ELR Citation: ELR 20754
No(s). 99-5295 (D.C. Cir. Jul 7, 2000)

The court affirms a district court decision dismissing labor unions' claims that the U.S. Department of Energy (DOE) violated the National Environmental Policy Act (NEPA) and the National Defense Authorization Act (NDAA) when it decontaminated and decommissioned three buildings at the nuclear weapons facility at Oak Ridge, Tennessee. The court first holds that it cannot review the unions' claims that DOE violated the NDAA by failing to provide its members continued employment and benefits after closing the facility. Under the Administrative Procedure Act, judicial review is unavailable when agency action is committed to agency discretion by law. Here, the NDAA gives DOE enormous discretion to provide employees with hiring preferences. The court next holds that it lacks jurisdiction over the unions' claims that DOE violated NEPA by failing to prepare an environmental impact statement before recycling and selling recovered metals from the nuclear weapons facility. The Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) states that no federal court shall have jurisdiction to review any CERCLA removal or remedial actions. Although recycling is not explicitly mentioned in CERCLA's definition of removal action, because recycling was the primary method of waste disposal contemplated by the parties for the facility, it was part of the removal action for purposes of CERCLA. Moreover, the contractor conducting the removal action is required to dispose of all wastes whether by recycling or otherwise.

Counsel for Appellants
Reuben A. Guttman
Provost & Umphrey
1155 15th St. NW, Ste. 410, Washington DC 20005
(202) 466-0900

Counsel for Appellees
Scott S. Harris, Ass't U.S. Attorney
U.S. Attorney's Office
5806 Judiciary Center Bldg.
555 4th St. NW, Washington DC 20001
(202) 514-7566

Before Sentelle and Henderson, JJ.