*1 al. v. ENVIRONMENTAL CHICAGO CITY OF et FUND DEFENSE et al. 2, 1994 May January 1994 Decided Argued

No. 92-1639. *2 Court, Rehnquist, in. which Scalia, J., opinion delivered the Ginsburg, JJ., Kennedy, Souter, Thomas, Blackmun, and J.,C. and O’Connor, J., J., in which Stevens, dissenting opinion, filed a joined. 340. joined, post, p. Lawrence Rosenthal for the cause petitioners. argued Benna, Ruth Sher, S. were Susan on the briefs

With him Nereim. Solomon, Mardell and

Jeffrey Minear R for the United States the cause argued brief curiae him on the as amicus With reversal. urging Attorney Acting Days, Assistant General were Solicitor Wallace, David Deputy General Flint, Solicitor General Yamada, H. Thurston, Gerald Shilton, M. Alice C. Lisa Friedman. K. Lazarus for

Richard J. filed a brief the cause and argued respondents.* of New were filed for the State reversal urging of amici curiae *Briefs Boone, General, Gen- Abrams, Jerry Solicitor Attorney

York by Robert General, Sevinsky A eral, and James Schiff, Solicitor Deputy Peter H. General; Morrison, for Barron Attorneys Liston Assistant and Kathleen Rothal, Sunderland, Pamela Wisconsin, Max Philip et G. County, by al. Wein, Akin, Charles Nunn, Perry, J. Cynthea O. L. Howard Stephen K. Bobzien, Anne Pirich, King, Mary P. Felshaw H. John D. David Younger, Balkin, Boulden, Wood, Gillin, T. X. Ruth Patrick F. C. Michael by al. S. Craig et City Spokane, Washington, for Barry Shanoff; S. Westchester, York, Carol L. Van Trueblood; New County for Ruda, David et al. Richard League Cities Scoyoc; for National et Berz, Hird; Foundation Washington Legal for R. David B. delivered the of the Court. opinion Scalia Justice 3001(i) whether, are called to decide We upon pursuant (Resource Act of the Solid Waste Conservation and Disposal (RCRA)), as added, 3252, Act of 1976 98 Stat. Recovery §6921(i), C. the ash a resource recov- U. S. generated by incineration of solid waste is facility’s municipal ery hazardous waste under as a Subtitle C of RCRA.

I has owned and Since city Chicago petitioner op- incinerator, the Northwest erated a Waste-to- municipal *3 waste and that burns solid recovers Energy Facility, energy, (MWC) a residue of combustion ash. municipal leaving 350,000 tons of burns solid waste The facility approximately is both within and that used the each energy year produces The to other entities. has of and sold city disposed facility 140,000 110,000 to tons of MWC ash combustion the residue — to that are not licensed hazard- landfills accept year per —at ous wastes. (EDF) Defense Fund Environmental 1988,

In respondent the of filed a city Chicago complaint against petitioners, RCRA, of 42 suit its under the citizen provisions mayor, 6972, were violating provisions U. S. C. they alleging issued the and of by of RCRA regulations implementing (EPA). al- Environmental Protection Respondent Agency was toxic that the ash by MWC generated leged waste” under EPA’s to a “hazardous regu- as enough qualify (1993). that, It was uncontested lations, 40 CFR pt. had not adhered to ash, to the with respect petitioners C, of RCRA of the of Subtitle portion requirements Petitioners contended that hazardous wastes. addressing Olson; Kamenar, Kurt J. D. and for Popeo, Daniel J. Paul al. Himmelman, al. Harold David M. Inc., Wheelabrator et Technologies Friedland, and Mark P. Paul. §6921(i), §3001(i), ash the MWC excluded C. U. S. RCRA agreed with requirements. District Court The those from Inc. v. Fund, Environmental contention, see Defense (1989), subsequently Supp. Chicago, 419, 727 F. summary judgment. petitioners’ granted motion for concluding “ash Appeals that the reversed, The Court municipal re- resource generated the incinerators regulation as a hazardous waste covery facilities Environmental of RCRA.” C under Subtitle Defense 1991). (CA7 Chicago, 345, 352 2d 948 F. Fund, Inc. v. certiorari, and we invited city petitioned a writ of for present of the United States. the views General Solicitor Fund, Inc., 504 Chicago U. S. Environmental v. Defense (1992). that invitation was September 1992, while On issued a memoran- outstanding, EPA the Administrator directing ac- Regional Administrators, them, in EPA dum to §3001(i), agency’s to treat MWC view with cordance under Sub- from hazardous ash city’spetition, granted the we Thereafter, title of RCRA. C case to the Court and remanded decision, vacated the consideration Appeals for further Circuit for Seventh Chicago Environmental light v. memorandum. (1992). Fund, 506 S. 982 U. Defense previous Appeals its reinstated remand, Court On plain language holding opinion, the statute’s that, because *4 dispositive, not affect its anal- did the EPA memorandum is 1993). (CA7 ysis. Petitioners filed a 303, 2d 304 985 F. granted. petition we 509 U. S. certiorari, which for writ (1993). 903

II comprehensive statute that em- a environmental RCRA regulate powers from cradle to wastes EPA to hazardous rigorous safeguards grave, and waste in accordance with the §§6921- procedures management C, 42 S. C. of Subtitle U. (Nonhazardous regulated more wastes are much 6934. 6941-6949.) §§ loosely 42 Under D, under Subtitle U. S. C. 332 C, EPA has promulgated of Subtitle relevant provisions and trans- waste hazardous generators

standards governing and owners and 6923, op- §§ and 42 6922 see U. S. C. porters, treatment, and disposal storage, hazardous erators of § EPA has 6922, Pursuant to § see 6924. (TSDF’s), facilities with han- to comply hazardous generators directed and monitoring requirements, storage, dling, recordkeeping, (1993). to TSDF’s, however, are subject see 40 CFR pt. than either generators more much stringent see 4- process, a to including 5-year permitting transporters, (1993); Environmental §6925; 40 CFR U. S. pt. 42 U. S. C. Waste and Re- Emergency Protection Office Solid Agency Pro- Waste Management The Nation’s Hazardous sponse, Crossroads, Study at a RCRA Implementation gram financial assurance 1990), require- 49-50 burdensome (July standards, and, and location ments, perhaps stringent design to take corrective action all, most onerous of responsibility safe clo- hazardous substances and to ensure for releases of § 6924; see 42 40 CFR pt. sure of each U. S. C. facility, (1993). is one corrective action requirement “[The] work dili- reasons that generators transporters major wastes so as to avoid the need to to their gently manage 3 Environmental obtain interim status or TSD permit.” (M. 1993) (here- § Law Practice Gerrard ed. 29.06[3][d] Guide Guide). inafter Practice does not which wastes are hazardous identify

RCRA therefore C it leaves that regulation; Subtitle 6921(a). § When EPA’s EPA. U. S. C. designation hazardous waste for solid wastes designations appeared 1980, 33084, contained certain ex- see Fed. Reg. they for from normal an exclusion including ceptions coverage, “household defined as waste material de- waste,” . . . “any rived from households resi- single (including multiple motels),” id., dences, hotels and codified as amended 261.4(b)(1) (1993). at 40 CFR most household Although harmless, waste is a small fluids portion cleaning —such *5 qualified as hazardous waste. have batteries —would and “[h]ousehold declared, however, waste, that regulation The collected, trans- including that been waste has household (e.g., disposed, refuse- ported, treated, recovered stored, fuel) waste. Ibid. reused” is not hazardous derived regulations that preamble stated to the Moreover, (e.g. remaining incineration, ther- after treatment “residues treatment) regu- waste] [of not household are mal By Reg. rea- 45 Fed. 33099. hazardous waste.” as a lation only provisions, incinerator burned an these son of TSDF, a be considered Subtitle C would not household) (i. only waste, e., processed nonhazardous it since generator a C be considered Subtitle would not dispose its ash in be free to would waste and hazardous D landfill. a Subtitle provided as a what is known regulations thus

The 1980 ibid., e., i. exemption waste, for household stream” “waste genera- category covering waste from exemption an through disposal of residues. to final tion treatment from Sub- MWC ash not, however, did produced the ash coverage if the incinerator that title C anything waste, such as in addition to household burned facility industrial petitioners’ burns: nonhazardous what qualify as petitioners’ a like would Thus, waste. generator if the ash it MWC Subtitle C hazardous §§ sufficiently produced 261.3, see 261.24 toxic, was 40 CFR (1993) though qualify it would still a Subtitle C — be since all the waste it took in would characterized TSDF, (An though hazardous, can be even as nonhazardous. ash generated product not, which it is because are medium the contaminants more concentrated new readily 261.24, leachable, §§261.3, see CFR more (1993).) pt. App. 261, II Congress years regulations issued, these were

Four after and Solid Amendments enacted Hazardous Waste 98-616, 98 which added to RCRA 3221, Pub. L. Stat. *6 Waste Exclusion” as 3001(i), § the of Household “Clarification § task case is 223, 3252. The essence our this Stat. that ash whether, to determine under MWC provision, that would have facility facility by petitioners’ generated —a a Subtitle C under been considered generator regu- as hazardous waste under lations —is subject regulation it that is. We conclude Subtitle C. 6921(i), 3001(i), 42 entitled “Clarification U. S. C.

Section exclusion,” provides: “A resource facility recovering recovery energy waste shall not be solid the mass burning municipal of, other- or to be storing, deemed treating, disposing for the wastes hazardous purposes wise managing if— under this subchapter, regulation “(1) such facility—

“(A) and burns only— receives (from

“(i) dwell- and multiple household waste single sources), and hotels, and other residential motels, ings, “(ii) or industrial from commercial solid waste waste identified that does not contain hazardous sources section, or under this listed or “(B) wastes identified hazardous does accept section, under this listed

“(2) has estab- owner or such facility operator or other lished contractual appropriate requirements that haz- notification or to assure procedures inspection received burned in such wastes are not at or ardous facility.” so as a this is that meaning long plain language recovers incineration

facility energy by appropriate (the facility) it wastes, C is not to Subtitle haz- stores, of, that treats, disposes manages facility does not contain ardous waste. The provision quite clearly exclusion for the ash Indeed, the waste the facil- itself receives) (as is to that which it not even ity produces opposed for petition- no express support There thus mentioned. exemption.1 óf a waste-stream ers’ claim effect of however, contend, practical Petitioners virtue of the ash is to statutory language is not If, argue, they facility. exempting of hazardous or disposing be storing, treating, deemed of must stores, or treats, disposes the ash waste, then *7 There are several prob- be considered nonhazardous. itself we the First, as have explained, this argument. lems with is for terms the statute the of by exemption provided only ash, not the “shall not be It is that facility, the the facility. Un- under Subtitle C. to be to subject regulation deemed” in which had.been to 1980 regulations, like the the preamble §3001(i) enacted, was four the time years for by existence §3001(i) ash does not MWC generated explicitly as a hazardous a from recovery resource facility the statute’s difference, In of given that light waste. is that ... that policy “[w]aste declaration of national express or of so as to stored, treated, should be disposed generated health and threat to human the and future minimize present 6902(b), § cannot interpret C. we environment,” the U. S. toxic to qualify ash sufficiently the statute MWC permit landfills. to be of ordinary as hazardous disposed observed, statutory the the Moreover, as Court of Appeals the as in its capacity facility does not even exempt language provision exempting the ash itself is able to the The dissent describe ellipsis: called use only by resorting might imaginative to what be disposed hazard- though being the treated and of contains “even material treatment[,] before, that material components diming, after its ous Post, at 346. In the full ‘shall not be deemed to . . hazardous.’” be . above, . . text, phrase be deemed . quoted “shall not recovery facility, and the hazardous” is not but the resource material, (italicized) ellipsis, “shall not be complete phrase, including reads of, managing haz- treating, storing, disposing or otherwise deemed to be ardous wastes.” facility engaged to be in these activities Deeming a not quite deeming respect with is of course different hazardous wastes output facility of that not to be hazardous. generator of hazardous waste. RCRA defines “genera- “the act or hazardous waste.” tion” as process producing 6903(6). § There can be no question C. U. S. creation of ash constitutes by incinerating municipal course, hazardous waste (assuming, “generation” as hazardous under 42 U. S. 6921 and the ash G. qualifies (1993)). 40 CFR Yet pt. its implementing regulations, §3001(i) that the “shall states although exempted of, be be deemed to otherwise treating, storing, disposing wastes,” hazardous omits from the significantly managing the word Petitioners that because “generating.” say catalog the activities listed as the full exempt encompass scope the failure to facility’s mention the operation, activity But the statute insignificant. itself refutes generating §3001(i)— this. Each of three terms used in specific of”—is de- “treating,” “storing,” “disposing separately RCRA, fined and none covers the of hazardous production (“otherwise waste.2 The fourth and less term specific man- defined, “collection, is also to mean source aging”) separa- *8 tion, storage, treatment, recov- transportation, processing, 42 ery, disposal,” §6903(7) -just U. S. C. about every — except hazardous waste-related activity generation. We 2 “any method, technique, “Treatment” process, including means or neu- tralization, designed chemical, change physical, to or biological charac- composition any ter or of hazardous waste so as to neutralize such waste nonhazardous, or so as to render such transport, safer for amenable recovery, for storage, amenable for or reduced in volume. Such term in- any activity processing designed cludes or change physical to form or composition chemical of hazardous waste so as to render it nonhazardous.” §6903(34). 42 U. S. C. “Storage” means waste, “the containment of hazardous either on a tem-

porary period years, basis or for a in of such a manner as not to constitute disposal §6903(33). of such hazardous waste.”

“Disposal” deposit, means “the discharge, injection, dumping, spilling, leaking, placing any of solid waste any or hazardous waste into or on land or water so that such any solid waste or hazardous waste or constit- may uent thereof enter the environment or be emitted into the air or discharged §6903(3). into waters.” carefully constructed text it follows from the think §3001(i) recovery facility’s manage- that while a resource regulation, its are excluded from Subtitle C ment activities generation toxic ash not. §3001(i), history legislative appeal to the

Petitioners Report, the in state- includes, which the Senate Committee management “[a]ll activities of such a fa- ment that transportation, including generation, cility, treatment, storage disposal exclu- shall be covered of waste (1983) added). (emphasis p. Rep. 98-284, No. sion.” S. Report, which statute, and not the Committee But it is the expression law, and the statute is the authoritative generation. prominently omits reference to As Court rely upon cogently put “Why Appeals we, then, it: should report single in a committee that did not result word Simply put, legislation? 2d, at 351.3 we shouldn’t.” F. they point activity which “treat” Petitioners out that activity by they very municipal which waste is the same “generate” But there is ash, wit, MWC to incineration. activity’s being exempt nothing extraordinary about an for purposes nonexempt The incineration for others. some regula- regulation, but here is from TSDF (As generation. noted, we have see tion as hazardous waste onerous.) supra, less the latter is much 331-332, §3001(i) by comparing interpretation is confirmed Our statutory Super- exemption in In the with another RCRA. Act of 1986, fund Amendments and Reauthorization Pub. 124(b), § Congress 99-499, amended L. Stat. operator provide U. C. 6921 to that an “owner and S. equipment methane from a landfill shall not used recover managing, generating, transporting, treat- be deemed to be *9 ing, storing, disposing liquid or within of hazardous wastes §3001(i)’s Nothing lengthier in the dissent’s somewhat discourse on post, 343-345, legislative history, see convinces us that the statute’s “generation” omission of the term is a error. scrivener’s provision, in contrast to meaning This C. of” Subtitle including exemption §3001(i), complete provides “[I]t is covered activities. “generating” in its list of term intentionally Congress presumed acts generally that language particular in one sec- purposely” when it “includes Corp. Keene v. another,” it in but omits of a statute tion (internal (1993) quotation States, S.U. United omitted). provi- respondents agree this that with We marks Congress to draft a waste stream knew how sion “shows Brief for exemption it wanted to.” Re- when RCRA spondents 18. §3001(i) interpretation of our contend that

Petitioners “empty gesture,” provision Brief for into an turns the pre-existing regime 23, since even under Petitioners burning nonhazardous waste and household an incinerator exempt from the Subtitle C TSDF waste was industrial §3001(i) provisions. not extend the waste-stream If did product exemption household/ of such a combined to the facility, argue, petitioners treatment nonhazardous-industrial codify nothing nothing a house- it is not at all. But did exemption previously been that had hold waste nothing (though petitioners may agency is it revision; nor exemption nothing) to restrict the value it as less than provision agency previously provided is what the —which withholding exemption all waste-stream achieved, here recovery processed by facilities, even for for waste resource exclusively passing through an the waste stream facility.4 validity express opinion no as to the of EPA’s household We recovery effective applied to resource facilities before §3001(i). Furthermore, question date of since the statute in addresses facilities, only recovery general, not household waste in we are resource concerning validity regula- of EPA’s unable to reach conclusions scheme for household wastes tory processed by recovery resource facilities. *10 our contention that with petitioners’ do agree

We also §3001(i) for its intended ineffective renders construction re- household/nonhazardous-industrial of promoting purpose 6902(a)(1), (10), §§ 42 U. S. C. facilities, see recovery source ex- enormous “to the potentially them subjecting (11), by Brief a hazardous waste.” residue as ash of managing pense which that a facility not true It is simply 20. for Petitioners are) a hazardous these facilities (as says interpretation is our hazard- to be “managing” is also deemed waste “generator” 3001(i) clearly exempts Section under RCRA. ous thus en- regulations, Subtitle C TSDF these facilities enforcement “full brunt EPA’s to avoid the them abling Practice §29.05[1]. Guide under RCRA.” efforts

[*] ^[*] ^[*] recovery resource of encouraging twin goals RCRA’s It is conflict. sometimes contamination against protecting diverse purposes to contain for legislation not unusual task for that most reliable reconciled, guide and the must be us the So- to reject Here requires is the enacted text. EPA’s to the interpreta- for deference licitor plea General’s Resources A. Inc. Natural S. v. tion, cf. Chevron U Defense be- which (1984), goes 843-844 Council, Inc., 467 U. S. §3001(i) contains. ambiguity of whatever scope yond Trust Sav. Ins. v. Harris & Hancock Mut. Co. See John Life 3001(i) (1993). cannot Bank, 86,109 simply Section 510 U. S. exemption waste-stream cost-saving read to contain the be seek.5 petitioners of the Court reasons, the judgment

For the foregoing Circuit for Seventh Appeals

Affirmed. 3001(i), whether we need not consider In view of our construction expressed in a like the Administra- agency interpretation an memorandum less deference under Chevron than tor’s in this case is entitled Register, in the adopted by published rule Federal interpretation an by adjudication. Stevens,

Justice with whom Justice O’Connor joins, dissenting. *11 statutory provision question in is a 1984 amendment

entitled “Clarification of Household Waste Exclusion.”1 To clarification, understand that we must first examine the “waste exclusion” that the and, amendment clarified more particularly, ambiguity that needed I clarification. begin pre-1984 therefore with a discussion of the relevant law. I then examine the text of the statute as amended and explain why apparent tension between the broad defini- generation” tion of the term “hazardous waste in the 1976 specific activity Act and the more exclusion for the of inciner- (and ating household wastes mixtures of household and other wastes) nonhazardous in the 1984 amendment should be re- by giving solved effect to the later enactment.

I Congress When enacted the Resource Conservation and Recovery (RCRA), delegated Act of 1976 to the Environ- (EPA) Agency regulatory mental authority Protection vast garbage over the society generates. mountains of that our classify The statute directed the EPA to waste as hazardous regulatory nonhazardous and to establish controls over disposition categories pursuant of the two of waste §6921(a); Subtitles and D C of RCRA. 42 U. S. C. ante, see promulgated end, 331-332. To that the EPA in de- regulations establishing tailed a federal hazardous waste management system pursuant to Subtitle C.

Generally, though always, regulations the EPA assume properly that waste is characterized as hazardous or nonhaz- ardous when it first becomes waste. Based on that charac-

1Section 223 of the Hazardous and Solid Waste Amendments of 1984 § amended 3001 of the Resource Recovery Conservation and Act of 1976. See 3252; 6921(i). 98 Stat. 42 U. S. C. provision The text of the quoted is ante, at 334. either Subtitle C is under terization, the waste regulated nonhazardous when is as or D. Household waste regarded haz- it is not mixed with and, discarded as as long it is first waste, during it retains that characterization ardous it contains Even though its treatment and disposal. after as hazardous other that would be classified some materials a resi- contexts, may produce and even its treatment though hazardous matter a concentration of due that contains higher discarded, such than when the was originally garbage under D. See as nonhazardous waste Subtitle regulated ante, that burns Thus, nothing at 332-333. an incinerator resi- tons of hazardous but waste might “generate” to be due, but as a matter it still is deemed process- statutory D, waste and is Subtitle regulated nonhazardous ing *12 C, rather than Subtitle facility. 261.4(b)(1) first es- the EPA’s 1980 regulations

Section 45 Fed. Reg. tablished the household waste exclusion. See (1980). of that regulation simply 33120 The relevant text (includ- derived from households that solid wastes provided motels) hotels, and were residences, ing single multiple itself said noth- “not hazardous wastes.”2 The regulation that remains after about status of the residue ing waste. An incineration of such household accompanying “residues comment, however, unambiguously explained (e. g. treat- incineration, thermal after treatment remaining ment) hazardous are not waste.” Id., Thus, the administrative history 33099. 261.4(b)(1) (1993) § The full text of 40 CFR reads as follows:

“(b) Solid Wastes which are not hazardous wastes. The following solid are wastes not hazardous wastes: “(1) waste, including been col- Household household waste that has (e. g., lected, stored, treated, transported, disposed, recovered refuse- (in- fuel) material derived or reused. ‘Household waste’ means tanks) cluding garbage, sanitary septic in derived from trash and wastes motels).” residences, (including multiple households hotels single and a text, why municipal revealed rather than its regulation, treated as was not household waste burning incinerator waste. of hazardous generator an important comment contained EPA’s explanatory with other hazard- was “mixed If household waste

warning: hazard- would be deemed entire mixture wastes,” the ous itself nor the regulation neither the comment ous.3 Yet waste with household mixing the consequences identified Presumably nonhazardous.4 entirely other wastes that are of hazard- a lower a mixture would contain percentage such waste, and therefore material than pure ous assumptions classified as should also be nonhazardous — that mixing with the EPA’s warning are not inconsistent “with other hazardous wastes” would household waste The EPA’s terminate the household waste exemption. comment on the significance adding failure to expressly or industrial waste nonhazardous commercial percent nevertheless warranted further clarification. that clarification in 1984. Elaborating enacted

Congress 1984 amend- the EPA’s the text of the warning upon §6921(i) 3001(i) clear RCRA, § ment— 42 U. S. C. —made that a a mixture of household waste facility treating “solid waste from commercial or industrial sources that does 6921(i)(l)(A)(ii), shall not be waste,” not contain hazardous *13 wastes, other how “When household waste is mixed with hazardous ever, the entire mixture will be deemed hazardous in accord with §261.3(a)(2)(ii) they with regulations except of these when are mixed haz (see 261.5). § produced by generators quantity ardous wastes small While may se, per household waste not be hazardous it is like other solid just (except waste. Thus a mixture of household and hazardous those noted) regulated regula wastes is also as a hazardous waste under these (1980). Reg. tions.” 45 Fed. 33099 4 regard, In regulations unexplained this because the left the ramifica- mixing tions of household nonhousehold waste that is not haz- waste with ardous, by asserting Chicago the unqualifiedly Court errs that the inciner- ator generator “would have been considered a Subtitle C under the 1980 Ante, regulations.” at 334.

343 treating words, be waste. In other the to hazardous deemed waste derived sources of from other addition wowhazardous extinguish waste not the household exclusion. does regulation parallel the 1980 and the 1984 The between statutory striking. In EPA referred amendment is 1980the phases “in all its man- exclusion of household waste to the phases Similarly, agement.”5 the 1984 statute lists all facility management when states that a the incinerator’s energy recovering burning mass a mixture of the not contain waste and solid that does other treating, storing, deemed to be waste “shall not be hazardous managing wastes.” disposing of, or otherwise hazardous 692l(i). § though only refers Even that text 42 S. C. See U. exemption waste, the burns the the of the to significantly it as a waste section characterizes of the title description amend- title’s of the the Moreover, exclusion. codify an to its identifies intent as a “clarification” ment regulation. counterpart Report Committee that recommended The Senate B001(i) sponsors of that the demonstrates enactment meaning have it to the same legislation understood Report, regulation That it “clarified.” EPA setting first notes that detail, in some worth out which is §3001 clarify to “to reported bill adds the amendment respect to waste exclusion with coverage the household through recovering energy recovery facilities resource Rep. 98-284, No. burning municipal waste.” S. solid mass (1983). “in promulgated the exclusion had p. EPA regulations management established its hazardous the house- generated consumers waste streams exclude sufficiently simi- wastes are sources whose hold level phases management, in all of its excluded household waste is “Since treatment) (e. incineration, g. thermal remaining after treatment residues Reg. 45 Fed. as hazardous waste.” are (1980). *14 those households.” lar and quality in both quantity Ibid. facilities recovery that resource The explains Report with that are mixed wastes take in household frequently a of com- variety waste streams other nonhazardous sources, and emphasizes impor- and industrial mercial recovery viable resource commercially tance of encouraging [B001(i)] Ibid. To that section clari- end, “[n]ew facilities. the household waste include within fies the intent to original which recovery activities a resource exclusion of household waste from the mass burning recovers energy Ibid. other sources.” and non-hazardous waste from further Report explains: in- of such a facility,

“All waste activities management treatment, stor- cluding generation, transportation, the exclu- and of waste shall be covered age disposal (2) (1) in sion, [the if the limitations paragraphs must First, facilities receive are met. such amendment] waste from waste solid and burn only which not contain hazardous other sources does listed section 3001. identified or under hazardous wastes “Second, accept such facilities cannot listed section 3001 from commercial identified or under and must establish contractual sources, or industrial or other notification inspection pro- requirements are received or cedures to assure that such wastes meas- burned. This provision requires precautionary shown be ures or can be effective procedures which of hazard- acceptance the unintended safeguards against ous If such measures are resource place, waste. be activities would recovery facility normally whose should not be covered the household waste exclusion for the inadvertent occasional, receipt penalized from such commercial or burning of hazardous material industrial must monitor sources. Facilities and, receive if revise the they necessary, precautionary *15 of to assure the establish against receipt measures they Ibid. waste.” such hazardous to the Senate bill became comments referred These followed the Committee’s of the Senate a law after majority Id., amended) (as the bill do “that pass.” recommendation to as- it is unrealistic this l.6 commentary, quite at Given the word from the omission of the “generating” sume that in the of activities management description particularized render the any intended to statutory description statute was the Commit- than either the 1980 or inclusive regulation less to assume that legis- is even more unrealistic It tee Report. detected amendment would have on the 1984 lators voting the Commit- text and between the statutory difference not does the term because “generating” tee’s summary just of A commonsense the 1984 amendment. reading appear the in the of Committee Report text statutory light the ob- the 1980 reveals an of the background against rule.7 not to the to preserve, change, existing vious purpose adopted the Senate amendment verbatim. Committee The Conference an recov energy “The amendment clarifies that stated: Senate Report Its only if burns requirements from hazardous waste is ery facility proce and establishes commercial wastes and non-hazardous residential facility.” not at the wastes will be burned assure hazardous dures to (1984). 98-1133, p. No. Rep. H. R. Conf. in a single to “‘a word significance 7 The refusal to attach majority’s ” ante, of, or misunderstanding a reveals either report,’ committee for, legislative purpose the of committees. The lack of function respect have Congress is the Members who provide a committee report summary with a in the committee’s deliberations part not taken the recommendation reasons for committee’s of the bill and the provisions the obviously not have report does the bill should become law. is after it leaves text of a bill not changed Yet when the force law. fairly committee, report the are entitled assume that the Members this Report significant What makes legislation. the proposed summarizes main intent to but the unmistakable single “generation,” word single “generating” law. The omission of the word existing an rule of tain same no than omission significance statute has more regulation. the text of the 1980 word from

II unambiguous statutory as the not as text is The relevant tension between There is substantial asserts. Court generation” in term “hazardous broad definition 1004(6) codi- household waste exclusion of RCRA and the provisions be read Both can the 1984 amendment: fied activity. The “means the act former to describe the same producing process 2799; Stat. hazardous waste.” 90 *16 6903(6). literally, is broad that definition Read 42 U. S. C. burning pure encompass enough household the only statutory produces residue. The some hazardous that pro- escape that from that is the amendment conclusion activity burning exemption household an for the vides distinguish exemption between does not waste. Yet that pure one and a mixture waste, hand, household on the wastes, on the other. It household other nonhazardous exempts pure mixture, or stream the either both the exempts neither. by definition

Indeed, and industrial waste is commercial In it to fall within the exclusion nonhazardous: order for hazard- amendment, the it must not contain created components. consequence, only aspect of this ous As a the ordinarily regulated stream that be Subtitle would reasonably the con- ash EPA could C RCRA residue. give therefore, statute with clude, that to content to the respect component stream, to this of the waste the incinera- exempted regulation. tor ash must be from Subtitle C exemption facility burning states that a solid waste treating, storing, disposing of, not be “shall deemed to be or managing purposes otherwise hazardous wastes for the subchapter” under if satis- this two conditions are long ante, at fied. See As as the two conditions 334. are though being disposed met—even the material treated components during, of contains before, hazardous and after its treatment —that material “shall be deemed to be . .. By characterizing input hazardous.” both the and the out- ac- excludes the 1984 amendment hazardous, as not put that waste generation of hazardous the definition from tivity ac- that the same obvious For it is apply. would otherwise because to regulation a facility both subject cannot tivity regu- is hazardous and residue its be residue to the same deems the statute because lation nonhazardous.8 meaning literal only by to be

Thus, guided if we are broad effect to the we must either text, give statutory all and subject waste generation of hazardous definition ash to Sub- hazardous generate incinerators municipal that burn pure those (including title C regulation waste) equally exclusion that applies to the effect give non- include other and mixtures household waste pure is the the latter reasons For several wastes. hazardous re- and more narrower effectuates choice. It proper more gen- than the earlier rather enacted provision cently 1984 amendment title of the It definition. respects eral rather than “clarification” as a what follows by treating sur- rather It avoids Court’s or a modification. repeal *17 uninvited) the household (and to invalidate decision prising 1980,9 on which in that the EPA adopted exclusion waste 8 “imaginative use reading text as my of the characterizes The Court ante, predicate “shall 1, subject of the 335, the ellipsis,” at n. because of than recovery facility rather is the . . hazardous” not be deemed to be . true, is That the waste is burned. disposed that of after the residue is to be it not “deemed exempted is because is facility reason the is but the statutorily deemed it is the Thus disposing ... of... hazardous wastes.” effec- object sentence —wastes—that the of the nonhazardous character of activity and the regulation the tively exempts Subtitle C that, facility is not If, provides, engaged activity. in as the statute output disposes it of the disposing wastes when to be of hazardous deemed nonhazardous. output deemed facility, it that the is of the must be true give the reader opinion pages of the Court’s Although the first nine pure household regulatory exclusion for impression the that the 1980 acknowledges that its construction valid, ultimately was the Court exemption “withholding all waste-stream of the statute has the effect of facilities, for the waste recovery even processed by for waste resource reasonably municipalities throughout relied the have Nation history legislative explains why the It a decade.10 for over impose significant new burdens intent to to mention an fails Finally, municipal the operation is incinerators. on the adopted and that reasonable the EPA has construction that accepted.11 jurists have may represent policy. today majority’s sound

The decision necessary dispose spend Requiring the funds cities re- in with the strict residues accordance their incinerator provide protections quirements additional C will Subtitle con- that the true, however, It is also to the environment. encouragement space landfill and the of scarce servation municipal recovery energy and valuable materials motivating major enactment. were concerns RCRA’s wastes regulating purposes will be disserved those Whether municipal and, so, whether under C if incinerators Subtitle may justify the costs environmental benefits nevertheless policy regulation questions of that we are are such additional questions precisely competent are to resolve. Those Congress EPA has to answer. kind that directed Ante, exclusively facility.” passing through an household waste stream course, that on the Of it is not the 1984 amendment casts doubt at 338. ante, 338, 4, validity rigid read- regulation, see n. but Court’s 1004(6)’s generation” “hazardous that ing of definition of term has RCRA since has achieved that result. Since that definition been in any utterly explain the Court the 1984 made fails to how amendment change in the law. Chicago argument At oral advised Government counsel us country and comparable incinerator facilities in the one of about acceptance the EPA of nonhazardous has never contended that C. subjected commercial waste of them to under Subtitle Arg. Tr. of Oral 25. in Environmental opinion specially Judge Haight’s comprehensive See *18 Fund, Inc., Technologies, Ine. v. Wheelabrator Supp. 725 F. Defense (SDNY (CA2 1991). 1989), aff’d, That cited with 931 F. 2d decision is (CA7 1993) approval by 303,305 (dissenting Judge Ripple, Circuit 985 F. 2d Fund, Chicago, 345,352 Environmental Inc. opinion); v. F. 2d Defense (CA7 1991) (dissenting opinion), litigation. in this in 1980 still EPA’s first position, adopted unambiguously maintained was and remains correct and today,12 permissi- ble of the EPA’s broad mandate. congressional interpretation I dissent.

Accordingly, respectfully 12Although there has been some ambivalence in the EPA’s views since 766-768, see 725 Supp., F. there ambiguity is no or equivocation original either its present or its interpretation of RCRA.