Natural Resources Defense Council, Inc. v. United States Environmental Protection Agency

WALD, Chief Judge,

dissenting in part:

Congress has clearly announced that a method of land disposal of hazardous wastes cannot meet its standard of being “protective of human health and the environment” unless the disposer can prove there will be “no migration of hazardous constituents from the disposal unit or injection zone for as long as the wastes remain hazardous.” 42 U.S.C. § 6924 (g)(5). That is a stringent requirement indeed, but one Congress intentionally imposed as the only alternative to a total ban on land disposal of hazardous waste. In its rulemaking, the EPA has, however, substituted for this requirement a far weaker requirement that there be no migration of hazardous waste from the injection zone. The difference is significant: Congress required that there be no migration of hazardous constituents; the EPA regulations allow some migration of hazardous constituents, so long as the migrating constituents are not at so high a concentration that the migrating waste is a hazardous waste. I respectfully dissent from the majority’s holding that this is a permissible interpretation of the statute’s “no migration” standard. 1

A. The Text of the No Migration Standard

In interpreting a statute, one begins with the words themselves. The no migration standard of subsection (g)(5) says that there must be “no migration of hazardous constituents from the disposal unit or injection zone for as long as the wastes remain hazardous.” The two key terms are “hazardous constituents” and “the wastes.”

1. “Hazardous Constituents”

The majority acknowledges that within the field of environmental law, “hazardous constituent” is a term of art with a very specific meaning: it refers to the substances listed in Appendix VIII to 40 C.F.R. Part 261. Any substance on this list (arsenic, for instance) is always a hazardous constituent, regardless of the concentration at which it may be present. A waste may contain hazardous constituents, yet not be a hazardous waste, if the concentration of hazardous constituents in the waste is so low that the waste poses no hazard to human health or the environment. Conversely, a waste may be a hazardous waste without containing a hazardous constituent, if it displays certain characteristics, such as corrosivity. See 40 C.F.R. §§ 261.3 (defining “hazardous waste”), 261.22 (defining corrosivity). Thus, “hazardous constituent” and “hazardous waste,” as used in RCRA, are not casual terms that vaguely describe dangerous things. They are terms of art with specific, distinct meanings.

The term used in the no migration prohibition is “hazardous constituents.” By using this term, Congress expressed an unmistakable intention that there be no migration out of the injection zone of any substance listed in Appendix VIII of 40 C.F.R. Part 261 for as long as the wastes remain hazardous. Under the EPA’s interpretation, however, hazardous constituents may migrate from the injection zone, so long as they do not do so at hazardous concentrations. This interpretation clashes with Congress’ words: if a migrating waste contained hazardous constituents at hazardous concentrations, it would itself be a hazardous waste. The EPA is therefore reading the statute as though it simply said, “there shall be no migration of hazardous waste from the injection zone.” Accepting the EPA’s interpretation means accepting the notion that Congress speaks English so poorly that when it expresses a desire to ban the migration of hazardous wastes from the injection zone, it first introduces a totally different term, “hazardous constituents,” and then qualifies that term in a way that robs it of its well-established meaning, rather than use the correct *161 term in the first place. 2

The EPA arrives at its reading in a convoluted manner; it interprets the term “the wastes” in the statutory phrase “for as long as the wastes remain hazardous” to refer only to the wastes that migrate from the injection zone, rather than to the wastes that remain within, and then goes on to interpret the term “hazardous constituents” in light of this strained interpretation of “the wastes.” See Brief for Respondents at 44-45. Obviously the agency has gone about its interpretive task backwards. Even if the term “the wastes” were ambiguous (and the next section demonstrates that it is not), the EPA would still have to interpret it in the context of the sentence in which it appears. As we have recently said, “[w]hen a statute contains a clear term and an ambiguous term, the ambiguous term must be interpreted in light of the clear one, not vice-versa.” Public Citizen v. Nuclear Regulatory Commission, 901 F.2d 147, 157 (D.C.Cir.1990). Here, the term “hazardous constituents” is a precise term of art, and the term “the wastes” is allegedly ambiguous, yet instead of interpreting “the wastes” in a way that makes sense of Congress’ use in the same sentence of the term “hazardous constituents,” the EPA has interpreted “the wastes” in a way that makes the term “hazardous constituents” entirely superfluous.

2. “The Wastes”

Furthermore, the EPA’s interpretation of which wastes — migratory or residual — determine the permissibility of migration renders meaningless the statutory phrase, “for as long as the wastes remain hazardous.” As the majority acknowledges, Maj. op. at 1159, this statutory phrase describes the time period during which migration of hazardous constituents is forbidden. Under the EPA’s interpretation of “the wastes,” however, the phrase has no relevance to any time period at all. As the EPA sees it, the statute does not bar migration of hazardous constituents from the injection zone for any time period at all; rather it bars migration of hazardous wastes from the injection zone, forever. That is, under the EPA’s interpretation, the phrase, “for as long as the wastes remain hazardous” is only a reflection of the basic substantive restriction against migration of hazardous wastes that the statute imposes, not a temporal limitation. The majority believes that the EPA has resolved “an ambiguity in the statutory definition of the [time] period,” Maj. op. at 1159, but to my mind it is peculiar to resolve such an acknowledged ambiguity in a way that makes the time period not a time period at all.

This conundrum becomes even more bizarre when one considers what the EPA’s interpretation does to the word “remain.” The statute bars migration of hazardous constituents “for as long as the wastes remain hazardous.” In order for something to remain hazardous, it must first be hazardous. That is, the statutory term “the wastes” must refer to something that at one time is, but at some later time may not be, hazardous.

Under the EPA’s interpretation, however, “the wastes” refers only to the wastes leaving the injection zone, and these wastes, according to the EPA, can never be hazardous. See Brief for Respondent at 57-59. The EPA’s interpretation therefore raises pregnantly the question of why Congress would forbid migration “for as long as the wastes remain hazardous” if, as the EPA claims, Congress meant “the wastes” to refer to wastes that could under no circumstances be hazardous in the first place. Congress’ use of the word "remain” is therefore yet another clear indication that “the wastes” does not refer to the wastes that migrate from the injection *162 zone, but rather to the wastes .that are deposited there in the first place. 3

These interpretive difficulties can be resolved only if “the wastes” is read to refer to “the wastes injected into the injection zone.” Only such an interpretation can make sense of the statutory terms Congress used in the section. We know the wastes are hazardous when injected; for as long as they remain hazardous, no hazardous constituents will be permitted to migrate from the injection zone.

The majority attempts to accommodate the statute’s temporal limitation as well as its use of the word “remain” by suggesting still other meanings for the term “the wastes”: the majority says it refers to “the wastes containing the hazardous constituents that are leaving the injection zone” and it “also refers to each part of the larger body of wastes in the injection zone.” Maj. op. at 1159 n. 13 (emphasis added). But even overlooking the fact that the majority has simply replaced the EPA’s definition with others of its own making, once the majority concedes that “the wastes” refers to wastes within the injection zone, even to “[wjastes at the very center of the injection zone that are still hazardous,” id. at 153 n. 13, it follows from the literal text of the statute that there can be no migration of hazardous constituents from the injection zone while these wastes remain hazardous. Both the majority and the EPA ultimately confront the same dilemma in their varying interpretations: if “the wastes” refers only to wastes that migrate from an injection zone, then the phrase “for as long as the wastes remain hazardous” is nonsensical; if “the wastes” includes each part of the wastes within the injection zone, then the EPA cannot allow any hazardous constituents to migrate from the injection zone for as long as the wastes within remain hazardous. 4

B. The History of the No Migration Standard

Because Congress’ use of the term “hazardous constituents” so strongly suggests that it meant to ban more than just the migration of hazardous wastes from the injection zone, the majority is forced to argue that Congress simply did not know what it was talking about. See Maj. op. at 1162 (“the participants seem most often to have either ignored or misunderstood the distinction between hazardous constituents and hazardous wastes”). In so concluding, the majority overlooks well-established tenets of statutory construction, and misreads clear indications in the legislative history that Congress was, indeed, well aware of the critical distinctions in the terms it used.

We noted recently that it is not the province of courts to “correct” Congress’ drafting oversights. Rather, “we courts assume that Congress always knows the particulars whereof it speaks.” We “assume that Congress intended that language which it chose to employ actually was to have meaning,” and we give effect, “if *163 possible, to every word, clause and sentence of a statute ... so that no part will be inoperative or superfluous.” Consolidated Rail Corp. v. United States, 896 F.2d 574, 579 (D.C.Cir.1990) (quoting United States v. McGoff, 831 F.2d 1071, 1080 (D.C.Cir.1987) and National Association of Recycling Industries, Inc. v. ICC, 660 F.2d 795, 799 (D.C.Cir.1981)).

The only exception we recognize is the “rare case” in which “the literal application of a statute will produce a result demonstrably at odds with the intention of its drafters,” United States v. Ron Pair Enterprises, 489 U.S. 235 , 109 S.Ct. 1026, 1031 , 103 L.Ed.2d 290 (1989) (quoting Griffin v. Oceanic Contractors, Inc., 458 U.S. 564, 571 , 102 S.Ct. 3245, 3250 , 73 L.Ed.2d 973 (1982)), and such a case “must involve, at a minimum, some clear indication of congressional intent, either in the legislative history or in the structure of the relevant statute, that informs the specific language in question.” Consolidated Rail, 896 F.2d at 578 . Here, since the language of the statute bars migration of hazardous constituents from the injection zone so long as the injected wastes remain hazardous, only a clear indication that Congress did not mean what it said when it chose the term “hazardous constituents” would satisfy our standard. An examination of the legislative history, however, shows the contrary. The history is replete with evidence that Congress well understood the import of using the term “hazardous constituents” rather than “hazardous wastes.”

The term “hazardous constituent(s)” appears in several places in the HSWA. The history of 42 U.S.C. § 6925 (j), though lengthy, is quite instructive in that regard. Subsection (j) concerns surface impoundments of hazardous waste that existed on November 8, 1984, the effective date of HSWA (“existing surface impoundments”). Subsection 6924(o) requires new surface impoundments to have double linings, but Congress was concerned that many existing surface impoundments had no lining or a single, leaky lining that allowed hazardous waste to leak into underground sources of drinking water. See 129 Cong.Rec. 27,-664 (1983) (remarks of Rep. Breaux). Accordingly, subsection 6925(j) requires that four years after November 8, 1984, existing surface impoundments store no more hazardous waste unless they comply with subsection 6924(o). However, Representative Breaux, who introduced the amendment on the House floor that later became subsection 6925(j), explained that he did not want to be unnecessarily hard on owners of existing surface impoundments. He believed that those owners should not have to alter existing impoundments if they could demonstrate their safety. Accordingly, subsection (j)(4) provides that the Administrator may modify the requirements for an existing surface impoundment if the owner can demonstrate that there will be “no migration of any hazardous constitutent [sic] into ground water or surface water at any future time.”

Representative Lott questioned Representative Breaux about the meaning of his amendment. Representative Lott worried that no one could ever make a showing that there would be no migration at all from an impoundment. See 129 Cong.Rec. 27,673 (1983). Representative Breaux countered that “the definition of ‘hazardous constituent’ talks in terms of the concentration of that hazardous toxic chemical.” Id. About a month later Representative Breaux nailed down his interpretation by introducing another floor amendment which provided, “the term ‘hazardous constituent’ does not include those hazardous constituents which ... will not migrate into ground or surface water in concentrations which may adversely affect human health or the environment.” Id. at 30,827 . His amendment passed the House.

However, after the bill went to conference, that specific amendment changing the normal definition of “hazardous constituent” was deleted, and the language “no migration of any hazardous constituent into ground or surface water at any future time” left intact. The Conference Report, commenting on this change, stated that “the Conferees explicitly reject the provision contained in [Representative Breaux’s amendment] modifying the definition of hazardous constituent.” H.R.Conf.Rep. *164 No. 1133, 98th Cong., 2d Sess. 98, reprinted in 1984 U.S. Code Cong. & Ad. News 5649, 5669 (emphasis added).

Thus, the history of § 6925(j) shows that in formulating the final text of HSWA, Congress explicitly considered the definition of hazardous constituent as distinct from hazardous wastes. It knew what it meant when it required no migration of hazardous constituents, and it realized fully just how strict this requirement was. The Conference Report’s statement strongly confirms the NRDC’s interpretation that Congress used the term “hazardous constituent” as a term of art to refer to any substance listed in 40 C.F.R. Part 261 Appendix VIII regardless of concentration, and it specifically rejected EPA’s more lenient interpretation. 5

The term “hazardous constituents” also appears in 42 U.S.C. § 6924 (u), which provides that permits issued after the effective date of HSWA shall require “corrective action for all releases of hazardous waste or constituents" (emphasis added) from a disposal facility, regardless of when waste was placed there. This provision originated in the Senate Bill, and the Senate Report, commenting on it, states that “[t]he requirement for corrective action applies not just to releases of hazardous wastes, but also to releases of hazardous constituents.” S.Rep. No. 284, 98th Cong., 1st Sess. 32 (1983) (emphasis added). This comment shows once again that the term “hazardous constituents” has a precise meaning that differs from the meaning of the term “hazardous wastes,” and that Congress was well aware of the difference. 6

The majority relies finally on the absence in § 6924’s history of any indication that the congressional conferees intended the final “no migration” standard to be stronger than the standard proposed by either the Senate or the House of Representatives. However, with respect to the point at issue here (whether EPA may allow hazardous constituents to migrate from an injection zone in nonhazardous concentrations), the final HSWA’s “no migration” standard is not in fact any stricter than the standard contained in the Senate Bill, so that the absence of comment in the Conference Report is understandable.

As the majority notes, the Senate version of § 6924’s “no migration” standard read as follows:

*165 if a specified waste contains significant concentrations of one or more hazardous constituents that is highly toxic, highly mobile, or has a strong propensity to bioaccumulate, a method of land disposal may not be determined to be protective of human health and the environment for such specified hazardous waste, unless ... there will be no migration of such constituents from the disposal unit or injection zone for as long as the wastes remain hazardous.

S.Rep. No. 284, 98th Cong., 1st Sess. 84 (1983) (emphasis added). The majority contends that the term “such constituents” should be interpreted in context to refer to “significant concentrations of one or more hazardous constituents that is highly toxic,” etc., and the Senate Bill therefore prohibited migration only of significant concentrations of hazardous constituents. Simply as a matter of English, this is an impossible interpretation of the term. In the Senate Bill, “such constituents” clearly means “highly toxic, mobile, or bioaccumulative hazardous constituents,” and the Bill therefore says that if a specified waste contains significant concentrations of one or more hazardous constituents that is highly toxic, mobile, or bioaccumulative, then that waste cannot be disposed on the land unless there will be no migration of the highly toxic, mobile, or bioaccumulative hazardous constituents, at any concentration.

The Senate Report explicitly sets forth this interpretation of the Senate Bill. The Report instructs the EPA to carry out a two-step assessment with respect to hazardous wastes. First, the Administrator must consider a waste’s inherent characteristics, and determine whether it contains significant concentrations of one or more hazardous constituents that are highly toxic, highly mobile, or have a strong propensity to bioaccumulate. If it does, it is presumptively prohibited from land disposal. S.Rep. No. 284, 98th Cong., 1st Sess. 14 (1983). The presumption for prohibition may be overcome with respect to a particular method of land disposal if the Administrator determines that the method will be safe. Id. The Report then states, “[tjhis determination may be made if the Administrat[or] finds, to a reasonable degree of certainty, that no migration of the highly mobile, highly toxic, or highly bioaccumulative constituents will occur from the disposal unit or injection zone, for as long as the waste remains hazardous.” Id. (emphasis added). The Senate Report uses the phrase “highly mobile, highly toxic, or highly bioaccumulative constituents” where the Senate Bill uses the term “such constituents.”

The Senate Report definitively refutes the majority’s interpretation of the Senate Bill and verifies that the vital element of the final no migration standard — that it means no migration of hazardous constituents, at any concentration — was already present in the Senate Bill. The Senate Report comments on this standard extensively; the Conference Report thus had no need to make further comment. 7

C. The Policy Behind the No Migration Standard

Because the majority accepts the EPA’s interpretation of the “no migration” standard, it does not need to respond to the EPA’s argument that the NRDC’s interpretation would produce an anomalous result: although no hazardous constituents could migrate from the injection zone for as long as the wastes within remained hazardous, once the wastes within the injection zone were no longer hazardous, hazardous constituents could migrate — even at hazardous concentrations. In fact, this result would not bé permitted under the statute, and understanding why helps one to understand the purpose behind the “no migration” standard.

Section 6924 contains two safety standards that a method of land disposal of hazardous wastes must meet. First, the method must be “protective of human health and the environment for as long as the waste remains hazardous.” 8 This general standard gives EPA the power and the duty to ensure the safety of all methods of land disposal. The “no migration” standard, which requires that there be “no migration of hazardous constituents from the disposal unit or injection zone for as long as the wastes remain hazardous,” is a second, more specific requirement that a disposal method must also meet. If a waste *166 disposal method satisfies the “no migration” standard, but for some other reason is unsafe, the EPA must prohibit it under § 6924’s general safety standard.

The following example proves that the general safety standard and the “no migration” standard are separate requirements. Suppose a manufacturer wishes to dispose of a hazardous waste that contains no hazardous constituents (it is a hazardous waste because it displays a hazardous characteristic). Suppose the manufacturer plans to inject the waste into an injection zone from which the waste will migrate while still hazardous. This method of disposal certainly satisfies the “no migration” standard: no matter how one reads the standard, it does not bar the migration of a waste containing no hazardous constituents.

Must the EPA therefore permit the disposal method? Of course not. The EPA has properly concluded, see Brief for Respondent at 58-59, that such a method must be prohibited. Although the method satisfies the no-migration-of-hazardous-constituents standard, it does not satisfy the general safety standard, that disposal methods must be protective of human health and the environment for as long as the waste remains hazardous.

As this example shows, Congress did not need the “no migration” standard to ensure that hazardous wastes not migrate from the injection zone. The general safety standard already does that. The “no migration” standard is an owrprotective standard, inserted by Congress to ensure that not even hazardous constituents migrate from a body of waste known to be hazardous. It does not lead to any anomalous results, because the general standard prevents such results from occurring. It reflects Congress' evident concern that once hazardous constituents are known to be migrating from a body of waste known to be hazardous, the uncertainties involved are too great to allow the EPA to determine that the migration is at an “acceptable” level.

While there is no explicit expression of this specific concern in the legislative history proper, the statute does reflect a concern with “the long-term uncertainties associated with land disposal.” § 6924(d)(1)(A). I note also that eleven members of Congress, including several who were highly influential in the passage of HSWA, wrote a letter to the EPA Administrator Lee M. Thomas during an EPA rulemaking proceeding expressing this concern. They stated:

The requirement for proof of “no migration” is to be interpreted literally____

We specifically rejected the concept of an acceptable level of migration because of the scientific uncertainties associated with determining what is an “acceptable” level. For example, predicting the character and rate of migration, the fate and transport of the contaminants, and points of present and future human and environmental exposure are subject to significant error. The scientific uncertainty makes reliance on such predictions inconsistent with the statutory presumption against land disposal and in favor of treatment.

The phrase “as long as the waste remains hazardous” describes the time frame for which EPA must ascertain whether migration from the disposal unit will occur; it does not describe a substantive standard.

Letter from Rep. Dingell, Sen. Chafee, et al. to Lee M. Thomas 4-5 (Mar. 4, 1986), reprinted in Joint Appendix 374, 377-78. Five Senators expressed a similar concern in a letter during a later rulemaking proceeding, specifically objecting to the EPA’s proposal to allow hazardous constituents to migrate from an injection zone in concentrations that the agency considers safe. See Letter from Sens. Durenburger, Baucus, Stafford, Mitchell, and Chafee to Lee M. Thomas 3 (Mar. 10, 1988), reprinted in Joint Appendix 1350, 1352.

Of course, these letters, being merely the post-enactment statements of individual members of Congress, deserve little weight in our task of statutory interpretation. I do not cite them as evidence of the statute’s meaning; such evidence is abundant in the text of the statute and its legislative history proper. I cite them to show that the strict “no migration” standard that is clearly expressed in the text of the statute is not some wild, counterintuitive result that we should strain to avoid, see Brief for Respondents at 57-59, but rather is the natural result of a belief that migration is an inherently uncertain process.

*167 D. Conclusion

Congress did not use the term “hazardous constituents” idly. Congress understood that the term referred to substances on a certain list regardless of the concentration at which they were present; Congress did not want that meaning varied. Congress clearly understood that “hazardous constituents” was a technical term with a meaning distinct from the term “hazardous wastes.” The EPA’s conclusion notwithstanding, Congress, in enacting the no migration standard banning migration of “hazardous constituents,” did not mean to ban only migration of “hazardous wastes."

Under Chevron, it is our duty to correct administrative agencies when they disregard the clear mandate of Congress. In this case, Congress has used well-established terms of art to express its meaning with great precision. I respectfully dissent from the majority’s holding that the EPA permissibly interpreted RCRA’s no migration standard.

Before WALD, Chief Judge; MIKVA, EDWARDS, RUTH B. GINSBURG, SILBERMAN, BUCKLEY, WILLIAMS, D.H. GINSBURG, SENTELLE, THOMAS, HENDERSON and RANDOLPH, Circuit Judges.

Order

Oct. 5, 1990.

Petitioners’ Suggestion for Rehearing En Banc has been circulated to the full court. The taking of a vote was requested. Thereafter, a majority of the judges of the court in regular active service did not vote in favor of the suggestion. Upon consideration of the foregoing it is

Ordered, by the court en banc, that the suggestion is denied.

A statement of Chief Judge WALD, joined in by Circuit Judges MIKVA and EDWARDS, is attached.

Circuit Judge BUCKLEY would grant the suggestion for rehearing en banc.

WALD, Chief Judge, dissenting from the denial of rehearing en banc, with whom MIKVA and EDWARDS, Circuit Judges, join:

I believe that rehearing en banc should be granted in this case because of its far-reaching impact upon the entire land disposal schemata for hazardous wastes contained in § 3004 of the Resource Conservation and Recovery Act. The keystone of Congress’ mandate in this section is that in any land disposal method, i.e. deep wells, landfills, waste piles and salt dome formations, there be “no migration of hazardous constituents from the disposal unit ... for as long as the wastes remain hazardous” (emphasis added). The majority and EPA have changed that directive to permit leakage and spill of hazardous constituents so long as they do not leach in sufficient quantity to themselves qualify as hazardous wastes at the point they are leaving the unit. (Ironically, EPA and the majority do not even use the same definition of hazardous wastes.) This reading appears an unnatural one, since it is wastes that are injected in the first place, and Congress clearly knew how to distinguish between constituents and wastes. It is also, obviously, a much less protective standard than the literal language of the statute requires. And it does not accord with the known behavior of many kinds of wastes.

I believe this to be one of a rare breed of “Chevron /” cases where “Congress has directly spoken” but the agency has not listened, with critical consequences for the environment. It was because Congress could not begin to predict the behavior of hazardous wastes 10,000 years from now that it adopted the stringent “constituent,” no migration bar. Whether the reformulation of its environmentally protective standard through the tortured interpretation of EPA and the majority is warranted is surely and issue of extraordinary importance, justifying en banc treatment.

. In all other respects, I concur in the majority opinion.

. The majority suggests that if Congress meant the no migration standard to cover single molecules of hazardous constituents, it could have prohibited "migration of any hazardous constituent” rather than "migration of hazardous constituents.” Maj. op. at 154. However, the majority concedes that this difference in phraseology is "not earth-shattering"; I would suggest that it does not even evoke a tremor. If we are going to speculate on what Congress might have said, I think the stronger inference, by far, is that had Congress meant to say, "there shall be no migration of hazardous wastes from the injection zone," it would have said just that.

. It might be argued that "the wastes” are hazardous when they are injected into the injection zone, but that they cease to be hazardous by the time they reach the border of the injection zone and migrate from it, and that therefore there is a time period in between, during which "the wastes" remain hazardous. The problem with this argument is that under the EPA’s definition, "the wastes" refers only to wastes that are migrating from the injection zone. When hazardous wastes are first injected into the injection zone, they are not part of what the EPA calls "the wastes." They do not become part of "the wastes" until they reach the border of the injection zone, by which time they must be nonhazardous. Thus, under the EPA’s definition, "the wastes" cannot remain hazardous, because they can never be hazardous. Once it- is admitted that "the wastes" refers to the body of wastes in the injection zone, the EPA’s interpretation falls.

. The EPA understood this dilemma. It stated,

the Agency is equating the statutory reference to waste remaining hazardous in RCRA section 3004(d), (e) and (g) with the levels and nature of constituents migrating from the unit. The alternative construction of the statutory language is that EPA must not allow any molecule of hazardous constituents to migrate from the unit while the waste within the unit remains hazardous.

52 Fed.Reg. at 32,453 (col. 3). Nothing in the EPA's statements suggests that it would embrace or even countenance the majority’s interpretation, under which “the wastes" can refer to each part of the wastes within the injection zone, and yet hazardous constituents can migrate while some parts of the wastes within the injection zone remain hazardous.

. The majority cites Representative Breaux's floor statements as evidence that Congress "either ignored or misunderstood" the distinction between hazardous constituents and hazardous wastes. Maj. op. at 156. With respect, I suggest that the conferees exhibited no confusion at all when, consistent with the text of the statute, they explicitly rejected Representative Breaux's (and later the EPA’s) proposed definition of "hazardous constituent” as limited to constituents in concentrations sufficient to meet the definition of “hazardous waste."

. The majority opinion claims, erroneously I fear, that "the Senate Report uses the terms constituents and wastes interchangeably in describing the [no migration] standard." Maj. op. at 155. The example cited in text shows that the Senate was well aware of the distinction between the two terms, and is bolstered by numerous other examples in the Senate Report, including those sections discussing the no migration standard. See, e.g., Senate Report at 14 (”[T]he Administrator shall consider the persistence, toxicity, mobility, and propensity to bioaccumulate of a particular hazardous waste or toxic constituents in the waste’’); id. at 14 ("The Administrator may establish ‘concentration limits' for waste constituents and then ban the land disposal of wastes which contain these constituents in excess of the stated [concentration] limits.’’); id. at 16 ("Land disposal is not appropriate for many wastes, particularly wastes containing hazardous constituents significantly in excess of existing ambient standards.”); id. at 16 (In determining whether a waste’s mobility has been sufficiently reduced, the Administrator may set a "maximum concentration of the waste constituents which contribute to the waste's mobility."). Responding to all these examples, the majority relies on the Report’s statement that the Administrator must assure that injected wastes will not migrate while still hazardous in such a way as to pose a threat to human health and the environment. Id. at 15. Of course this is quite true: the Administrator must assure that a method of land disposal is "protective of human health and the environment,” 42 U.S.C. § 6924 (g)(5), and it could not be so if it resulted in the migration of hazardous waste. But the paragraph which the majority cites then goes on to state specifically that there must be no migration of hazardous constituents. Rather than "conflating" the two terms, the Senate Report expresses separately the two safety standards that RCRA imposes. First, a method of land disposal must be protective of human health and the environment. But more specifically, it must not allow any migration of hazardous constituents from the injection zone for as long as the wastes remain hazardous. See Part C, infra.

. It is true, as the majority notes, that the conferees dropped without comment the Senate Bill's requirement that the hazardous constituent involved be highly toxic, mobile, or bioaccumulative before the "no migration” standard applies. However, that deletion is not relevant to this case. What matters is that the Senate Bill already had a "no migration" standard that applied (when it applied) regardless of the concentration of the hazardous constituent involved.

. Actually, subsections (d) and (e) require that a disposal method “protect human health and the *166 environment,” whereas subsections (f) and (g) require that a disposal method “be protective of human health and the environment," but I discern no difference between these formulations.