The opinion of the court was delivered by: Kessler, District Judge.
This matter comes before the Court upon Plaintiffs, Oil,
Chemical & Atomic Workers International Union's ("Plaintiffs" or
"OCAW") Motion for Summary Judgment [# 150, # 200], Plaintiffs'
Motion for Preliminary Injunction [# 192]*fn1,
Plaintiff-Intervenors', led by Natural Resources Defense Council,
("Intervenors" or "NRDC") Motion for Summary Judgment [# 151],
Federal Defendant, Department of Energy's, ("DOE"), Motion for
Summary Judgment [# 153], and Defendant BNFL, Inc.'s ("BNFL")
Motion for Summary Judgment [# 149]. Plaintiffs and Intervenors
seek an Order from this Court compelling DOE to prepare an
Environmental Impact Statement ("EIS") pursuant to the National
Environmental Policy Act ("NEPA"), 42 U.S.C. § 4321, prior to
BNFL's recycling of various surface contaminated and
volumetrically contaminated metals recovered in the course of
cleaning up a hazardous waste site at the Oak Ridge Reservation
in Oak Ridge, Tennessee. Upon consideration of the parties'
voluminous filings, the representations of the parties in open
court at oral argument, and the entire record herein, Plaintiffs'
Motion for Summary Judgment is denied; Plaintiffs' Motion for
Preliminary Injunction is denied as moot; Intervenors' Motion
for Summary Judgment is denied; DOE's Motion for Summary
Judgment is granted; and BNFL's Motion for Summary Judgment is
I. Factual Background*fn2
The Oak Ridge Reservation in Oak Ridge, Tennessee, was, for
nearly forty years, used to enrich uranium for nuclear weapon
development and nuclear power generation. The facility was closed
in 1985, and in 1989, the Environmental Protection Agency ("EPA")
placed the Oak Ridge facility on its National Priorities List of
contaminated sites. Pursuant to the Comprehensive Environmental
Response, Compensation, and Liability Act of 1980, as amended by
the Superfund Amendments and Reauthorization Act of 1986
("CERCLA"), 42 U.S.C. § 9601-75, EPA, DOE, and the Tennessee
Department of Environment and Conservation entered into a Federal
Facility Agreement ("FFA") to schedule the Oak Ridge facility for
decontamination and decommissioning, waste management, and
At issue in this case is the cleanup effort of three buildings
at the K-25 Gaseous Diffusion Plant at the Oak Ridge Reservation.
During nearly forty years of uranium enrichment activity at Oak
Ridge, many tons of machinery were contaminated. The contaminated
material, predominately metals, include both surface-contaminated
metals and volumetrically-contaminated metals.*fn3
The process of recycling surface-contaminated metal is
regulated under DOE Order 5400.5, Nuclear Regulatory Commission
("NRC") Regulatory Guide 1.86, and state regulations to be
promulgated by the Tennessee Department of Environment and
Conservation ("TDEC"). There is no national standard governing
the release of volumetrically contaminated metals.*fn4 The
Contract specifies that recycling will take place both on-site at
the K-25 Compound, and off-site at the facilities of
Manufacturing Sciences Corporation ("MSC"), a subcontractor of
Plaintiffs and Intervenors originally filed Complaints alleging
a host of statutory violations arising from DOE and BNFL's
contract to clean up the K-25 compound at the Oak Ridge
Reservation. On June 3, 1998, on Defendants' Motions to Dismiss,
this Court issued a Memorandum Opinion and Order dismissing the
majority of claims, but allowing survival of the narrow issue of
whether an EIS was required for the recycling and sale of scrap
metal by-products of the cleanup procedure. Oil, Chemical &
Atomic Workers Int'l Union v. Pena, 18 F. Supp.2d 6 (D.D.C.
1998). Discovery having been completed, that sole issue now comes
before the Court on cross-motions for summary judgment.
A party against whom a claim . . . is asserted . . .
may, at any time, move with or without supporting
affidavits for a summary judgment in the party's
favor as to all or any part thereof. . . . The
judgment sought shall be rendered forthwith if the
pleadings, depositions, answers to interrogatories,
and admissions on file, together with the affidavits,
if any, show that there is no genuine issue as to any
material fact and that the moving party is entitled
to judgment as a matter of law.
Fed.R.Civ.P. 56(b) -(c). The party seeking summary judgment bears
the initial burden of demonstrating an absence of a genuine issue
of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 322,
106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). In determining whether the
movant has met this burden, a court must consider all factual
inferences in the light most favorable to the non-moving party.
McKinney v. Dole, 765 F.2d 1129, 1135 (D.C.Cir. 1985). Once the
moving party makes its initial showing, however, the nonmoving
party must demonstrate "specific facts showing that there is a
genuine issue for trial." Celotex, 477 U.S. at 324, 106 S.Ct.
2548; McKinney, 765 F.2d at 1135. Moreover, "[i]n determining a
motion for summary judgment, the court may assume that facts
identified by the moving party in its statement of material facts
are admitted, unless such a fact is controverted in the statement
of genuine issues filed in opposition to the motion." Local Rule
While CERCLA authority is generally delegated to the
Environmental Protection Agency ("EPA"), the President has
delegated to the Department of Energy authority to clean up
facilities under DOE jurisdiction, custody, or control.
Response action planning begins with a site assessment by the
EPA. The EPA may list a particularly hazardous site on the
National Priorities List ("NPL"), after comparing its potential
threat to health and the environment with other CERCLA sites. The
Oak Ridge Reservation was listed on the NPL in 1989.
Upon inclusion of a DOE facility on the NPL, DOE and EPA must
enter into an interagency agreement to establish a framework for
coordinating response actions. Where a "non-time critical removal
action" is at issue, DOE must prepare an Engineering
Evaluation/Cost Analysis ("EE/CA") to assess proposed actions and
alternatives. 40 C.F.R. § 300.415(b)(4). The process of preparing
the EE/CA must include a period for public review and comment.
Of particular importance to the present case, once a CERCLA
cleanup action is initiated, Section 113(h) of CERCLA narrowly
restricts federal court jurisdiction over environmental
challenges to the cleanup action. Section 113(h) states in
No federal court shall have jurisdiction under
Federal law . . . to review any challenges to removal
or remedial action selected under section 9604 of
this title, or to review any order issued under
section 9606(a) of this title. . . .
42 U.S.C. § 9613(h).
Congress passed the National Environmental Policy Act ("NEPA"),
42 U.S.C. § 4321 et seq., in 1970 to ensure that federal
agencies properly consider the full environmental impact of major
federal actions, as well as alternatives to the proposed actions.
To accomplish that purpose, NEPA requires that a detailed
Environmental Impact Statement ("EIS") be prepared for major
federal actions significantly affecting the quality of the human
environment. 42 U.S.C. § 4332(2)(C).
Defendants argue as a threshold matter that the Court should
reconsider its earlier determination regarding the applicability
of Section 113(h) to the proposed recycling plan.
In its Memorandum Opinion and Order of June 3, 1998, the Court
specifically ruled on whether the proposed recycling plan falls
within the scope of Section 113(h). Applying a summary ...