Derived From Rule in the United States

Derived From Rule in Environmental Law

A rule issued by the Environmental Protection Agency (EPA) that applies to wastes generated in the process of treating hazardous wastes.

The Resource Conservation and Recovery Act (RCRA) is the statute that deals with solid and hazardous waste. Pursuant to that law, the EPA has issued three lists of hazardous wastes, and for those wastes not listed by name it has established the characteristics that classify a waste as hazardous [see characteristic waste].

One question arising from the treatment, storage, or disposal of hazardous wastes is how to classify the residue from those activities. If a hazardous waste is burned, what is the status of the ash? If a chemical is applied and a leachate is caught, is the leachate also hazardous?

The EPA’s derived from rule starts with the assumption that any waste generated from treatment, storage, or disposal of hazardous waste is also hazardous waste unless it is exempted. It is exempted only if it is delisted or it no longer exhibits the characteristics of a hazardous waste. The first exemption is available only for wastes derived from listed wastes, the second only for wastes that were originally hazardous because they were ig notable, corrosive, reactive, or failed the toxic characteristic leaching procedure (a test required by the EPA). For example, if hazardous waste A, a listed waste, is burned, the ash is hazardous unless the owner of the ash gets the EPA to exempt it. However, if hazardous waste B is hazardous because it is corrosive, the ash from its burning will be hazardous only if it remains corrosive. A related rule, the mixture rule, states that if a listed waste is mixed with another waste, the resulting waste is hazardous. The way to escape the hazardous label in this case is through delisting.

The purpose of these rules is to ensure a listed waste and its “by products” do not slip out from under the regulations controlling hazardous waste treatment, storage, or disposal until the EPA determines that they are no longer hazardous.

In 1991, the D.C. Circuit Court of Appeals determined that the EPA did not go through the necessary rulemaking process when it created the derived from and mixture rules. In Shell Oil Company v. EPA, the challenge was both to the substance of the rules and the procedure that created them. The court did not rule on the substance because it did not have to. Instead, it determined that the initial notice of rulemaking did not mention either rule and that the rules were not a logical outgrowth of the proposal. The original proposal dealt with establishing criteria for identifying hazardous waste characteristics and listing particular wastes as hazardous. That public notice, which resulted in five massive public meetings and even more comments through formal submission in writing, did not mention the possibility of regulating mixtures or derived from wastes. The court suggested, however, that the EPA reinstate the rules on an emergency basis while it completed the proper steps. The rules were reinstated by the EPA on an interim basis on 3 March 1992. After they were reinstated, EPA treated the rules as if they had always been valid. Thus, although the circuit court found them to be flawed, the EPA’s position sought to eliminate any lapse in the rules from the time they had first been promulgated.

An administrative case, decided by the Environmental Appeals Board in 1994, determined that EPA’s retroactive application of the rules was not permissible. The board reasoned that once the court invalidated the rules, they did not exist from the time of creation in 1980 until they were reinstated in March 1992.

In a later notice (20 May 1992), the EPA solicited comments on two different approaches to identifying hazardous waste. Either of these approaches would exempt some derived from wastes and mixtures from hazardous waste classification without requiring a delisting process. One proposal is a concentration based approach to identification: if the mixture or other waste is below a certain concentration, it is no longer a hazardous waste. The other expands the current system of identifying wastes by their characteristics to define when a waste enters or exits the hazardous waste system [see characteristic waste]. Refining the hazardous waste identification system will ease the burden on both the EPA and the regulated public. It will allow the EPA to focus more on the substance of the regulations than on threshold identifications, and help generators of waste avoid lengthy delisting processes. However, Congress added a rider to the Department of Veterans Affairs and Housing and Urban Development and Independent Agencies Appropriation Act that required the EPA to promulgate revisions to the mixture and derived from rules. The law prohibited the agency from making revisions effective before 1 October 1993. The EPA withdrew its earlier proposal.

On 22 March 1995, the EPA entered into a consent decree with the Environmental Technology Council. Approved 12 May 1995, the decree requires the EPA to propose a replacement rule by 15 August 1995 and promulgate a final rule by 15 December 1996. The first deadline has been missed.
Based on “Environment and the Law. A Dictionary”.