9507055: 7585721-20060527F-001-007-2023

09/26/95 TUE 10:00 FAX 703 693 9355 SAF/GC ©004
2
If the Kasza case were standing alone, review of the court’s order through reconsideration
and the appellate process would be the likely strategy. However, delay attendant to judicial review
poses risks to national security because of the second suit against the Air Force. The court will not
dismiss the case against the Air Force as long as there is an open question whether the inspection
report and inventory will be made public. Because the pendency of the case against the Air Force
and attendant leaks by plaintiffs have created significant national security risks, it is important that
we pursue the most protective course. We believe that course is obtaining Presidential affirmation of
the protected status of these documents while at the same time seeking legal review of the order.
The Department of Justice, which is defending both cases, and EPA agree with this recommendation.
I am advised that the court’s order is legally tenuous from several perspectives. First, there
are grounds for believing that the court interpreted the statute incorrectly. Second, the order, which
appears to require either that the Air Force declassify a document or that the President exercise his
discretion to grant an exemption, raises separation of powers concerns. Third, there is a question
whether the exemption provision, which on its face concerns the obligations of federal waste
management facilities, may properly be invoked to relieve EPA of any of its statutory obligations.
Moreover, if extended to other comparable statutory requirements and to other classified activities,
the opinion is of concern.
The decision memorandum we propose to have the President sign exempts the Air Force’s
operating location near Groom Lake from any provision of hazardous waste law tliat might require
disclosure of classified information concerning the operating location. The memorandum makes
clear that other environmental obligations are not diminished. It also reserves the question whether
the court was correct in ruling that an exemption is actually needed, which will be the subject of
further litigation. We ask that it be returned in time for EPA to be able to report to the court that it
has been granted by the October 2 deadline.
On August 30, the court decided the Kasza motion, dismissing plaintiffs’ inspection and
inventory claims as moot. After reviewing the inspection report and inventory, the court concluded
that EPA, with the Air Force’s full cooperation, “has conducted a thorough inspection of the
operating location near Groom Lake ... in full compliance with the requirements of RCRA” and that
“the Air Force is adequately providing information to EPA ... in compliance with RCRA.” The
court also found that the inspection report and inventory are properly classified and fall within the
scope of the military and state secrets privilege I invoked. Nevertheless, the court held that the
documents are subject to public disclosure under RCRA section 3007(b), 42 U.S.C. § 6927(b). The
judge recognized that disclosure would conflict with 18 U.S.C. § 793, which makes it a felony to
disclose national security information to unauthorized people, and with E.O. 12356, which provides
for tire classification of information and restricts access to classified information. He concluded,
however, that the only alternatives were (1) declassify and disclose the documents or (2) obtain a
Presidential exemption from disclosure, pursuant to section 6001(a) of RCRA, 42 U.S.C. § 6961(a),
which authorizes the President to exempt federal facilities from compliance with certain obligations
if he determines that it is “in the paramount interest of the United States” to do so. An exemption
under section 6001(a) can last for one year, subject to renewal. The court gave EPA until October 2,
1995, to report which course it would pursue.