ELR Citation: ELR 20810
No(s). 92-1639 (U.S. May 2, 1994)

The Court holds that §3001(i) of the Resource Conservation and Recovery Act (RCRA) does not exempt from RCRA Subtitle C regulation municipal waste combustion ash that is sufficiently toxic to qualify as hazardous waste. Under the plain meaning of §3001(i), so long as a facility recovers energy by incineration of the wastes listed in that provision, the facility is not subject to Subtitle C regulation as a facility that treats, stores, disposes of, or manages hazardous waste. But §3001(i) does not contain any exemption for the ash generated by such incineration. In light of this distinction and RCRA §1003(b)'s declaration of policy that waste that is generated be treated, stored, or disposed of so as to minimize present and future threats to human health and the environment, the Court refuses to interpret RCRA to permit municipal waste combustion ash sufficiently toxic to qualify as hazardous waste to be disposed of in ordinary landfills. Moreover, although RCRA exempts certain resource recovery facilities from regulation as treatment, storage, and disposal facilities, the Act does not exempt a facility in its capacity as a generator of hazardous waste. The Act's significant omission of "generating" from its list of activities in which exempt facilities may engage without a permit, and not the single reference to it in the legislative history, is the authoritative expression of the law. The Act's text requires the Court to reject the government's plea for deference to the U.S. Environmental Protection Agency's (EPA's) interpretation of §3001(i), which goes beyond the scope of any ambiguity that section contains.

In a dissenting opinion, Justice Stevens, joined by Justice O'Connor, examines the relevant pre-1984 law and the statute as amended and finds the relevant statutory text ambiguous. These Justices would look to EPA's interpretation and hold that it is a correct and permissible interpretation of the Agency's broad congressional mandate.

[Prior decisions in this litigation are published at 20 ELR 20375, 22 ELR 20125, and 23 ELR 20690. Appellate and U.S. Supreme Court briefs are digested at ELR PEND. LIT. 66295, 66185, and 66285.]

Counsel for Petitioner
Mardell Nereim, Corporation Counsel
U.S. CtHse., 219 S. Dearborn St., Chicago IL 60604
(312) 744-6975

Counsel for Respondent
Richard J. Lazarus, Prof.
Washington University School of Law
One Brookings Dr., St. Louis MO 63130
(314) 935-6495