UNITED STATES COURT OF APPEALS FOR THE D.C. CIRCUIT


OIL CHEM & ATOMIC

v.

RICHARDSON, BILL


99-5295a

D.C. Cir. 2000


*	*	*


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


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


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 


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 


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.