The D.C. Circuit Court of Appeals has ruled that the U.S. Department of Energy’s (DOE’s) designation of boundaries of a uranium processing facility for cleanup purposes is not judicially reviewable under the Uranium Mill Tailings Remediation and Control Act (the Act). El Paso Natural Gas Co. v. United States, No. 10-5080 (D.C. Cir. 1/28/11).
Enacted in 1978, the Act directed DOE, in cooperation with states and Native American tribes, to undertake remedial action of all sites contaminated by uranium “produced for sale to any federal agency prior to January 1, 1971, under a contract with any federal agency.” It also directed DOE to designate 22 listed sites, as well as any “other processing sites within the [U.S.] which [the Secretary] determine[d] require[d] remedial action . . . .” Section 7912(d) of the Act provides that “[t]he designations made, and priorities established by the Secretary under this section shall be final and not subject to judicial review.”
El Paso Natural Gas Co., the successor to the company that ran a site listed under the Act, sued DOE and several other federal agencies seeking the cleanup of two other contaminated properties near the listed site. The complaint sought a court order declaring that DOE had failed to adhere to its legal obligation and that the agency was liable under the Act for cleaning up the two nearby properties. Citing section 7912(d) of the Act, the court dismissed the complaint, ruling that the law banned judicial review of boundary designations established by DOE.