 B. Environmental Claims

 1. Statutory and Regulatory Background

 The Comprehensive Environmental Response, Compensation, and Liability Act of 1980, Pub. L. No. 96-510, 94 Stat. 2767 ("CERCLA"), as amended by the Superfund Amendments and Reauthorization Act of 1986, 42 U.S.C. §§ 9601-75 (1988), was enacted to ensure the efficient cleanup of sites contaminated with hazardous wastes and other pollutants. CERCLA gives the federal government the power to either clean up a site and sue responsible parties for reimbursement (Section 104) or force a responsible party itself to undertake the cleanup (Section 106). Cleanup activities under CERCLA are generally referred to as "response" actions and are one of two types: a "removal action", which is a short-term remedy designed to minimize and mitigate immediate harm, or a "remedial action", which is intended to provide a permanent solution to remedy the threatened release of a hazardous substance. 42 U.S.C. §§ 9601(23) and 9601(24).

 The President, pursuant to § 115 of CERCLA, has delegated to the Secretary of Energy certain CERCLA response authority for facilities under DOE jurisdiction, custody, or control. Before response action planning begins, the Environmental Protection Agency ("EPA") must assess the site. The EPA places sites on a National Priorities List ("NPL") of federal facilities included in the Federal Agency Hazardous Waste Compliance Docket according to their rank among other CERCLA sites in terms of potential threat to health and the environment. 42 U.S.C. § 9605. The EPA placed ORR on the NPL in November 1989. (Pena Mot. to Dismiss at 11, citing 54 Fed. Reg. 48184.)

 Once a site is placed on the NPL, CERCLA and the National Oil and Hazardous Substances Pollution Contingency Plan ("NCP"), 40 C.F.R. Part 300 (1996), impose various requirements that govern the course of any remedial work performed at the site.

 In accordance with the requirements of CERCLA Section 120, the Environmental Protection Agency ("EPA"), DOE, and the Tennessee Department of Environment and Conservation ("TDEC") entered into a Federal Facilities Agreement ("FFA") for ORR. The FFA provides a comprehensive framework for remediating the environmental impact of past and present activities at ORR. (Ex. 3, Pena Mot. to Dismiss, Halsey Decl. P 3, Att. A, "Federal Facility Agreement Under Section 120 of CERCLA and Sections 3008(h) and 6001 of RCRA" [hereinafter "FFA at ".)

 The NCP, 40 C.F.R. Part 300 (1996), establishes procedures and criteria to be used in assessing remedial alternatives. 42 U.S.C. § 9605. Where a "non-time critical removal action" *fn4" may be appropriate, the NCP requires the agency to prepare an Engineering Evaluation/Cost Analysis ("EE/CA") to assess the proposed action and alternatives. 40 C.F.R. 300.415(b)(4).

 2. Planned Cleanup Activities at ORR

 The DOE, with the concurrence of the EPA and TDEC, issued an Engineering Evaluation/Cost Analysis ("EE/CA") in July 1997 that compared and analyzed three alternatives for addressing contamination in three buildings (K-29, K-31, and K-33) at the Eastern Tennessee Technological Park ("ETTP") at ORR. *fn5" The EE/CA identified as the preferred alternative, "Alternative 2", which includes "equipment removal and building decontamination, including the removal, collection, and transportation of recyclable materials (process components, piping, and equipment) to the private sector for recycling and processing for reuse." (Ex. 3, Pena Mot. to Dismiss, Halsey Decl. P 7, Att. C, "Engineering Evaluation/Cost Analysis for Equipment Removal and Building Decontamination for Buildings K-29, K-31, and K-33, East Tennessee Technology Park, Oak Ridge, Tennessee", at 1-1 and 1-2 [hereinafter "EE/CA at "].) The EE/CA determined that the cleanup of the three buildings would be conducted as a non-time-critical removal action.

 After a short public comment period, DOE submitted the EE/CA and an "action memorandum" to the EPA and TDEC requesting their concurrence on initiation of Alternative 2. DOE received concurrences from TDEC and EPA to proceed with the removal action in September 1997.

 The OCAW Plaintiffs allege that the proposed cleanup should not proceed until the Defendants have prepared an EIS, which they claim is required by NEPA. NEPA requires federal agencies to issue a detailed EIS for major federal actions which will significantly affect the quality of the human environment. 42 U.S.C. § 4332(2) (C). Plaintiffs argue that NEPA requires an EIS to determine the environmental impact of the entire cleanup project as well as the proposed recycling and sale of ostensibly decontaminated but potentially radioactive scrap metal.

 The NRDC Plaintiff-Intervenors focus their concerns more narrowly on the second phase of the project and allege that the recycling and sale of recovered scrap metal should not proceed until the DOE has issued an EIS to determine the environmental impact of that portion of the cleanup activities.

 C. The DOE-BNFL Contract

 In August 1997, DOE awarded to BNFL a contract under which BNFL will remove all gaseous diffusion and related "process" equipment from Buildings K-29, K-31, and K-33 and decontaminate the remaining building surfaces and structures to meet prescribed cleanup standards. (NRDC Am. Compl. P 22.) The equipment now located in the buildings contains approximately 126, 351 tons of contaminated or potentially contaminated metals. The contract requires BNFL to complete the equipment removal and building decontamination no later than December 31, 2003. (Id. P 24.)

 DOE has given or will give to BNFL title to all property it dismantles or demolishes under the contract, excluding only property which DOE specifically designates it is retaining. (Id. P 26.) The contract does not require BNFL to use any one specific method to dispose of the recovered property, which includes approximately 112,000 tons of contaminated nickel, aluminum, stainless steel, and copper. (Id. PP 26, 28.) Instead, the EE/CA, which the Federal Defendants claim is the "definitive document setting forth the scope of the D&D project", Pena Reply, Mot. to Dismiss at 17, states only that "disposition of equipment and scrap metal will take advantage of recycling, reuse, or unrestricted release when possible and economically feasible." (EE/CA at 4-2 (emphasis added).) The EE/CA does require, however, that "approved waste facilities will be used to store or dispose of wastes." (Id.)

 Plaintiff-Intervenors note that, although the DOE-BNFL contract is referred to as the "East Tennessee Technology Park Three-Building Decontamination and Decommissioning (D&D) and Recycle Project" (emphasis added), the contract itself only requires BNFL to remove the equipment and decontaminate the buildings, that is, to complete the "D&D" portion of the project. The contract does not require BNFL to recycle any materials or equipment removed from the buildings. DOE has instead given BNFL full discretion to determine what methods it will use to recycle the scrap metals or even whether it will recycle.

 D. The DOE-CROET Leases

 CROET is a non-profit corporation principally financed by DOE. Its purpose is to assist the private sector in creating jobs in the Oak Ridge Region. (Mem. CROET Am. Mot. Dismiss or Change Venue at 2.) It enters into leases with DOE for portions of buildings at ETTP and in turn subleases these buildings to private firms. ( Id. at 2-3.) CROET states that it does not hire or have any responsibility for individuals employed by the sublessors at these sites. (Id. at 3.)

 The OCAW Plaintiffs claim that the DOE-CROET lease agreement requires CROET to use the leased space to promote work for individuals who have lost their jobs as a result of DOE's change in mission. Plaintiffs allege that CROET has ignored this obligation and "has become a cause of unemployment rather than a source of employment". (OCAW Am. Compl. P 69.)

 E. The Building Trades

 The Building Trades, which have historically represented employees at ORR who perform construction work, will enter into a collective bargaining agreement, or "project labor agreement", with BNFL covering all the construction work involved in the D&D at ETTP. Under the project labor agreement, BNFL will recognize the Building Trades as the collective bargaining representative for on-site construction work involved in the D&D and other related activities at ETTP. (Building Trades Mot. to Dismiss OCAW Am. Compl. at 3 (citations omitted).)

 The OCAW Plaintiffs fear that, if BNFL enters into any subcontract concerning the D&D, Plaintiffs' hiring preferences and other rights which they claim under Section 3161 would be rendered "illusory". Plaintiffs thus seek to enjoin BNFL from awarding any subcontract which might lead to a preventable loss of employment for their members and for the individual Plaintiffs. (See, e.g., OCAW Am. Compl. P 126.)

 The Building Trades have intervened because they oppose Plaintiffs' efforts to enjoin the implementation of certain provisions of the project labor agreement and the Building Trades's referral procedures. (See Building Trades Reply to OCAW Opp'n to Building Trades Mot. to Dismiss at 7.)

 II. Analysis

 A. Standard of Review

 Under Fed. R. Civ. P. 12(b)(6), a complaint shall not be dismissed for failure to state a claim for relief unless "it appears beyond a reasonable doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Conley v. Gibson, 355 U.S. 41, 45-46, 2 L. Ed. 2d 80, 78 S. Ct. 99 (1957). Ordinarily, as already noted, the factual allegations of the complaint must be presumed true and liberally construed in favor of the ...


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