ELR Citation: ELR 21354
No(s). 92-2275 (10th Cir. Aug 18, 1994)

The court holds that §6001 of the Resource Conservation and Recovery Act waives federal sovereign immunity from certain state-imposed permit conditions that address the presence of radionuclides in hazardous waste the federal government incinerates at the Los Alamos National Laboratory (LANL) in New Mexico. The LANL uses its incinerator to burn both hazardous and radioactive wastes. The court first holds that §6001's mandate that the federal government comply with state requirements in the disposal of hazardous waste subjects the federal government to procedural as well as substantive requirements. The court next holds that permit conditions requiring the LANL to survey waste to determine its radioactive content, monitor emissions from hazardous waste burns for radioactivity, and discontinue any burn for which radioactive emissions reach a certain level, all implement legal standards established by New Mexico. In particular, they serve to implement the state requirement that only permitted hazardous waste be disposed of under a hazardous waste permit. The conditions calling for continuous radioactivity monitoring are necessary to ensure that only hazardous, and not radioactive, waste is being burned. Further, given the dual role of the incinerator, merely surveying waste before it is burned is not sufficient. The court next holds that the permit condition requiring that radioactive emissions during a hazardous waste burn not exceed the background by 10 percent for more than one minute is a reasonable means for the state to ensure that there is no more than a de minimis level of radioactive material in the hazardous waste burn, and it is not a meaningless and unworkable standard. The LANL may measure "background" radiation while the incinerator is operating but no waste has been introduced.

Counsel for Plaintiff
J. Carol Williams
Environment and Natural Resources Division
U.S. Department of Justice, Washington DC 20530
(202) 514-2000

Counsel for Defendants
Susan M. McMichael, Ass't Attorney General
Attorney General's Office
Bataan Bldg., P.O. Box 1508, Santa Fe NM 87501
(505) 827-6000

Before Anderson and McKay, JJ.: