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MITZELFELT v. DEPARTMENT OF AIR FORCE

No. 89-2223.

903 F.2d 1293 (1990)

Richard MITZELFELT, Director of the Environmental Improvement Division of the New Mexico Health and Environment Department, Plaintiff-Appellant, v. DEPARTMENT OF AIR FORCE, Defendant-Appellee. Colorado, Texas, Kentucky, Washington, Missouri, Indiana, Michigan, Nebraska, Wyoming, Louisiana, Kansas, Hawaii, Minnesota, Arizona, Maine, Illinois, Utah, California, Montana, New Hampshire, New Jersey and Ohio, Amicus Curiae.

United States Court of Appeals, Tenth Circuit.

May 21, 1990.

Attorney(s) appearing for the Case

Felicia L. Orth, Sp. Asst. Atty. Gen., Office of General Counsel, Health and Environment Department, Santa Fe, New Mexico, for plaintiff-appellant.

Jeffrey P. Kehne, Attorney, Land & Natural Resources Div., U.S. Dept. of Justice, Washington, D.C. (Lt. Colonel Richard B. Lotz, of counsel, Headquarters USAF/JACE, Bolling Air Force Base, Washington, D.C., Richard B. Stewart, Asst. Atty. Gen., David J. Kaplan and Jacques B. Gelin, Attorneys, Land & Natural Resources Div., U.S. Dept. of Justice, Washington, D.C., with him on the brief), for defendant-appellee.

Duane Woodard, Atty. Gen., Charles B. Howe, Deputy Atty. Gen., Richard H. Forman, Sol. Gen., and Michael R. Hope, Deputy Atty. Gen., CERCLA Section, Denver, Colo., on the brief for amici curiae.

Before ANDERSON, EBEL, Circuit Judges, and BROWN, District Judge.

STEPHEN H. ANDERSON, Circuit Judge.

The sole issue in this appeal is whether section 6001 of the Resource Conservation and Recovery Act of 1976 ("RCRA"), 42 U.S.C. § 6961, waives all federal sovereign immunity from state civil penalties. We hold that it does not.

This case arose when the State of New Mexico notified the United States Air Force that Cannon Air Force Base was violating the State's hazardous waste laws. After all but one of the violations...

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