Oрinion for the Court filed by Circuit Judge STEPHEN F. WILLIAMS.
In 1997 the Department of Energy (“DOE”) contracted to decontaminate and decommission three buildings at its nuclear weapons facility in Oak Ridge, Tennessee. The Oil, Chemical and Atomic Workers International 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 disregarded.) OCAW’s theories are twofold. First, it claims that DOE and its contractors violated § 3161 of the National Defense Authorization Act for Fiscal Year 1993, 42 U.S.C. § 7274h, which it reads as requiring DOE to provide its members continued emplоyment and employment benefits after the implementation of a major workforce restructuring. Second, it argues that under § 102(2)(e) of the National Environmental Policy Act (“NEPA”), 42 U.S.C. § 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. Peña,
On the § 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 whiсh to judge any such agency nonenforcement, we find the claim barred by the preclusion of review in 6 U.S.C. § 701(a)(2). See
Heckler v. Chaney,
For many years the Oak Ridge Reservation was used to enrich uranium for nuclear weapons and nuclear power generation. In 1989 EPA placed it on the National Priority List of contaminated sites.
OCAW II,
After determining that a large reduction in workforce would result from closing the facility, DOE undertook workforce restructuring efforts. Section 3161 of the National Defense Authorization Act for Fiscal Year 1993, 42 U.S.C. § 7274h, requires that when “a change in the workforce at a defense nuclear facility is necessary, the Seсretary of Energy ... shall develop a plan for restructuring the workforce for the defense nuclear facility.” DOE’s initial workforce restructuring plan (“WRP”), which was finalized on November 29, 1995, mimicked § 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 alsо provided for medical benefits, outplacement assistance, relocation assistance, training programs, and education assistance. Id. at 4-1 to 5-2.
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 projeсt would be hired. The PLA incorporated the hiring preference embodied in the WRP: “[T]he Union shall recognize and select qualified applicants for referral in accordance with Section 3161 ... and/оr 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 § 3161. claim is barred by § 701(a)(2) of the Administrative Procedure Act (“APA”). (As such preclusion is jurisdictional,
Claybrook v. Slater,
In view of OCAW’s present exclusive focus on enforcement of the BNFL con
*1382
tract, we need not finally resolve whether for every cоntext 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 incorporated the further mandates of § 3161. DOE then delegated the statutory requirements in its contract with BNFL, which were in turn subdelegated in part to Building Trades. Because DOE satisfied its requirement to develop a рlan, OCAW can now complain only of inadequate contract enforcement. It thereby brings its cause squarely within
Heckler v. Chaney’s,
presumption of unre-viewability for enforcement decisions: “[A]n agency’s decision not to prosecute or enforce, whether through civil or criminal process, is a decision generally committed to an agency’s absolute discretion.”
Although
Chaney
did not explicitly address contract enforcement, 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,
We thus turn to the NEPA claim. CERCLA § 113(h), 42 U.S.C. § 9613(h), says that “[n]o Federal court shall have jurisdiction under Federal law ... to review any challenges to rеmoval or remedial action selected under section [104] of this title, or to review any order issued under section [106] of this title.” Although § 113(h) is subject to limited exceptions— e.g., for recovery of “response costs or damages or for contribution,” 42 U.S.C. § 9613(h)(1), and for reimbursement of costs in response to a remedial order that was arbitrary and capricious,
id.
§ 9613(h)(3) — it otherwise effectuates a “blunt withdrawal of federal jurisdiсtion,”
North Shore Gas Co. v. EPA,
The government here says that the cleanup plan constitutes a “removal” action as the term is used in § 113(h). This is defined in 42 U.S.C. § 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 disposal of removed material, оr 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 environment....
OCAW correctly points out that recycling is nоt explicitly mentioned here, though it is in the definition of “remedial action.” 42 U.S.C. § 9601(24). But we agree with the district court that the broader language of § 9601(23), “disposal of removed material,” is properly understood to encompass disposals that take the *1383 form of recycling. OCAW II, 62 F.Supp.2d at 6 n.5. Moreover, because “remedial actions” are also protected by § 113(h), OCAW’s argument would prove pointless here, unless, for some unmentioned reason, DOE’s having said “removal” when it should have said “remedial action” were fatal to its invocation of § 113(h).
OCAW challenges the applicability of § 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 alternatives 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 recyсling was the “primary method of waste disposal” contemplated by the parties, it was part of the “removal action” for purposes of § 113(h).
OCAW II,
The second argument alone is decisive. As both options under the plan qualified as actions sheltered by § 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 § 113(h). OCAW’s claims here are insubstantial.
The judgment of the district court is
Affirmed.