Kasza

Opinion by Judge RYMER; Concurrence by Judge TASHIMA.

Former workers at a classified facility operated by the United States Air Force 1 brought citizen suits under the Resource Conservation and Recovery Act of 1976 (RCRA), 42 U.S.C. § 6972 , against the Air Force (Frost v. Perry) and the Environmental Protection Agency (Kasza v. Browner), alleging RCRA violations and seeking to compel compliance with hazardous waste inventory, inspection, and disclosure responsibilities. 2 Finding that the state secrets privilege invoked by the Secretary of the Air Force made discovery and trial impossible, *1163 the district court granted summary judgment in favor of the Air Force in Frost. Frost v. Perry, 161 F.R.D. 434 (D.Nev.1995); Frost v. Perry, 919 F.Supp. 1459 (D.Nev.1996). It dismissed Kasza as moot, since inventory and inspection activities were carried out after the action was filed, and the President exempted the operating location near Groom Lake from any hazardous waste provision that would require disclosure of classified information to any unauthorized person. Kasza v. Browner, 902 F.Supp. 1240 (D.Nev.1995). Although we will remand for further consideration of attorney’s fees and…

concurring:

I concur in all of the majority’s opinion, except Part II.B. I also concur in the judgment. I am unable, however, to concur in Part II.B because, first, it is entirely dicta, and, second, were it necessary to reach the issue, I would hold that the RCRA 1 presidential exemption preempts the common law state secrets privilege in those areas where it applies.

Part II.B addresses “Frost’s argument that the Presidential exemption provided by § 6001 preempts the state secrets privilege as to RCRA regulatory material.” This is a false claim that need not be addressed.

As the majority opinion points out, the presidential exemption exempts “the disclosure of classified information • concerning that operating location” (emphasis added), i.e., the operating location near Groom Lake. Maj. op. at 1173. What the Air- Force is withholding, purportedly under the state secrets privilege, is information in ten categories, see id. at 1168-69, that the Secretary of the Air Force says in her unclassified declaration “is validly classified ” (emphasis added). See id. at 1168-69 & App. I at ¶ 4. Thus, the Air Force is withholding exactly what the presidential exemption authorizes it to…