Oil, Chemical & Atomic Workers Int'L Union v. Peña, Civ. A. No. 97-1926.

• Citation: 18 F.Supp.2d 6
• Decision Date: 03 June 1998
• Docket Number: Civ. A. No. 97-1926.
• Parties: OIL, CHEMICAL & ATOMIC WORKERS INT'L UNION, AFL-CIO, et al., Plaintiffs, v. Federico PEÑA, Secretary of Energy and United States Department of Energy, et al., Defendants.
• Court: U.S. District Court — District of Columbia

18 F.Supp.2d 6

OIL, CHEMICAL & ATOMIC WORKERS INT'L UNION, AFL-CIO, et al., Plaintiffs, v. Federico PEÑA, Secretary of Energy and United States Department of Energy, et al., Defendants.

Civ. A. No. 97-1926.

United States District Court, District of Columbia.

June 3, 1998.

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Reuben A. Guttman, Provost Umphrey LLP, Washington, DC.

Kathleen Hostetler, General Counsel, Oil, Chemical & Atomic Workers Int'l Union, AFL-CIO, Lakewood, CO.

Brian McCafferty, Provost Umphrey LLP, Norristown, PA.

Barbara A. Finamore, Natural Resources Defense Council, Inc., Washington, DC.

Eric Fygi, Acting General Counsel, Washington, DC.

Scott S. Harris, U.S. Attorney's Office, Washington, DC.

Frank Casey/Kathy B. Houlihan, Morgan, Lewis & Bockius LLP, Washington, DC.

Michael Lempres, Pamela Bresnahan, Steven Becker, Vorys, Sater, Seymour & Pease, Washington, DC.

Jeffrey Hummel, Seyfarth, Shaw, Fairweather & Geraldson, Washington, DC.

Terry R. Yellig, Sherman, Dunn, Cohen, Leifer & Yellig, Washington, DC.

MEMORANDUM OPINION

KESSLER, District Judge.

The Department of Energy ("DOE") and several of its contractors have undertaken the cleanup of a hazardous waste site at the Oak Ridge Reservation ("ORR") in Oak Ridge, Tennessee. ORR was for many years used for nuclear weapons research and development. Plaintiffs Oil, Chemical & Atomic Workers International Union, AFL-CIO ("OCAW"), OCAW Local 3-288, and several individual OCAW members (collectively "OCAW Plaintiffs" or "Plaintiffs") allege that the cleanup, or decontamination and decommissioning ("D & D"), should not proceed until the Defendants have promulgated an Environmental Impact Statement ("EIS"), which the Plaintiffs claim is required by the National Environmental Policy Act, 42 U.S.C. § 4332(2)(C) ("NEPA"). Plaintiffs also allege that the second phase of the project, the recycling and sale of recovered scrap metal, should not proceed until the DOE has issued an EIS to determine the environmental impact of that portion of the cleanup activities.

Plaintiff-Intervenors Natural Resources Defense Council ("NRDC"), Oak Ridge Environmental Peace Alliance, the Coalition for a Healthy Environment, and the Nuclear Information and Resource Service (collectively "NRDC Plaintiff-Intervenors" or "Plaintiff-Intervenors") present a narrower claim, namely that only a portion of the cleanup activities — the proposed recycling and resale of materials recovered from the site — is covered by NEPA and therefore should not proceed absent an EIS.

The OCAW Plaintiffs also allege that, since the cleanup activities at ORR require a major workforce restructuring, the DOE and its contractors are required to comply with the requirements of Section 3161 of the National Defense Authorization Act for Fiscal Year 1993, 42 U.S.C. § 7274h ("Section 3161"). Plaintiffs allege that DOE and its contractors have failed to fulfill various Section 3161 obligations.

This matter is now before the Court on the Defendants' Motions to Dismiss Plaintiffs' and Plaintiff-Intervenors' Amended Complaints and Defendant Community Reuse Organization of East Tennessee's ("CROET") Motion to Change Venue and Motion to Sever the Claims Against It.

Upon consideration of the Motions, Oppositions, Replies, Surreplies, the arguments made at the Motions hearing, and the entire record contained herein, the Federal Defendant's Motion to Dismiss Plaintiffs' Amended Complaint [# 54] is granted in part and denied in part; Defendant British Nuclear Fuels, Inc.'s ("BNFL") Motion to Dismiss Plaintiffs' Amended Complaint [# 18] is granted in part and denied in part; Defendant CROET's Motion to Dismiss Plaintiffs' Amended Complaint [# 39] is granted;¹ Defendant CROET's Motion to Change Venue [# 39] is denied as moot; Defendant CROET's Motion to Sever the Claims Against It [# 64] is denied as moot; the Motion to Dismiss Plaintiffs' Amended Complaint [# 61] of Defendant-Intervenor Building and Construction Trades Department, AFL-CIO and the Knoxville Building and Construction Trades Council, AFL-CIO (collectively "Building Trades") is granted in part and denied in part;² Defendant BNFL's Motion to Dismiss NRDC Plaintiff-Intervenors' Amended Complaint [# 80] is denied; the Federal Defendant's Motion to Dismiss NRDC Plaintiff-Intervenors' Amended Complaint [# 81] is denied; and the Building Trades' Motion to Dismiss NRDC Plaintiff-Intervenors' Amended Complaint [# 81] is denied.

I. Background³

Plaintiff OCAW represents approximately 6,000 employees who work at DOE nuclear defense facilities. It is a national representative of collective bargaining units within the meaning of 42 U.S.C. § 7274h(b). Plaintiff OCAW Local 3-288 represents employees and former employees of the ORR facility who have worked for, inter alia, the management and operations contractor, Lockheed-Martin Energy Systems ("LMES"). Other OCAW Plaintiffs include employees and former employees at ORR.

A. Section 3161 Claims

1. Workforce Restructuring at ORR

Whenever a change in the workforce at a defense nuclear facility is deemed necessary, Section 3161 directs the Secretary of Energy ("Secretary") to promulgate a workforce restructuring plan ("WRP") and thereafter issue an updated plan annually. 42 U.S.C. § 7274h(e). The OCAW Plaintiffs argue that, since the cleanup activities at ORR require a major workforce restructuring, DOE and its contractors are required to comply with the requirements of Section 3161.

Section 3161 requires the Secretary to be "guided" by certain "objectives" when preparing the initial WRP. These "objectives" include providing terminated employees with hiring preferences "to the extent practicable". Id. at § 7274h(c). They also include providing retraining for those employees, also "to the extent practicable". Id. The statute requires the Secretary to consult with various groups in developing and updating the WRP, submit the WRP to Congress, and "work on an ongoing basis with representatives of the Department of Labor, workforce bargaining units, and States and local communities in carrying out a plan". Id. at §§ 7274h(b), (d) & (f).

The OCAW Plaintiffs allege that the DOE and its contractors have failed to comply with the requirements of Section 3161. Their primary concern is that the DOE and its contractors and subcontractors have failed to sufficiently provide for the continued employment and employment benefits of OCAW members.

Plaintiffs complain that DOE has improperly delegated to BNFL the DOE's Section 3161 obligation to implement a job preference for displaced ORR employees. They allege that this delegation is unlawful and violates their rights under Section 3161.

Plaintiffs claim that, even if BNFL does hire the individuals encompassed by the Amended Complaint, no plan exists to mitigate the impact of its D & D effort on the continuity of employees' pensions, benefits, and retiree health care.

B. Environmental Claims

1. Statutory and Regulatory Background

The Comprehensive Environmental Response, Compensation, and Liability Act of 1980, Pub.L. No. 96-510, 94 Stat. 2767 ("CERCLA"), as amended by the Superfund Amendments and Reauthorization Act of 1986, 42 U.S.C. §§ 9601-75 (1988), was enacted to ensure the efficient cleanup of sites contaminated with hazardous wastes and other pollutants. CERCLA gives the federal government the power to either clean up a site and sue responsible parties for reimbursement (Section 104) or force a responsible party itself to undertake the cleanup (Section 106). Cleanup activities under CERCLA are generally referred to as "response" actions and are one of two types: a "removal action", which is a short-term remedy designed to minimize and mitigate immediate harm, or a "remedial action", which is intended to provide a permanent solution to remedy the threatened release of a hazardous substance. 42 U.S.C. §§ 9601(23) and 9601(24).

The President, pursuant to § 115 of CERCLA, has delegated to the Secretary of Energy certain CERCLA response authority for facilities under DOE jurisdiction, custody, or control. Before response action planning begins, the Environmental Protection Agency ("EPA") must assess the site. The EPA places sites on a National Priorities List ("NPL") of federal facilities included in the Federal Agency Hazardous Waste Compliance Docket according to their rank among other CERCLA sites in terms of potential threat to health and the environment. 42 U.S.C. § 9605. The EPA placed ORR on the NPL in November 1989. (Peña Mot. to Dismiss at 11, citing 54 Fed.Reg. 48184.)

Once a site is placed on the NPL, CERCLA and the National Oil and Hazardous Substances Pollution Contingency Plan ("NCP"), 40 C.F.R. Part 300 (1996), impose various requirements that govern the course of any remedial work performed at the site.

In accordance with the requirements of CERCLA Section 120, the Environmental Protection Agency ("EPA"), DOE, and the Tennessee Department of Environment and Conservation ("TDEC") entered into a Federal Facilities Agreement ("FFA") for ORR. The FFA provides a comprehensive framework for remediating the environmental impact of past and present activities at ORR. (Ex. 3, Peña Mot. to Dismiss, Halsey Decl. ¶ 3, Att. A, "Federal Facility Agreement Under Section 120 of CERCLA and Sections 3008(h) and 6001 of RCRA" [hereinafter "FFA at ___"].)

The NCP, 40 C.F.R. Part 300 (1996), establishes procedures and criteria to be used in assessing remedial alternatives. 42 U.S.C. § 9605. Where a "non-time critical removal action"⁴ may be appropriate, the NCP requires the agency to prepare an Engineering Evaluation/Cost Analysis ("EE/CA") to assess the proposed action and alternatives. 40 C.F.R. 300.415(b)(4).

2. Planned Cleanup Activities at ORR

The DOE, with the concurrence of the EPA and TDEC, issued an Engineering Evaluation/Cost Analysis ("EE/CA") in July 1997 that compared and analyzed three alternatives for addressing contamination in...