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June 29, 1999


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 granted.

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 environmental remediation.

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 BNFL.

II. Procedural Posture

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.

III. Standard of Review

  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 108(h).

IV. Statutory Scheme


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 relevant part:

  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).

V. Analysis

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 ...

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