Potential Adverse Impacts Under the Definition of Solid Waste 

Exclusions (Including Potential Disproportionate Adverse Impacts 

to Minority and Low-Income Populations)

Executive Summary

December 2014

Office of Solid Waste and Emergency Response

U.S. Environmental Protection Agency

1200 Pennsylvania Avenue

Washington D.C. 20460
2

Executive Summary

To achieve the goals of Executive Order 12898, Federal Actions to Address Environmental 

Justice in Minority Populations and Low-Income Populations, EPA must consider environmental 

justice when developing a regulation. Because decisions involving a regulation must be 

informed by a consideration of a number of different issues, an environmental justice analysis is 

one of several analyses the Agency uses when developing regulations. The environmental 

justice analysis may be qualitative and/or quantitative and is designed to provide the appropriate 

information on disproportionately high and adverse impacts to minority and/or low-income 

populations to decision-makers. To the extent an environmental justice analysis reveals potential 

disproportionately high adverse impacts on minority and/or low-income populations, this result 

can affect how EPA uses its policy discretion in pursuing specific regulatory options or engaging 

the public in the implementation of regulations.

In October 2008, EPA published the Definition of Solid Waste (DSW) final rule which, among 

other things, sought to increase the levels of hazardous secondary materials recycling.1,2 

Recycling hazardous secondary materials fulfills two goals of the Resource Conservation and 

Recovery Act (RCRA) by reducing the consumption of raw materials and by reducing the 

volume of waste materials that must be treated and disposed. Recycling can mean less air, water, 

and soil pollution caused by extracting, refining, and processing of raw materials. However, the 

goals of resource conservation and waste reduction must never occur at the expense of one of the 

other fundamental goals of RCRA: protecting human health and the environment from 

hazardous waste management.

The 2008 DSW final rule revised the definition of solid waste under RCRA for certain types of 

hazardous secondary materials being recycled. The hazardous secondary materials recycled 

under the DSW final rule would no longer be regulated as hazardous waste, as long as certain 

conditions were met. The intended effect of the DSW rule was to encourage safe recycling of 

hazardous secondary materials and answer long-standing questions about the RCRA definition of 

solid waste.

In January 2009, the Sierra Club submitted an administrative petition3requesting EPA revoke the 

DSW rule. The petition raised a number of issues questioning the protectiveness of the rule, 

particularly for minority and low-income communities. In June 2009, EPA held a public 

meeting asking for comment on the issues raised in the petition. Many of the commenters echoed 

Sierra Club’s concern about potential disproportionate impacts to minority and low-income 

communities from the rule, and the adequacy of EPA’s analysis of the potential for these impacts 

under the 2008 DSW final rule. Under the 2008 DSW final rule, EPA determined that the 

conditions of the rule would prevent any increase in risk, and therefore there would be no 

 

1 A hazardous secondary material is any material that would be a hazardous waste if discarded.

2 A material is recycled if it is used, reused, or reclaimed. RCRA hazardous waste regulation makes an important 

distinction between materials that are used or reused without reclamation and those that must be reclaimed before 

being reused. A material is reclaimed if it is processed to recover a usable product or if it is regenerated. For 

information on what constitutes legitimate recycling, refer to Attachment A of this document. 

3 The Sierra Club petition is available at http://www.regulations.gov/#!documentDetail;D=EPA-HQ-RCRA-2009-

0315-0002 .
3

disproportionate adverse impacts to minority or low-income communities. However, the 2008 

analysis did not take into account whether the conditions of the rule would operate as effectively 

in the real world as the more detailed requirements of the RCRA hazardous waste regulations. 

In response to comments by Sierra Club and other stakeholders, EPA committed to producing an 

expanded analysis of the potential disproportionate impacts of the 2008 DSW final rule. A draft 

methodology for the analysis was shared with the public in January 2010, and three public 

roundtable discussions were held to discuss the draft methodology.4 EPA considered the 

comments raised in those discussions and conducted the new analysis. The draft environmental 

justice analysis of the DSW rule was peer reviewed, and then presented for public comment. 

The final environmental justice analysis reflects both peer review and public comments. 

The methodology for the DSW environmental justice analysis consists of two parts. The first 

part, the hazard characterization step, includes two phases: (1) identifying potential hazards that 

could pose risks to human health and the environment from the recycling of hazardous secondary 

materials, including accidental releases of hazardous constituents, and (2) analyzing the 

likelihood of such hazards occurring under the requirements of the DSW exclusions as compared 

to the pre-2008 DSW hazardous waste regulations.

The hazard characterization step assesses the potential for adverse impacts independent of the 

demographics of the populations potentially impacted. The methodology and results of this step 

are presented in volume 1 of this analysis, Potential Adverse Impacts Under the Definition of 

Solid Waste Exclusions (Including Potential Disproportionate Adverse Impacts to Minority and 

Low-Income Populations) Volume 1 – Hazard Characterization.

The second step of the DSW environmental justice analysis includes five phases: (1) 

identification of potentially affected communities, (2) analysis demographics of potentially 

affected communities, (3) identification other factors that affect vulnerability in potentially 

affected communities, (4) information synthesis (assessment of disproportional impact),

and (5) identification of potential preventive and mitigation strategies. The methodology and 

results of this step are presented in volume 2 of this analysis, Potential Adverse Impacts Under 

the Definition of Solid Waste Exclusions (Including Potential Disproportionate Adverse Impacts 

to Minority and Low-Income Populations) Volume 2 – Assessment of Disproportionate Adverse 

Impacts.

Below is a summary of findings from the final analysis.

Finding 1: Hazardous Secondary Material Recycling Does Pose Significant Potential 

Hazards

The first step of the DSW environmental justice analysis methodology is hazard characterization, 

which includes both identifying the potential hazards that discarded hazardous secondary 

materials recycling could pose to human health and the environment, and evaluating the 

 

4U.S. EPA. Draft Environmental Justice Methodology for the Definition of Solid Waste Rule, January 2010, 

http://www.epa.gov/epawaste/hazard/dsw/ej.htm
4

likelihood of such hazards resulting in increased risk under the DSW exclusions. EPA conducted 

the first part of the hazard assessment, identifying the potential hazards that discarded hazardous 

secondary materials recycling could pose to human health and the environment, independent of 

any presumption or consideration of health and safety or regulatory controls. In the second part 

of the hazard assessment, EPA considered such controls in conjunction with the hazards 

identified in the first part to assess the likelihood of such hazards resulting in increased risk.

Hazardous secondary materials sent to recycling are physically and chemically similar, if not 

identical, to many of the hazardous wastes sent for treatment and disposal. The most commonly 

recycled hazardous secondary materials are spent solvents and electric arc furnace dust (which is 

recycled to reclaim metals). Spent solvents present particular management challenges associated 

with storage of liquids containing volatile organic chemicals and include both halogenated and 

non-halogenated organic chemicals, which represent a broad range of chemicals and associated 

hazards. Electric arc furnace dust is usually in a solid state and presents different management 

challenges, including storage in waste piles and the potential for wind-blown dust, and can 

contain high concentrations of toxic metals. 

These two classes of hazardous secondary materials (as well as other hazardous secondary 

materials that are recycled) can pose risks via a wide variety of exposure routes and include a 

range of potential adverse health effects, both carcinogenic and non-carcinogenic, and a potential 

for acute impacts, including fire and explosions for certain types of hazardous secondary 

materials, such as solvents.

Finding 2: Possibility of Hazards from Hazardous Secondary Materials Recycling 

Adversely Impacting Human Health and the Environment is Increased under the 2008 

DSW Exclusions

The second part of the hazard characterization step —determining whether these hazards could 

result in increased risk to human health and the environment —is a complex issue because of the 

interactions between how the regulations are written and how they are implemented. Under the 

2008 DSW final rule, EPA presumed that the conditions of the rule would prevent any increase 

in risk. 

However, what the 2008 analysis failed to take into account was whether the conditions of the 

rule would operate as effectively in the real world as the more detailed requirements of the 

RCRA hazardous waste regulations. One of the most common criticisms of EPA analysis of 

environmental justice impacts in 2008 was that it glossed over some of the important protections 

of the hazardous waste regulations, particularly public participation requirements, which were 

not considered under the 2008 DSW final rule.

A more detailed comparative analysis of the regulatory requirements under the 2008 DSW final 

rule with the existing RCRA hazardous waste regulations reveals potentially significant gaps in 

environmental protection under the 2008 DSW final rule. Examples of these gaps include the 

absence of measures to ensure proper oversight, incentives to accumulate larger volumes of 

hazardous secondary materials, the lack of prescriptive standards for waste storage and 

containment, potential issues associated with the interstate transport of hazardous secondary 
5

material for recycling, and reduction in access to information and the opportunity for public 

participation. The specific gaps vary depending on the baseline scenario and the post-DSW 

scenario being considered, and in some cases, there is also a potential for increased benefits, 

primarily from resource conservation and from reduced transportation distances.5 

Summary of Potential Impacts of the 2008 DSW Final Rule

Under Different Recycling Scenarios

Hazardous Waste 

Baseline DSW Practices Summary of Potential Impacts

Scenario 1: Generator continues current recycling practices

Generator recycles

material onsite 

under hazardous 

waste regulations

Generator recycles

material onsite under 

generator-controlled 

exclusion

Potential increased risk to human 

health and the environment at 

generator due to longer accumulation 

times, greater quantities, lack of 

explicit preventative measures

Generator sends 

material offsite for 

recycling to RCRApermitted facility 

under hazardous 

waste regulations

Generator sends 

material offsite for 

recycling at a RCRApermitted facility under 

transfer-based exclusion

Potential increased risk at 

generator due to longer accumulation 

times, greater quantities, lack of 

explicit preventative measures

No change in risk at recycling facility.

Generator exports 

material under 

hazardous waste 

regulations for 

recycling in another 

country

Generator exports 

material under the 

transfer-based exclusion

for recycling in another 

country

Potential increased risk at generator

due to longer accumulation times, 

greater quantities, lack of explicit 

preventative measures.

No change in risk at recycling facility.

 

5

 By reporting the potential for increased benefits under certain scenarios, EPA does not intend to imply that such 

benefits could justify increased risk to human health and the environment from discarded hazardous secondary 

material. Promoting resource conservation and recovery is a major goal of RCRA, but this goal does not supersede 

the mandate to assure that hazardous waste management practices are protective of human health and the 

environment.
6

Hazardous Waste 

Baseline DSW Practices Summary of Potential Impacts

Scenario 2: Generator switches from off-site disposal to on-site recycling

Generator sends 

material offsite to a 

RCRA permitted 

facility for 

treatment followed 

by landfilling under 

hazardous waste 

regulations

Generator recycles

material onsite under 

generator-controlled 

exclusion

Potential increased risk to human 

health and the environment at 

generator due to longer accumulation 

times, greater quantities, lack of 

explicit preventative measures

Potential reduced transportation 

risk due to switch from off-site 

disposal to on-site recycling

Potential reduced risk in 

communities surrounding existing offsite treatment/disposal facilities.

Potential increased resource 

conservation benefits due to switch 

from disposal to recycling and 

reduction of miles traveled.

Scenario 3: Generator switches from off-site disposal to off-site recycling 

under the control of the generator

Generator sends 

material offsite to a 

RCRA permitted 

facility for 

treatment followed 

by landfilling under 

hazardous waste 

regulations

Generator sends 

material offsite for 

recycling at a facility 

that it controls under 

generator-controlled 

exclusion

Potential increased risk to human 

health and the environment at 

generator due to longer accumulation 

times, greater quantities, lack of 

explicit preventative measures.

Potential increased risk in 

communities surrounding generator 

off-site recycling facilities

Potential increased resource 

conservation benefits due to switch 

from disposal to recycling and 

reduction of miles traveled (if distance 

to reclamation facilities is closer).

Potential reduced risk in 

communities surrounding existing offsite treatment/disposal facilities.
7

Hazardous Waste 

Baseline DSW Practices Summary of Potential Impacts

Scenario 4: Generator switches from off-site disposal to off-site recycling at RCRA-permitted 

facility

Generator sends 

material offsite to a 

RCRA permitted

facility for 

treatment followed 

by landfilling under 

hazardous waste 

regulations

Generator sends 

material offsite for 

recycling at a RCRApermitted facility 

under transfer-based 

exclusion

Potential increased risk to human 

health and the environment at 

generator due to longer accumulation 

times, greater quantities, lack of explicit 

preventative measures

Potential increased resource 

conservation benefits due to switch 

from disposal to recycling and reduction 

of miles traveled (if distance to 

reclamation facilities is closer).

Potential increased resource 

conservation benefits due to switch 

from disposal to recycling.

Potential reduced risk in communities 

surrounding existing off-site 

treatment/disposal facilities.

Scenario 5: Generator switches from off-site disposal to off-site recycling at a U.S. facility without a 

RCRA permit
8

Hazardous Waste 

Baseline DSW Practices Summary of Potential Impacts

Generator sends 

material offsite to a 

RCRA permitted 

facility for 

treatment followed 

by landfilling under 

hazardous waste 

regulations

Generator sends 

material offsite for 

recycling at a facility 

in the United States 

without a RCRA 

permit under transferbased exclusion

Potential increased risk to human 

health and the environment at 

generator due to longer accumulation 

times, greater quantities, lack of explicit 

preventative measures.

Potential increased risk at recycler 

due to longer accumulation times, 

greater quantities, lack of explicit 

preventative measures, and lack of 

oversight and public participation.

Potential increased resource 

conservation benefits due to switch 

from disposal to recycling.

Potential reduced risk in communities 

surrounding existing off-site 

treatment/disposal facilities.

Scenario 6: Generator switches from off-site disposal to exporting for recycling

Generator sends 

material offsite to a 

RCRA permitted 

facility for 

treatment followed 

by landfilling under 

hazardous waste 

regulations

Generator exports 

material under the 

transfer-based 

exclusion for recycling

in another country

Potential increased risk to human 

health and the environment at 

generator due to longer accumulation 

times, greater quantities, lack of explicit 

preventative measures.

Potential increased risk at recycler 

due to longer accumulation times, 

greater quantities, lack of explicit 

preventative measures.

Potential increased resource 

conservation benefits due to switch 

from disposal to recycling.

Potential reduced risk in communities 

surrounding existing off-site 

treatment/disposal facilities.
9

Hazardous Waste 

Baseline DSW Practices Summary of Potential Impacts

Scenario 7: Generator switches from off-site recycling at a facility without a permit6to another 

type of recycling under the 2008 DSW final rule

Generator sends 

material offsite for 

recycling at a 

facility in the 

United States 

without a RCRA 

permit under 

hazardous waste 

regulations

Generator sends 

material offsite for 

recycling at a facility 

under generatorcontrolled exclusion, 

or

Generator exports 

material under the 

transfer-based 

exclusion for recycling

in another country, or

Generator sends 

material offsite for 

recycling at a RCRA 

permitted facility 

under transfer-based 

exclusion, or

Generator sends 

material offsite for 

recycling at a facility 

in the United States 

without a RCRA 

permit under transferbased exclusion.

Potential increased risk to human 

health and the environment at 

generator due to longer accumulation 

times, greater quantities, lack of explicit 

preventative measures.

Potential increased risk at new 

recycler due to longer accumulation 

times, and greater quantities 

accumulated.

Potential reduced risk at new recycler 

due to “contained” standard, legitimacy 

condition and (for the transfer-based 

exclusions) reasonable efforts audit and 

financial assurance conditions.

Potential reduced risk in communities 

surrounding previously used off-site 

recycling facility.

 

6 Under the RCRA hazardous waste regulations, facilities that recycle immediately without storing the hazardous 

waste do not need a RCRA permit.
10

Hazardous Waste 

Baseline DSW Practices Summary of Potential Impacts

Scenario 8: Generator switches from off-site recycling at a RCRA-permitted facility or exporting 

waste for recycling to another type of recycling under the 2008 DSW final rule

Generator sends 

material offsite for 

recycling to RCRApermitted facility 

under hazardous 

waste regulations or 

exports waste for 

recycling in another 

country

Generator reclaims 

material onsite under 

generator-controlled 

exclusion, or

Generator sends 

material offsite for 

recycling at a facility 

that it controls under 

generator-controlled 

exclusion, or

Generator sends 

material offsite for 

recycling at a facility 

in the United States 

without a RCRA 

permit under transferbased exclusion, or

Generator exports 

material under the 

transfer-based 

exclusion for recycling

in another country

Same as corresponding scenarios 2 – 6, 

but with no resource conservation 

benefits.

Finding 3: Many of the Communities Potentially Impacted by this Increase in Risk of 

Adverse Impacts are Minority and Low-Income Communities, and in Some Cases the 

Populations Potentially Impacted are Disproportionately Minority and/or Low Income 

The second step of the DSW environmental justice portion of this analysis help determine 

whether the potential adverse impacts detailed above are likely to occur disproportionately in 

minority and low-income communities. 

Under this step, EPA identified facilities operating under the 2008 DSW final rule, or that could 

represent the demographics of facilities likely to operate under the rule in the future.

These facilities are grouped into four different categories: 
11

1. Facilities that have already notified EPA that they will be managing hazardous 

secondary materials under the 2008 DSW final rule (hereafter referred to as “notification 

facilities”);

2. Facilities in EPA’s An Assessment of Environmental Problems Associated with 

Recycling of Hazardous Secondary Materials7, many of which operated under exclusions 

or reduced regulations (hereafter referred to as “damage case facilities”);

3. Hazardous waste facilities that would have economic incentives to recycle under the rule, 

including hazardous waste generators producing more than a truckload (25 tons) of 

recyclable hazardous secondary materials annually, and hazardous waste recyclers

(hereafter referred to as “hazardous waste facilities”); and

4. Facilities currently recycling non-hazardous industrial waste (e.g., antifreeze) that could 

most easily switch or expand to recycling under the 2008 DSW final rule (hereafter 

referred to as “non-hazardous industrial waste facilities”).

This portion of the analysis also characterized the demographics of the communities within a 

three kilometer radius around these facilities, and determined whether they were 

disproportionately minority or low-income compared to the nation as a whole, and compared to 

the population in the state. Disproportionality was evaluated both at the community and at the 

population level.

For the community-level analysis, the question is whether the communities in a facility category 

had a higher or lower percentage of minority and/or low-income population as compared to the 

comparison population (i.e., national or state population). In general, some communities will 

have a higher percentage than the comparison population, some will have a lower percentage. 

As long at these differences have a regular distribution, they would not indicate disproportionate 

impact. However, if the number of communities with a higher percentage of minority and/or 

low-income population is greater than that of the comparison populations, then there is a 

potential for disproportionate impact. The higher the average difference between the potentially 

affected communities and the comparison group, the greater the potential disproportionality.

In the chart below, the damage case facilities are the only category that consistently demonstrates 

the potential for disproportionate impact on both minority and low-income communities. For 

both the national and the state comparison populations, more than 50% of the damage case 

facilities are located in communities with minority and low-income populations that have a 

higher representation than the comparison populations. In addition, the average difference in 

these cases (i.e., the average amount that the damage case facilities have a higher-than-average 

percentage of minorities or low-income populations) range from 7-9%. Hazardous waste 

facilities demonstrate a potential for disproportionate impacts to minority communities in the 

state comparison but not the national.

Notification and hazardous waste facilities consistently demonstrate the potential for 

disproportionate impact on low-income communities at both the national and state level, an 

increase as compared to the results in the draft 2011 DSW environmental justice analysis, likely 

 

7

 This document contains information about environmental damage cases and the types of potential hazards from 

the mismanagement of the hazardous secondary materials. It is available online at: 

http://www.regulations.gov/#!documentDetail;D=EPA-HQ-RCRA-2002-0031-0355 .
12

attributable to the fact that EPA revised the standard for identifying “low income” community to 

two times the poverty level in response to peer review and public comments.

Community-Level Analysis of Potential Disproportionate Impacts

of the DSW Exclusions to Minority and Low-Income Communities

Highlighted Values Indicate Potential Disproportionate Impact

National 

Comparison

% communities 

with higher 

minority 

representation

(average 

difference)

National 

Comparison

% communities 

with higher lowincome 

representation

(average 

difference)

State 

Comparison

% communities 

with higher 

minority 

representation

(average 

difference)

State

Comparison

% communities 

with higher lowincome 

representation

(average 

difference)

Notification 

Facilities

(60 total)

26.7%

(-11.84%)

51.7%

(1.17%)

48.3%

(0.23%)

68.3%

(5.25%)

Damage Case 

Facilities 

(250 total)

52.4%

(6.97%)

68.0%

(8.65%)

52.4%

(7.20%)

71.2%

(8.98%)

Hazardous 

Waste Facilities

(2,115 total)

46.8%

(1.37%)

59.7%

(4.17%)

53.5%

(5.07%)

60.4%

(4.37%)

Non-Hazardous 

Industrial Waste 

Facilities

(25 total)

36.0%

(-4.0%)

48.0%

(-0.08%)

44.0%

(-0.82%)

44.0%

(-0.73%)

The population-level analysis examines the demographics of the total potentially affected 

population as compared to the total comparison population to determine (1) whether there is a 

substantially greater probability of members in a population group of concern (minority or lowincome) being present as compared to members of the comparison population, and (2) whether 

members of the population group of concern comprise a substantially greater proportion of the 

potentially affected population than the comparison populations. These two comparisons are 

referred to as (1) the Affected Population Ratio, and (2) the Demographic Ratio. In both cases, if 

the ratio is greater than 1.0, then there is a potential for disproportionate impact to the population 

of concern, and the larger the ratio, the greater the disproportionality. 
13

Population-Level Analysis of Potential Disproportionate Impacts 

of DSW Exclusions to Minority and Low-Income Communities

Highlighted Values Indicate Potential Disproportionate Impact to Population of Concern

All Results Statistically Significant (p-value <0.05)

National Comparison

Minority Population

Affected Population Ratio

Demographic Ratio

National 

Comparison

Low-Income 

Population

Affected Population 

Ratio

Demographic Ratio

State 

Comparison

Minority 

Population

Affected Population 

Ratio

Demographic Ratio

State 

Comparison

Low-Income 

Population

Affected 

Population Ratio

Demographic 

Ratio

Notification 

Facilities

(60 total)

0.83

0.89

1.00

1.00

1.39

1.26

1.31

1.21

Damage 

Case 

Facilities 

(250 total)

2.45

1.64

1.60

1.36

2.28

1.49

1.76

1.46

Hazardous 

Waste 

Facilities

(2,115 

total)

1.68

1.42

1.26

1.19

1.41

1.22

1.09

1.06

NonHazardous 

Industrial 

Waste 

Facilities

(25 total)

1.23

1.14

1.13

1.09

1.41

1.22

1.09

1.06

The population-level analysis shows a greater incidence of potential disproportionate impact to 

minority and low-income populations than the community-level analysis. For the populationlevel analysis, the potential for disproportionate impact (i.e., ratios greater than one) occur under 

all categories. This difference can occur when the populations of those communities that do 

have a greater percentage of minority or low-income individuals also have a significantly higher 

total population than those communities that do not. 

Finding 4: Underlying Vulnerabilities Traditionally Associated with Minority and LowIncome Communities Pose the Potential to Exacerbate Potential Adverse Impacts of the 

DSW Rule
14

In addition to considering the potential for the DSW exclusions to result in adverse impacts that 

disproportionately affect minority and low-income communities, the DSW EJ analysis also 

considers other factors that could affect the impacts of the rule, based on categories from EPA’s 

interim guidance on incorporating environmental justice into rulemaking.8 These factors are 

described under five broad categories: (1) susceptible populations, (2) multiple and cumulative 

effects, (3) unique exposure pathways, (4) ability to participate in the decision-making process, 

and (5) physical infrastructure. All of these factors have the potential to exacerbate adverse 

impacts to minority and low-income communities, but two of these factors are of particular 

concern to the 2008 DSW final rule: ability to participate in the decision-making process, and 

multiple and cumulative effects.

Ability to Participate in the Decision-Making Process

A key element of environmental justice is ensuring that all people have an opportunity for 

meaningful involvement in decision-making which may impact them. Certain groups may not 

have historically participated in decision-making because of economic (e.g., income), social 

(e.g., language barriers, education levels, distrust of government), and infrastructural reasons 

(e.g., access to public transportation). In addition, community organizations representing such 

groups may face higher barriers to participation than government or private sector entities. For 

example, taking advantage of existing public participation mandates may require a significant

investment of community resources or volunteer effort, while government and private sector 

entities may have more resources or paid staff to perform these functions. A critical concern is 

whether, and the extent to which, communities have the ability to influence the types and number 

of regulated activities taking place in their community as well as the requirements, conditions, 

and parameters by which such activities must operate (e.g., permit conditions). Under the 2008 

DSW final rule, facilities claiming an exclusion must submit an initial and biennial notification 

to EPA or the state, providing general facility information and describing hazardous secondary 

material types and activities under the exclusion. 

However, under the 2008 DSW final rule, this information is not made directly available to 

potentially affected communities, and facilities and regulators are not required to solicit or 

consider community input into the decision-making process as is the case with RCRA permitted 

facilities. Thus, by removing the RCRA permitting requirement for facilities that manage 

excluded hazardous secondary materials, the 2008 DSW final rule also removed one of the key 

provisions for allowing communities to participate in the regulatory process (at least as it 

concerns the management of the hazardous secondary materials excluded under the rule). 

Communities with lower participation levels may experience greater adverse impacts from 

environmental decision-making because their input has not been considered fully, particularly if 

competing interests are set forth more effectively. This effect is most likely to occur in 

communities that have traditionally been excluded from the decision-making process.

Multiple and Cumulative Effects

 

8 U.S. EPA Interim Guidance on Considering Environmental Justice During the Development of an Action July 

2010. http://www.epa.gov/environmentaljustice/resources/policy/considering-ej-in-rulemaking-guide-07-2010.pdf
15

Minority, low-income, and indigenous communities that have been affected by multiple 

pollution sources may be at risk for increased health consequences. Potential sources of 

pollution can include, for example, industrial facilities, landfills, transportation-related air 

emissions, poor housing conditions (e.g., lead-based paint), leaking underground tanks, 

pesticides, and incompatible land uses. In particular, releases of contaminants that may occur 

over long periods of time, such as leaking septic tanks or underground storage tanks, may be less 

likely to be diagnosed quickly, and tend to be addressed more slowly, and thus pose a higher 

health risk, in low income communities. 

An analysis of the cumulative effects from multiple stressors can provide a more complete 

evaluation of a population’s health risks from pollutants. For example, an analysis of discrete 

stressors and effects on a population might conclude that nearby pollution sources are within 

regulatory limits; however, an analysis of cumulative effects might determine that a person’s 

collective exposure to a contaminant from multiple sources exceeds a health-based limit.

An examination of the facilities that have notified under the 2008 DSW final rule shows that 

multiple environmental hazards are a potential concern for communities around these facilities. 

All have multiple facilities reporting to EPA, either under RCRA, the Clean Air Act (CAA), or 

Comprehensive Environmental Response, Compensation and Liability Act, (CERCLA - also 

known as Superfund) within a three-kilometer radius of the facility. Twenty-six of the forty 

facilities had communities with cancer rates greater than the 80th percentile, and twenty-seven 

showed a greater than the 80th percentile in neurological hazard rates. Twenty-seven facilities 

also had no hospital facilities within the three kilometer area.

Finding 5: The 2014 DSW Final Rule Includes Preventative and Mitigative Steps to 

Address the Potential Adverse Impacts to Minority and Low-Income Communities

1. Regulatory Changes

The 2014 DSW final rule includes regulatory changes to the 2008 DSW final rule that address 

the potential adverse impacts from the current 2008 DSW exclusions, including potential adverse 

impacts to minority and low-income communities. As discussed in further detail in the 

preamble to the 2014 DSW final rule, these changes were made according to EPA’s authority 

under RCRA to regulate discarded material. Because of these changes, the 2014 DSW final rule 

is expected to increase the level of environmental protection for all affected populations without 

having any disproportionately high and adverse human health or environmental effects on any 

population, including any minority or low-income population.

Below is a summary of the major changes to the current DSW exclusions promulgated in the 

2014 DSW final rule, and how they address the potential adverse impacts to human health and 

the environment (including impacts to minority and low-income populations).

Replacement of the Transfer-Based Exclusion with Verified Recycler Exclusion

The withdrawal of the transfer-based exclusion and its replacement with the verified recycler 

exclusion addresses the concerns regarding third-party recyclers. Under the new exclusion, 
16

generators must send their hazardous secondary materials to a RCRA-permitted reclaimer or to a 

verified hazardous secondary materials reclaimer who has obtained a solid waste variance from 

EPA or the authorized state. 

For reclaimers without a RCRA permit, in order to obtain a variance and become verified, the 

third-party reclaimer must address criteria that essentially mirrors the criteria under the 

reasonable efforts condition in the transfer-based exclusion. The reclaimer: (1) must demonstrate 

their recycling is legitimate, (2) must have financial assurance in place to properly manage the 

hazardous secondary material, (3) must not have had any formal enforcement actions for RCRA 

violations in the previous three years and must not be classified as a significant non-complier 

with RCRA Subtitle C, or must provide credible evidence that the facility will manage the 

hazardous secondary materials properly, (4) must have the proper equipment, trained personnel, 

and meet emergency preparedness and response requirements to safely reclaim the material, (5) 

must manage the residuals from reclamation properly, and (6) must address risk to nearby 

communities from potential releases of the hazardous secondary material and in consideration of 

existing environmental stressors. 

Before a variance can be granted, the reclaimer must also go through a public notice and 

comment process, allowing communities the opportunity to have a voice in the environmental 

decisions that may affect them.

Because of the additional oversight, public participation and controls under the verified recycler 

exclusion, the potential for increased adverse impact is minimized at third-party recyclers. 

Codified “Contained” Standard

In addition, the codification of the “contained” standard addresses the lack of preventative 

measures and the lack of RCRA air standards under the generator-controlled exclusions. Under 

the 2014 DSW final rule, the hazardous secondary materials must be contained in a unit 

(including a land-based unit) that meets the following criteria:

(1) The unit is in good condition, with no leaks or other continuing or intermittent unpermitted 

releases of the hazardous secondary materials to the environment, and is designed, as appropriate 

for the hazardous secondary material, to prevent releases of the hazardous secondary materials to 

the environment. Unpermitted releases are releases that are not covered by a permit (such as a 

permit to discharge to water or air) and may include, but are not limited to, releases through 

surface transport by precipitation runoff, releases to soil and groundwater, wind-blown dust, 

fugitive air emissions, and catastrophic unit failures;

(2) The unit is properly labeled or otherwise has a system (such as a log) to immediately identify 

the hazardous secondary materials in the unit; and 

(3) The unit holds hazardous secondary materials that are compatible with other hazardous 

secondary materials placed in the unit and is compatible with the materials used to construct the 

unit and addresses any potential risks of fires or explosions. Hazardous secondary materials in 

units that meet the applicable requirements of 40 CFR parts 264 or 265 are presumptively 

contained. 
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This contained definition provides both the regulated community and the implementing agencies 

with an approach that helps address the potential for fires/explosions, environmental 

contamination and human exposure.

Emergency Preparedness 

New emergency preparedness and response requirements under the generator-controlled 

exclusion and the verified recycler exclusion address the risk of fires, explosions and other 

accidents. Specifically, EPA is requiring that generators that accumulate less than or equal to 

6,000 kg of hazardous secondary material on site comply with the emergency preparedness and 

response requirements equivalent to those in part 265 subpart C, which discuss maintaining 

appropriate emergency equipment on site, having access to alarm systems, maintaining needed 

aisle space, and making arrangements with local emergency authorities. A generator must also 

have a designated emergency coordinator who must respond to emergencies and must post 

certain information next to the telephone in the event of an emergency. For generators that 

accumulate more than 6,000 kg of hazardous secondary material on site, EPA is requiring that 

generators comply with requirements equivalent to those in part 265 subparts C and D, which 

includes all the requirements already discussed above for those accumulating less than or equal 

to 6,000 kg, as well as requiring a contingency plan and sharing the plan with local emergency 

responders.

These new requirements help address the potential for fires/explosions, environmental 

contamination and human exposure.

Additional Recordkeeping Requirements For Speculative Accumulation and for Transfers 

Under the Tolling and the Same-Company Provisions Under the Generator-Controlled 

Exclusion

Under the 2014 DSW final rule, all persons subject to the speculative accumulation requirements 

of 40 CFR § 261.1(c)(8) (including, but not limited to, persons operating under the generatorcontrolled exclusion)) must place materials subject to those requirements in a storage unit with a 

label indicating the first date that the material began to be accumulated. If placing a label on the 

storage unit is not practicable, the accumulation period must be documented through an 

inventory log or other appropriate method. This provision will allow inspectors and other 

regulatory authorities to quickly ascertain how long a facility has been storing an excluded 

hazardous secondary material, and, therefore, whether that facility is in compliance with the 

accumulation time limits.

In addition, the 2014 DSW final rule includes revisions to the generator-controlled exclusion for 

tolling and “same-company” recycling that require recordkeeping for shipments sent and 

received under the exclusion. The records must contain the name of the transporter, the date of 

the shipment, and the type and quantity of hazardous secondary material shipped or received. 

These records may consist of normal business records. Such recordkeeping will facilitate 

enforcement of the exclusion and will allow tracking of hazardous secondary materials to ensure 

that these materials remain within the control of the generator and are not discarded.
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Together, these provisions help address the concern that hazardous secondary materials could 

become abandoned under the generator-controlled exclusions.

2. Implementation Measures

In addition to the regulatory changes to address potential adverse impacts of hazardous 

secondary materials recycling, EPA can take non-regulatory steps to help mitigate the potential 

adverse impacts. These steps include closely monitoring the facilities notifying under the 2014 

DSW final rule, making information about the DSW facilities available to the public, and 

working with states and EPA Regions to ensure they have the information they need to ensure 

compliance with the provisions of the rule, and making available to the public information about 

the facilities that have notified. EPA has begun this process for the states and territories 

currently operating under the 2008 DSW final rule, and plans to continue these efforts in order to 

help prevent potential adverse impacts under the 2014 DSW final rule.

In particular, the notification condition will allow EPA (and the public) to know exactly who is 

operating under the DSW exclusions. EPA has the authority to inspect these facilities and 

enforce Subtitle C regulations if the facilities are not meeting the conditions of the exclusions. 

This enforcement authority, coupled with the new condition that EPA is imposing requiring 

third-party recyclers be verified prior to operating under the exclusion, will help ensure that 

recyclers operating under the DSW exclusions are capable of safely and legitimately recycling 

hazardous secondary materials prior to beginning operations, and that they continue to do so as 

long as they operate under the exclusions.