342
Stevens, J., dissenting
regulation, rather than its text, revealed why a municipal incinerator burning household waste was not treated as a generator of hazardous waste.
The EPA's explanatory comment contained an important warning: If household waste was "mixed with other hazardous wastes," the entire mixture would be deemed hazardous.3 Yet neither the comment nor the regulation itself identified the consequences of mixing household waste with other wastes that are entirely nonhazardous.4 Presumably such a mixture would contain a lower percentage of hazardous material than pure household waste, and therefore should also be classified as nonhazardous—assumptions that are not inconsistent with the EPA's warning that mixing household waste "with other hazardous wastes" would terminate the household waste exemption. The EPA's failure to comment expressly on the significance of adding 100 percent nonhazardous commercial or industrial waste nevertheless warranted further clarification.
Congress enacted that clarification in 1984. Elaborating upon the EPA's warning in 1980, the text of the 1984 amendment—§ 3001(i) of RCRA, 42 U. S. C. § 6921(i)—made clear that a facility treating a mixture of household waste and "solid waste from commercial or industrial sources that does not contain hazardous waste," § 6921(i)(1)(A)(ii), shall not be
3 "When household waste is mixed with other hazardous wastes, however, the entire mixture will be deemed hazardous in accord with § 261.3(a)(2)(ii) of these regulations except when they are mixed with hazardous wastes produced by small quantity generators (see § 261.5). While household waste may not be hazardous per se, it is like any other solid waste. Thus a mixture of household and hazardous (except those just noted) wastes is also regulated as a hazardous waste under these regulations." 45 Fed. Reg. 33099 (1980).
4 In this regard, because the regulations left unexplained the ramifications of mixing household waste with nonhousehold waste that is not hazardous, the Court errs by asserting unqualifiedly that the Chicago incinerator "would have been considered a Subtitle C generator under the 1980 regulations." Ante, at 334.
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