recycling in comparison with any other method of disposal.
The Court is further concerned by the fact that no national
standard exists governing the unrestricted release of
volumetrically contaminated metals. Both EPA and NRC have
attempted to develop federal regulatory standards for
volumetrically contaminated metals, but both agencies have tabled
their efforts in order to focus on other concerns. The result is
no oversight by any federal regulatory agencies. Instead, TDEC,
which has neither the resources nor the extensive expertise of a
national regulatory agency, is the only body with any supervisory
Section 113(h) is very clear, however, that courts are not to
interfere with ongoing cleanup actions. The fact that EPA and
NRC, after taking years to try to develop national standards,
were unable to do so because of inability to develop consensus in
the scientific community does not relieve the Court from applying
Section 113(h) in accordance with Congressional intent.
Plaintiffs and Intervenors have also raised legitimate concerns
as to the lack of public notice and comment surrounding the
entire process by which Defendants settled on recycling as a
disposal method. While it is true that Plaintiffs and Intervenors
had an opportunity to raise their concerns during the first and
only public comment period following publication of the EE/CA, it
is nevertheless startling and worrisome that from that early
point on, there has been no opportunity at all for public
scrutiny or input on a matter of such grave importance.
The lack of public scrutiny is only compounded by the fact that
the recycling process which BNFL intends to use is entirely
experimental at this stage. The process has not been implemented
anywhere on the scale which this project involves. Plaintiffs
allege, and Defendants have not disputed, that there is no data
regarding the process' efficacy or track record with respect to
safety. Furthermore, even as of March 18, 1999, when parties
appeared before the Court for a Status Conference, it was not
fully clear when BNFL would be granted the legal rights to use
the recycling process.
While the concerns raised by Plaintiffs and Intervenors are
entirely legitimate, this Court must nevertheless follow the
dictates of the applicable Congressional statute. Congress
enacted Section 113(h) for the best of reasons — namely to
prevent interference with efforts to cleanup hazardous,
contaminated sites. Whether or not the situation here is what
Congress had in mind, the Court cannot ignore the clear wording
of Section 113(h). At this stage, where the government has
structured and begun a complex cleanup action, Section 113(h)
makes abundantly clear that the Court is not to interfere.
The Court, having concluded that the proposed recycling plan
falls within the protection of Section 113(h), need not dwell on
the merits of the NEPA claim. The Court simply notes that if
recycling were outside the scope of 113(h), the proposed plan is
exactly the type of action which would come within the scope of
NEPA. The significant level of financial support expended by DOE
in furtherance of the recycling plan serves as a basis for
federal action. Foundation on Economic Trends v. Heckler,
756 F.2d 143, 155 (D.C.Cir. 1985); Indian Lookout Alliance v.
Volpe, 484 F.2d 11 (8th Cir. 1973). Furthermore, the level of
governmental involvement and the granting of discretion to BNFL
provide ample additional support for concluding that the proposed
plan constitutes a major federal action. Scientists' Institute
for Public Info., Inc. v. Atomic Energy Comm'n, 481 F.2d 1079
(D.C.Cir. 1973); Defenders of Wildlife v. Andrus, 627 F.2d 1238
(D.C.Cir. 1980); and Sierra Club v. Penfold, 857 F.2d 1307,
1312-13 (9th Cir. 1988).
The amount of controversy this matter has engendered, along
with the precedential value of the recycling plan, is ample
evidence that the proposed recycling
significantly affects the quality of the human environment. In
the absence of Section 113(h), an EIS would clearly be mandated
Plaintiffs and Intervenors here sought to bring a NEPA
challenge to a proposed recycling plan entered into between DOE
and BNFL. Because the recycling plan comes within the boundaries
of a CERCLA cleanup action, however, the Court lacks
subject-matter jurisdiction over the claim pursuant to
42 U.S.C. § 9613(h). Accordingly, Plaintiffs' Motion for Summary Judgment
is denied; Intervenors' Motion for Summary Judgment is
denied; DOE's Motion for Summary Judgment is granted; and
BNFL's Motion for Summary Judgment is granted. Plaintiffs'
Motion for Preliminary Injunction is further denied as moot.
All claims are hereby disposed of. A separate Order will issue
with this Memorandum Opinion.