Draft Environmental Justice Methodology

for the Definition of Solid Waste Final Rule

Proposed Methodology for Assessing Potential Disproportionate Impacts

From the Hazardous Secondary Material Recycling Regulations

On Minority, Low-Income, and Tribal Populations

Draft for Public Discussion

January 13, 2009

Office of Solid Waste and Emergency Response

U.S. Environmental Protection Agency

1200 Pennsylvania Avenue

Washington D.C. 20460
2
i

Executive Summary

Background

On October 30, 2008, EPA published a change to the hazardous waste 

regulations entitled Revisions to the Definition of Solid Waste, also known as 

the “DSW rule.” The DSW rule creates specific conditions for recycling 

hazardous secondary materials1under the Resource Conservation and Recovery 

Act (RCRA). These conditions are different from the hazardous waste 

requirements; as long as the conditions of the DSW rule are met, the hazardous 

secondary material are not defined as “solid waste” and therefore are not 

subject to hazardous waste requirements.

For example, under the DSW rule, hazardous secondary material can be stored 

for longer periods of time than fully regulated hazardous waste, can be stored in 

units other than hazardous waste tanks and containers, and can be transported to 

an off-site recycler without using a hazardous waste manifest. However, the

hazardous secondary material must meet other conditions; for example, 75% of 

the material must be recycled each year, the material must be “contained” and 

not released to the environment, and the company must notify EPA about its

activities and keep records of all shipments. (See Table 1 in Section IX of this 

paper for a complete description of the conditions and requirements that apply 

under the DSW rule.)

EPA’s goal in promulgating the DSW rule was to make it more efficient to 

safely recycle these materials instead of landfilling or incinerating them, and to 

resolve uncertainty about when materials that are sent to recycling are regulated 

“solid wastes,” and when they are more like commodities.

On January 29, 2009, the Sierra Club submitted an administrative petition 

requesting that EPA repeal the DSW rule. The petition argues that the revised 

regulations are unlawful and that they increase threats to public health and the 

environment without producing compensatory benefits and, therefore, should be 

repealed. In particular, the petition disagrees with the Agency’s findings that 

the rule would have no adverse environmental impacts, including no adverse 

impact to minority or low-income communities.

 

1 The DSW rule defines hazardous secondary materials as those materials that would be classified as hazardous 

waste, if discarded.
ii

On June 30, 2009, EPA held a public meeting to allow the public and interested 

stakeholders to provide input to the decision-making process in responding to 

Sierra Club’s administrative petition. Many commenters expressed strong 

concerns that the Agency did not adequately address Environmental Justice in 

the rulemaking. In response to these concerns, EPA has committed to 

conducting an expanded analysis of the Environmental Justice (EJ) impacts of 

the DSW rule. 

Draft DSW EJ Analysis Methodology and Public Involvement

This document explains EPA’s draft methodology for the DSW EJ analysis. It

was designed to present enough detail on the draft methodology to allow the 

public to provide meaningful input, but to still occur early enough in the 

process to allow for course corrections.

Involvement of stakeholders, particularly those potentially affected by the DSW 

rule, will be a key part of the development of the revised DSW EJ analysis. 

EPA would like to begin a public dialogue about how best to conduct the DSW 

EJ analysis. Below is an overview of the draft methodology.

Overview of Draft DSW Environmental Justice Methodology

Step 1: Hazard 

characterization

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.

Step 2: Identification of 

potentially affected 

communities

Modeling the locations of facilities (including potential new 

facilities) that are likely to choose to take advantage of the 

DSW rule.

Step 3: Demographics of 

potentially affected 

communities

Mapping the location of the facilities modeled in Step 2 and 

identifying the demographics (i.e., minority population and 

income level) of the surrounding communities.

Step 4: Identifying other 

factors that affect 

vulnerability in 

potentially affected 

communities

Identifying important vulnerability factors. These include 

factors that may increase the likelihood of “damages”, or the 

likelihood that a facility is sited within a community, or the 

likelihood of health risks in the event of releases. Examples

include the presence of other pollution sources and any 
iii

information on public health of the surrounding population.

Step 5: Information 

synthesis: assessment of 

disproportional impact

Synthesizing all the information to characterize whether the 

DSW rule will facilitate the occurrence of any adverse 

impacts and whether some population groups (e.g., minority 

or low income populations) would be overrepresented in the 

impacted communities.

Step 6: Identification of 

potential preventive and 

mitigation strategies

Identifying potential strategies to prevent non-compliance 

and releases to the environment and also strategies to 

mitigate any impacts identified under step 5.

EPA plans to brief the National Environmental Justice Advisory Council 

(NEJAC) on the draft methodology at their next meeting, scheduled for January 

27–29, 2010, in New Orleans, Louisiana. EPA will also hold a public 

roundtable discussion of the approach concurrently with the NEJAC meeting 

and is planning a second in person public roundtable in the Washington D.C. 

area for February 23, 2010 and a web conference for February 25, 2010. 

Stakeholders are invited to provide feedback on any aspect of the methodology, 

and EPA is particularly interested in the following questions:

1. The primary data source EPA plans to use for Step 1: Hazard 

Characterization is a summary of recycling damage cases that EPA 

developed as part of the DSW rule.

2

 EPA would be interested in any 

other sources of data regarding demonstrated problems with hazardous 

secondary materials reclamation, including any facilities that claimed to 

be conducting such reclamation, but were sham operations.

2. In determining the likelihood of environmental problems (e.g., soil and 

groundwater contamination, abandoned materials, accidental releases, 

such as fires and accidents) occurring at such reclamation facilities, EPA 

could take either a qualitative or quantitative approach. 

A qualitative approach would involve examining the DSW rule point-bypoint and determining how the requirements of the DSW rule compare to 

the hazardous waste requirements and explaining the potential problems 

that would occur if the DSW requirements do not act as intended.

 

2 U.S. EPA An Assessment of Environmental Problems Associated with Recycling of Hazardous Secondary 

Materials , EPA-HQ-RCRA-2002-0031-0355, January 11, 2007. 

http://www.regulations.gov/search/Regs/home.html#documentDetail?R=09000064801f3efb
iv

A quantitative approach would require EPA to make certain assumptions 

about a model facility (e.g., the amount and type of hazardous secondary 

material, the type of neighborhood it is located in, the likelihood of a leak 

or spill or accident) and to calculate the potential impact to human health 

and the environment surrounding the facility.

Identifying a model facility will likely be a challenge given the different 

types of industry sectors that could participate in the DSW rule, and the 

outcome of the quantitative approach would depend greatly on the 

specific assumptions. The quantitative approach could yield more 

specific information than the qualitative approach. However, it would 

likely take longer to conduct. Would the quantitative information be 

useful enough to stakeholders to be worth spending additional time?

(Note that regardless of whether the approach to the Hazard 

Characterization step is qualitative or quantitative, the DSW 

Environmental Justice analysis would still present quantitative 

information on the number of minority or disadvantaged communities 

potentially affected by the DSW rule.)

3. For Step 2: Identification of Potentially Affected Communities, EPA has 

identified three main categories of communities potentially affected by 

the DSW rule: (1) facilities that have already notified EPA that they are 

operating under the DSW rule, (2) hazardous waste facilities likely to 

begin accepting hazardous secondary materials and operating under the 

DSW rule, and (3) new facilities reclaiming hazardous secondary 

materials for the first time and operating under the DSW rule.

For the third category, EPA proposes to use the recycling damage case 

information as a surrogate for the types of facilities that might begin to 

reclaim hazardous secondary materials under the DSW rule. However, 

focusing on just facilities with environmental problems would likely 

skew the dataset, so these facilities could also be supplemented with a list 

of commercial non-hazardous industrial waste reclaimers who have no 

reported environmental problems. Are there other sources of information 

for the location and size of potential new facilities? Of particular concern 

is the possibility of smaller facilities with fewer resources to invest in 

environmental protection entering the business of hazardous secondary 

materials reclamation.
v

4. In addition to the primary EJ analysis of the DSW rule, EPA also plans to 

conduct a supplementary analysis of the other hazardous waste recycling 

exclusions. In addition to the exclusions in the 2008 DSW rule, there are 

dozens of other hazardous waste recycling exclusions that have been in 

place for many years, many of which are also associated with the 

recycling damage cases. 

EPA is interested in any information stakeholders may have about 

problems they have experienced with the existing hazardous waste 

recycling regulations (beyond the DSW rule). The supplementary 

analysis of other recycling exclusions would be done in parallel with the 

main analysis and would not delay preparation of the response to the 

Sierra Club administrative petition.

After receiving input on the DSW EJ methodology via the public roundtables, 

as well as any other information provided to EPA, the methodology will be 

revised and EPA will conduct the DSW EJ analysis.

Once the draft DSW EJ analysis is complete, EPA plans to make it available to 

the public for public comment and for peer review. The revised analysis will 

then be used as part of the information that will be assessed in developing 

EPA’s proposed response to the Sierra Club administrative petition.
TABLE OF CONTENTS

Part 1: Background

I. What Is Environmental Justice? ........................................................................1

II. Purpose of the Draft DSW Environmental Justice Methodology .....................2

III. Public Involvement............................................................................................3

IV. Regulation of Hazardous Secondary Material Recycling .................................4

V. DSW Rule and Environmental Justice ..............................................................5

VI. How Will the Results of the DSW Environmental Justice Analysis 

Be Used?............................................................................................................8

Part 2: Methodology

VII. Baseline Assumptions for the DSW Environmental Justice Analysis..............9

VIII. Scope of the DSW Environmental Justice Analysis .........................................9

IX. Detailed Methodology Discussion ....................................................................10

Step 1: Hazard characterization

Step 2: Identification of potentially affected communities

Step 3: Demographics of potentially affected communities

Step 4: Identifying other factors that affect vulnerability in potentially 

affected communities

Step 5: Information synthesis: assessment of disproportional impact

Step 6: Identification of potential preventive and mitigation strategies

X. Supplementary EJ Analysis: Other Hazardous Waste Recycling Exclusions ..21

Appendix A: Description of the DSW Rule Exclusions

Appendix B: Historical Causes of Industrial Recycling Damages Involving 

Hazardous Secondary Materials and the Definition of Solid Waste (DSW) Final 

Rule Conditions that Address Them

Appendix C: Summary of Information from DSW Notifications as of Nov 23, 2009
1

Draft Environmental Justice Methodology

for the Definition of Solid Waste Final Rule

Part 1: Background

I. What is Environmental Justice?

The Environmental Protection Agency (EPA) considers Environmental Justice to 

be the fair treatment and meaningful involvement of all people regardless of race, 

color, national origin, or income with respect to the development, implementation, 

and enforcement of environmental laws, regulations, and policies. More 

specifically:

 Fair treatment means that no group of persons should bear a disproportionate 

share of the negative environmental consequences resulting from industrial, 

governmental and commercial operations or policies. 

 Meaningful involvement means that: (1) people have an opportunity to 

participate in decisions about activities that may affect their environment 

and/or health; (2) the public’s contribution can influence the regulatory 

agency's decision; (3) their concerns will be considered in the decision 

making process; and (4) the decision makers seek out and facilitate the 

involvement of those potentially affected.

Environmental Justice is specifically addressed through Executive Order 12898:

Federal Actions to Address Environmental Justice in Minority Populations and 

Low-Income Populations, which focuses federal attention on the environmental 

and human health conditions of minority and low-income populations with the goal 

of achieving environmental protection for all communities. The Order directed 

federal agencies to develop Environmental Justice strategies to address 

disproportionately high and adverse human health or environmental effects of their 

programs on minority and low-income populations. The order is also intended to 

promote nondiscrimination in federal programs that affect human health and the 

environment and aims to provide minority and low-income communities with 

access to public information and opportunities for meaningful public participation 

in matters relating to human health and the environment.
2

II. Purpose of the Draft DSW Environmental Justice Methodology

This document, entitled Draft Environmental Justice Methodology for the 

Definition of Solid Waste Final Rule (“Draft DSW EJ Methodology”) outlines 

EPA’s current thinking on the methodology for performing an Environmental 

Justice (EJ) analysis of hazardous secondary material3recycling, particularly as it 

pertains to the Definition of Solid Waste (DSW) final rule.4

The DSW EJ analysis will serve as a pilot project for EPA’s EJ Executive Steering 

Committee’s rulemaking workgroup as it develops a systematic process to 

incorporate Environmental Justice considerations within EPA’s rulemaking 

procedures. While many of the issues discussed in the Draft DSW EJ 

Methodology are unique to the DSW rule, to the extent that the issues raised in the 

DSW EJ analysis relate to the broader issues of Environmental Justice, any 

comments or information obtained will be shared with other EPA Offices, 

including the Office of Environmental Justice in the Office of Enforcement and 

Compliance Assurance, the Office of Policy, Economics and Innovation and the EJ 

Executive Steering Committee, so that this information can be considered as the 

Agency develops guidance for conducting Environmental Justice analyses. 

At the same time, the Agency remains mindful that each Environmental Justice 

analysis addresses a unique set of circumstances, and that the DSW EJ analysis 

should not be used to create a “one-size-fits-all” expectation for EPA’s approach to 

Environmental Justice analyses in other contexts.

The Draft DSW EJ Methodology represents the problem-formulation stage of the 

analysis, a critical early step in determining which types of analytical approaches 

to use. Problem-formulation means clearly articulating the issues we are trying to 

address. For example, EPA’s Framework for Cumulative Risk Assessment

delineates “Planning, Scoping and Problem-Formulation” as the first phase in a 

cumulative risk assessment. Because there is limited precedent for how to conduct 

an Environmental Justice analysis in the context of a national rulemaking, 

thoughtful problem-formulation is critical for a meaningful analysis, as well as for 

laying the foundation for future analyses. 

 

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

4 On October 30, 2008, EPA published a rule that revised the definition of solid waste to exclude certain hazardous 

secondary materials from the hazardous waste regulations promulgated under Subtitle C of the Resource 

Conservation and Recovery Act (RCRA). See 73 FR 64663. 
3

Problem-formulation is informed by a scoping process, which should involve 

robust stakeholder/community involvement. It is critical that scoping and 

stakeholder involvement are incorporated into the Environmental Justice 

analysis/rulemaking effort very early in the process. Thus, this paper is intended to 

be a vehicle for engaging with outside experts and interested stakeholders, 

particularly those located in communities potentially affected by hazardous 

secondary materials reclamation, about the most appropriate way of conducting an 

Environmental Justice analysis for the DSW rule. 

The DSW Environmental Justice analysis itself will, in turn, be used to help EPA’s 

decision-making process regarding whether and, if so, how the DSW rule should 

be revised. As part of that decision process, the public will have the opportunity to 

formally comment on both the DSW EJ analysis and EPA’s tentative decision on 

revising the DSW rule.

III. Public Involvement 

EPA plans to share this draft methodology with interested stakeholders, 

particularly those potentially affected by the rulemaking, in order to make 

improvements, as appropriate, to the approach before conducting the analysis. 

Specifically, EPA plans to present the methodology to the National Environmental 

Justice Advisory Council (NEJAC) at their next meeting, scheduled for January 

27–29, 2010, in New Orleans, Louisiana. EPA will also hold a public roundtable 

discussion of the approach concurrently with the NEJAC meeting and is planning a 

second in person public roundtable in the Washington D.C. area for February 23, 

2010 and a web conference for February 25, 2010. We will also reach out to 

interested and impacted communities to identify effective ways to obtain their 

input. EPA will also reach out to state governments via state associations and 

regularly scheduled meetings and conference calls. Finally, a letter to Tribal 

leaders and Tribal Environmental Departments also will be sent inviting them to a 

nationwide teleconference or web conference to receive and discuss preliminary 

comments from Tribes.

Once the draft DSW EJ analysis is complete, EPA plans to make it available to the 

public for public comment and for peer review. Once all of this is completed, the 

revised analysis will then be used as part of the information that will be assessed in 

developing EPA’s proposed response to the Sierra Club administrative petition.
4

IV. Regulation of Hazardous Secondary Material Recycling

The relationship between hazardous secondary material recycling and the RCRA 

definition of solid waste is a complex one. EPA’s authority to regulate hazardous 

waste is dependent on the material first being a “solid waste” under the Resource 

Conservation and Recovery Act (RCRA). A solid waste is any material that has 

been discarded, within the plain meaning of the term. In court decisions regarding 

the RCRA definition of solid waste, the U.S. Court of Appeals for the D.C. Circuit 

has consistently cited a plain language definition of discard as meaning "disposing, 

abandoning or throwing away." 

EPA’s definition of solid waste states that for hazardous secondary materials that 

are recycled, one must evaluate both what the material is and how it is recycled 

before determining whether or not it is a solid waste subject to RCRA Subtitle C 

jurisdiction.5 For some materials, such as processed scrap metals, EPA made a 

determination that, after processing, they are sufficiently like a commodity and, 

therefore, they are not solid wastes: that is, these materials have not been “disposed 

of, abandoned or thrown away” when recycled. For other materials, such as 

cathode ray tubes (CRTs), EPA has determined that they are not solid wastes when 

they are recycled under certain conditions (for example, the CRTs must either be 

intact or they must meet certain storage and labeling conditions). Failure to meet 

these conditions means that these hazardous secondary materials are discarded and 

therefore are solid and hazardous waste. Other materials, such as lead-acid 

batteries, remain solid and hazardous wastes, but are subject to alternative 

management standards when they are recycled. Still other materials are fully 

regulated as hazardous wastes when recycled.

Despite various EPA rulemakings since the 1985 regulation was promulgated, the 

regulatory status of hazardous secondary materials sent to recycling has continued 

to raise questions. These questions can and have created uncertainty in the 

regulated community and with the public and can potentially negatively affect 

enforcement actions involving the recycling of hazardous secondary materials. 

In an attempt to more definitively answer the question of when reclamation of 

hazardous secondary material does not involve discard, EPA promulgated the 

DSW rule on October 30, 2008, which became effective on December 29, 2008. 

 

5

See 50 FR 618, January 4, 1985. For a more detailed explanation of the 1985 rules defining solid waste, see also

EPA’s webpage on DSW resources at http://www.epa.gov/epawaste/hazard/dsw/resources.htm.
5

(See later discussion on Scope of the DSW Environmental Justice Analysis in 

Section VIII and Attachment A for a more detailed description of the DSW rule.)

V. DSW Rule and Environmental Justice

As part of the DSW rule, EPA made a determination under Executive Order 

12898: Environmental Justice that no disproportionate impacts to minorities or low 

income communities are expected to result from the rule. However, as discussed 

below, EPA will re-evaluate these findings as part of the larger re-evaluation of the 

DSW rule.

The 2008 Environmental Justice determination was based on EPA’s assessment of 

potential countervailing risks of the final rule. As part of the record supporting the 

rulemaking, EPA performed an assessment of environmental problems associated 

with hazardous secondary materials recycling.6 To address commenters’ concerns 

that historic damages are irrelevant to current practices, EPA only included cases 

where damages occurred after 1982 (after the implementation of the RCRA and 

CERCLA7statutes). In addition, the assessment only included those damages that 

could clearly be attributed to some type of recycling activity, including those 

involving the recycling of hazardous secondary materials that are specifically 

excluded from the hazardous waste regulations.

Of the approximately 800 damage cases examined by EPA as part of the 

environmental problems study, the study identifies 208 cases in which 

environmental damages of some kind occurred from some type of recycling 

activity and that otherwise fit the scope of the study.8The remaining cases either 

did not fit the scope of the study (i.e., did not involve recycling or occurred prior to 

1982) or there was not enough information to make a determination. These 

remaining cases are listed in an appendix to the study, but are not included in the 

calculations of damage cases. The damage cases included both reclaimers and 

intermediate storage facilities. 

 

6 U.S. EPA An Assessment of Environmental Problems Associated With Recycling of Hazardous Secondary 

Materials , January 2007 (EPA-HQ-RCRA-2002-0031-0355).

7 Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), commonly known as 

Superfund.

8

Potential cases were identified from a variety of sources, including: (1) comments on the October 28, 2003 

proposed rule; (2) the Superfund National Priorities List; (3) national EPA databases maintained for the CERCLA, 

RCRA, and enforcement programs; (4) contacts with staff in state environmental agencies; (5) contacts with staff 

in EPA Regional Offices; (6) state agency data bases maintained for state Superfund programs and other 

environmental programs; (7) internet searches; and (8) news media reports. In conducting these searches, EPA 

recognizes that it likely does not identify all relevant cases, and that there are additional cases of environmental 

damage that have not been identified. 
6

A detailed examination of the 208 cases revealed damages that included leaks, 

spills, dumping, or other activities that caused a release to occur that was serious 

enough to require some cleanup action. They also included instances where 

materials were abandoned (e.g., in warehouses) and which required removal 

actions overseen by a government agency and expenditure of public funds. 

Damages occurred in all parts of the country and varied from relatively small 

incidents involving limited contamination of soils and/or abandoned residuals, 

such as battery casings, to much more substantial and expensive cases, with largescale soil and ground water contamination and remediation costs in the tens of 

millions of dollars.

The most common types of secondary materials associated with the cases were 

scrap metals, solvents, used oil, non-ferrous metals, lead-acid batteries, and used 

drums sent for cleaning and reconditioning. Less common were cases involving 

mercury, precious metals, and hazardous foundry sands. Thirteen (6%) of the 208 

cases were determined to be from reclamation that occurred on-site, while the 

remainder were third-party commercial recyclers. 

It should also be noted that many of these cases involved secondary materials that 

were not regulated as hazardous waste or were subject to reduced regulation, prior 

to the DSW rule. Thus, because these hazardous secondary materials were not 

regulated as hazardous wastes, or were subject to reduced requirements, the DSW 

rule did not, for all practical purposes, change the regulations for these materials. 

Also, we would note that these cases were not subject to the types of requirements 

included in the DSW rule, including notification, containment, financial assurance, 

reasonable efforts audits and codified legitimacy criteria.9 

EPA’s assessment of potential countervailing risks looked at the underlying causes 

of these damage cases and explained how each was addressed by the regulatory 

conditions of the rule. A summary table of this assessment is found in Appendix 

B. Because EPA determined, based on the conditions, that there would be no 

adverse environmental impacts in general, the Agency concluded in the 2008 DSW 

rule that there would also be no disproportionate adverse impacts to low income or 

minority communities. 

 

9 Because many of the damage cases involved secondary materials or activities that have not been subject to Subtitle 

C regulation, one of the questions that we will be reviewing as part of this Environmental Justice analysis is whether 

one or more of these materials or activities should be regulated in some sense under Subtitle C of RCRA. 
7

On January 29, 2009, the Sierra Club submitted an administrative petition 

requesting that EPA repeal the October 2008 revisions to the DSW rule. The 

petition argues that the revised regulations are unlawful and that they increase 

threats to public health and the environment without producing compensatory 

benefits and, therefore, should be repealed. In particular, the petition disagrees 

with the Agency’s findings that the rule would have no adverse environmental 

impacts, including no adverse impacts to Environmental Justice communities.

Of particular note is the fact that studies of hazardous waste treatment, storage and 

disposal facilities (of which hazardous waste recycling facilities are a subset) have 

been shown to be located disproportionately in minority communities, with over 

56% of the population within 3 kilometers of the facilities consisting of people of 

color (African American, Hispanic or Latino, Asian or Pacific Islander or Native 

American), as compared to approximately 30% of the population in comparable 

areas without hazardous waste facilities.10 Thus if the facilities claiming the DSW 

exclusion were to have an adverse environmental impact on the surrounding 

communities, and such facilities follow the same location pattern as hazardous 

waste facilities in general, a disproportionate impact on minority communities 

would be likely.

On June 30, 2009, EPA held a public meeting to allow the public and interested 

stakeholders to provide input to the decision-making process in responding to 

Sierra Club’s administrative petition. The information presented at the meeting 

and through written submissions will help the Agency decide whether to make 

revisions to the rule and, if so, how such revisions would ensure that it 

appropriately and safely encourages resource conservation.11 

At least two-thirds of the presenters at the public meeting expressed strong 

concerns that the Agency did not adequately address Environmental Justice in the 

rulemaking. In response to these concerns, OSWER has committed to using this 

opportunity to conduct a more rigorous and thorough analysis of the 

Environmental Justice impacts of the rule. In addition, during the July 21, 2009,

National Environmental Justice Advisory Council Meeting, OSWER Assistant 

Administrator Mathy Stanislaus explained that EPA will involve all interested 

 

10 Robert B. Bullard, PhD et al., Toxic Wastes and Race at Twenty, 1987-2007, A Report Prepared for the United 

Church of Christ Justice and Witness Ministries (2007), p 52. http://www.ejrc.cau.edu/TWART%20Final.pdf.

11 A copy of the transcript of the meeting and of the written comments can be found in the public docket (Docket ID 

No. EPA-HQ-RCRA-2009-0315) at www.regulations.gov. Video of the speakers at the meeting can also be viewed 

online at http://www.epa.gov/epawaste/hazard/dsw/meeting/speaker.htm.
8

stakeholders, and particularly those who may be potentially impacted by the 

rulemaking, in the development of this analysis.

VI. How Will the Results of the DSW Environmental Justice Analysis Be 

Used?

As EPA moves forward with the initial response to the Sierra Club petition, the 

revised Environmental Justice analysis will be one of the analyses upon which the 

Agency will rely in determining whether and, if so, how to revise the DSW 

regulations. 

While the RCRA statute does not directly address Environmental Justice concerns, 

one of its core purposes is to protect human health and the environment from waste 

that “may cause, or significantly contribute to an increase in mortality or an 

increase in serious irreversible, or incapacitating reversible, illness; or pose a 

substantial present or potential hazard to human health and the environment when 

improperly treated, stored, transported, or disposed of, or otherwise managed.”

12

 

To the extent an Environmental Justice analysis reveals potential disproportionate 

effects on minority or low-income communities from discarded hazardous 

secondary material, this result could affect how EPA uses its policy discretion in 

applying specific conditions or encouraging public involvement in implementing 

the definition of solid waste regulations. For example, EPA could analyze some of 

the factors associated with potentially affected communities, such as the ability to 

participate in decision-making or receive information, and the resulting 

environmental or public health impacts from discarded hazardous secondary 

materials. 

 

12 See RCRA section 1004.
9

Part 2: Methodology

VII. Baseline Assumptions for the DSW Environmental Justice Analysis

1. The development of a hazardous secondary materials recycling 

Environmental Justice analysis will be an iterative, collaborative process 

with participation from experts both within and outside EPA and from the 

interested public.

2. One of the most critical parts of the analysis is identifying the scope of the 

analysis, including the location of potentially affected communities. Early 

public participation will be a key part of appropriately characterizing the 

potentially affected communities. 

3. At the same time that EPA is conducting the DSW Environmental Justice 

analysis and evaluating public comments on the rule, the DSW rule is also 

the subject of litigation with a wide range of parties involved.

13 EPA will 

take particular care to keep all stakeholders and parties informed about the 

analyses and the litigation and any interaction between them.

VIII. Scope of the DSW Environmental Justice Analysis

The DSW Environmental Justice analysis will primarily focus on the DSW rule 

promulgated on the October 30, 2008, which created conditional exclusions from 

the definition of solid waste. Hazardous secondary materials that meet the 

conditions and requirements of the rule are excluded from the definition of solid 

waste and, therefore, are not subject to RCRA hazardous waste regulations. A 

comparison of the RCRA hazardous waste requirements and the requirements of 

the revised DSW rule is presented in Table 1 in Section IX, and a more detailed 

description of the DSW rule can be found in Appendix A.

The DSW Environmental Justice analysis will also include a supplementary

analysis of potential Environmental Justice impacts of other pre-existing hazardous 

waste exclusions for recyclable material. Many of these exclusions, which pre-

 

13 The litigants are Sierra Club and the American Petroleum Institute (API), and the interveners are Environmental 

Technology Council, the National Mining Association, National Paint & Coatings Association, Synthetic Organic 

Chemical Manufacturers Association, Inc., American Forest and Paper Association Inc., Metals Industry Recycling 

Coalition, Alliance of Automobile Manufacturers, American Chemistry Council, American Coke and Coal 

Chemicals Institute, Treated Wood Council, Utility Solid Waste Activities Group, Edison Electric Institute, 

American Gas Association, and National Rural Electric Cooperative Association. Gulf Metallurgical has also filed a 

motion to intervene; the motion was opposed by API and, as of December 2009, the court has yet to rule on it.
10

date the 2008 DSW rule, are associated with hazardous secondary materials found 

at many of the damage cases in the record for the DSW rule. The supplementary 

analysis is discussed in more detail in Section X of this paper.

IX. Detailed Methodology Discussion

The following detailed methodology for the DSW EJ analysis reflects EPA’s 

current thinking on the analysis and is offered for the purpose of discussion. We 

plan to revise the methodology based on the feedback we receive from 

stakeholders.

Stakeholders are welcome to provide feedback on any aspect of the methodology, 

and EPA is particularly interested in obtaining information on how best to 

characterize the potential hazards associated with reclamation of hazardous 

secondary materials under the DSW rule (Step 1 of the methodology, below) and 

how best to identify and characterize potentially affected communities (Step 2).

Step 1: Hazard characterization

The hazard characterization step of the DSW EJ methodology involves two 

aspects:

(1) Properly identifying what types of hazards are associated with hazardous 

secondary materials. 

(2) Properly characterizing the likelihood of such hazards occurring under the 

DSW rule.

Types of Hazards

The best source of information on the types of potential environmental and public 

health hazards from the mismanagement of hazardous secondary materials sent to 

reclamation is the study of environmental problems associated with hazardous 

secondary materials discussed earlier. This study was prepared in support of the 

2008 DSW rule. The goal of the environmental problems study was to identify and 

characterize environmental problems that have been attributed to some types of 

hazardous secondary material recycling activities that are relevant for the purpose 

of the DSW rulemaking effort. 

Based on the environmental problems study, the most likely hazards to public 

health and the environment from hazardous materials recycling are (1) soil and/or 
11

groundwater contamination (occurring at 77% of the recycling damage cases), (2) 

abandoned materials (occurring at 33% of the recycling damage cases), (3) 

sediment and/or surface water contamination (occurring at 17% of the recycling 

damage cases), (4) air releases (occurring at 11% of the recycling damage cases), 

and (5) fires or industrial accidents (occurring at 5% of the recycling damage 

cases).14 

Stakeholders have suggested that one of the environmental hazards that the 

environmental problems study may under-report is releases of hazardous 

constituents to the air. The DSW Rule may result in exempting some facilities and 

generators from the hazardous waste facility air emission requirements.

15

 While 

these facilities would still potentially be subject to Clean Air Act regulations, it is 

possible that air emissions would increase as a result. Thus, the DSW EJ analysis 

will include in its hazard characterization an examination of this issue.

Likelihood of Hazards Occurring

The central question of the DSW EJ analysis is how likely is it that the hazards 

described above will occur under the requirements and conditions of the DSW rule. 

Table 1 summarizes some of the key differences between the hazardous waste 

regulatory requirements and the requirements of the DSW rule.

 

14 Percentages do not add up to 100% because a site may have more than one type of damage.

15 40 CFR parts 264 or 265, subparts AA, BB and CC.
12

Table 1: Comparison of RCRA Hazardous Waste Requirements 

with the DSW Exclusion Conditions16,17

Hazardous Waste

Regulation Requirements: Hazardous Waste 

Generators

DSW Exclusion Conditions: Hazardous Secondary 

Material Generators

Cannot accumulate waste for more than 90 days 

without a permit or being in compliance with the 

interim status standards.

No permit required for storage even if store for more 

than 90 days; must recycle 75% of the hazardous 

secondary material within 1 calendar year.

Must meet specific technical storage standards 

for tanks and containers.

No specific technical standards; rather hazardous 

secondary materials must be contained and not 

released to the environment.

Hazardous secondary materials must also be managed 

in a manner at least as protective as analogous raw 

materials, to the extent that there is an analogous raw 

material.

Waste must be packaged, marked and labeled

according to DOT hazardous materials 

regulations prior to transport. All hazardous 

wastes are DOT hazardous materials.

Hazardous secondary materials must be packaged, 

marked and labeled according to DOT hazardous 

materials regulations prior to transport if it is a DOT 

hazardous material based on its hazard class.

Manifest is required.

No hazardous waste manifest, but records of all offsite shipments and confirmations of receipt must be 

kept for three years.

DOT hazardous materials shipping paper requirements 

in 49 CFR Part 172 may apply if the material is a DOT 

hazardous material based on its hazard class.

Recordkeeping

o Biennial Reporting

o Exception Reporting

o Three-year record retention

Recordkeeping:

o Biennial notifications

o Records of off-site shipments & 

confirmations of receipt

o Three-year record retention

Exports

o Notice & consent

o Annual reports

o Manifesting

o Exception Reports

Exports18

o Notice & consent

o Annual reports

 

16 Hazardous wastes that are burned for energy recovery or used on the land (i.e., “used in a manner constituting 

disposal”) are not eligible for the DSW rule and remain subject to the pre-2008 hazardous waste regulations.

17 In addition to the DSW exclusions described here, the DSW rule also includes a case-by-case petition process for 

persons to obtain a regulatory determination that their hazardous secondary materials are not solid waste.

18 Exports are not eligible where the hazardous secondary material is controlled by the generator. 
13

Hazardous Waste Regulation Requirements: 

Treatment, Storage, or Disposal Facilities 

(TSDFs)

DSW Exclusion Conditions: Intermediate and 

Reclamation Facilities

Must obtain Subtitle C permit.

Must either obtain Subtitle C permit and manage 

hazardous secondary materials in the permitted units or 

must pass an audit by the generator, who makes 

reasonable efforts to ensure their hazardous secondary

material will be safely and legitimately recycled.

Must meet specific technical storage standards 

for tanks and containers.

No specific technical standards; rather hazardous 

secondary materials must be contained and not 

released to the environment.

Hazardous secondary materials must also be managed 

in a manner at least as protective as analogous raw 

materials, to the extent that there is an analogous raw 

material.

Must have emergency coordinator, test and 

maintain emergency equipment, and have 

emergency plan.

No specific DSW requirements.

OSHA requirements for emergency response plan, 

training, medical surveillance, and protective clothing 

in 29 CFR 1910.120(q) apply.

EPCRA requirements for emergency planning and 

emergency release notification in 40 CFR 355 may

also apply.

Must have personnel training plan.

No specific DSW requirements.

OSHA requirements for hazard determination, 

hazardous communications, labels, material safety data 

sheets, and employee information and training in 29 

CFR 1910.1200 apply.

Recordkeeping

o Biennial Reporting

o Exception Reporting

o Three-year record retention

Recordkeeping:

o Biennial notifications

o Records of off-site shipments & 

confirmations of receipt

o Three-year record retention

Must have financial assurance. Must have financial assurance.

The requirements and conditions of the DSW rule described in Table 1 were 

intended to prevent damages from occurring EPA included an assessment of the 

countervailing risks from the DSW rule and of the conditions that were intended to 
14

address those risks in Chapter 11 of the Regulatory Impact Analysis19 of the final 

rule; a table summarizing that analysis is included in Appendix B.

However, stakeholders have raised the question of whether the DSW rule will be 

as effective as the hazardous waste requirements in preventing damages from 

occurring. For example, under the DSW rule, hazardous secondary materials no 

longer have to meet specific storage standards for tanks and containers, but instead 

must be “contained.” Also, under the DSW rule, facilities may store hazardous 

secondary materials for more than 90 days without a permit, potentially leading to 

both longer storage times and a larger amount of hazardous secondary material in 

storage, possibly raising the risk of an accident. In addition, a hazardous waste 

manifest is no longer required to accompany the shipment, although the DOT 

standards still apply to the extent that the material is a “DOT hazardous material,” 

and shipping records must be maintained for three years. The central question is 

whether the conditions of the DSW rule increase the likelihood of the potential 

hazards (e.g., soil and groundwater contamination, abandoned materials, fires or 

other accidents) of occurring from discarded hazardous secondary material, and if 

so, by how much?

For the analyses performed for the rule, EPA assumed full compliance with these 

conditions and requirements. However, some stakeholders have argued that 

compliance with the conditions of the DSW rule may not be as high as with the full 

hazardous waste regulations because oversight procedures (e.g., inspection 

schedules) may be different. The RCRA statute includes mandatory inspections 

for treatment storage and disposal facilities; thus, those facilities are likely to take 

precedence over excluded facilities operating under the DSW rule, although EPA 

has the ability to somewhat address this issue. In addition, comments from the 

states, in particular, highlight possible difficulties in enforcing a general 

“containment” standard and a concern that facilities may not comply with the 

notification requirement, which is designed to alert regulatory authorities of the 

facility’s use of the DSW rule exclusions.

Two Possible Approaches to Hazard Characterization

Two possible approaches to hazard characterization are (1) a qualitative analysis or 

(2) a quantitative analysis.

 

19 U.S. EPA Regulatory Impact Analysis: EPA's 2008 Final Rule Amendments to the Industrial Recycling Exclusions 

of the RCRA Definition of Solid Waste September 2008 (EPA-HQ-RCRA-2002-0031-0602)
15

Under the qualitative approach, EPA would describe the above compliance and 

oversight issues in more detail to evaluate their impacts and whether they could 

result in significant public health and environmental risks to communities, and 

particularly in minority and low income communities. In addition, such an 

analysis would include a qualitative comparison of the RCRA air emissions 

controls applicable under the pre-existing hazardous waste rules as compared to the 

Clean Air Act or other controls that may apply to facilities operating under the 

DSW rule.

Under the quantitative approach, the analysis could include an assessment of 

compliance rates and whether these rates differ for hazardous waste facilities and 

excluded hazardous secondary material reclaimers and intermediate facilities. In 

addition, EPA could choose a few example facilities and model the potential extent 

of damages. For example, in the case of fires or other serious accidents (which 

represent 5% of the damage cases), EPA could use the type of off-site release 

analyses used for facility Risk Management Plans (RMPs) to characterize how 

communities might be affected by those types of hazards. In addition, EPA could 

potentially model the air emissions from the DSW facilities as compared to air 

emissions as regulated under the RCRA hazardous waste regulations. 

The quantitative approach has the advantage of providing more information than 

the qualitative approach, but it would also require more time to prepare, and the 

outcome of the quantitative approach would depend greatly on the specific 

assumptions. Ultimately EPA will need to determine, with the help of stakeholder 

input, if the additional time needed for such an analysis is worth the additional 

information that is likely to be obtained.

Possible Reductions in Hazards

In some cases, the 2008 DSW rule may result in a reduction of certain types of 

environmental and public health hazards. For example, as more hazardous 

secondary materials are sent to reclamation, the rule could result in reduced 

hazardous secondary materials sent to communities associated with hazardous 

waste landfills and incinerators, which could potentially impact communities 

around these facilities. 

There is one area that has the potential for an absolute risk reduction—hazards

from transportation. Since the 2008 DSW rule is likely to reduce (and, in the case 

of on-site recycling, eliminate) vehicle-miles traveled, transportation accidents are 
16

likely to be reduced as well.20 To the extent possible, the DSW EJ analysis will 

characterize likely reductions in hazards.

Step 2: Identification of potentially affected communities

Categories of Potentially Affected Communities

There are three main categories of communities potentially affected by the 2008 

DSW rule. 

First, there are the communities surrounding facilities that have currently notified 

that they will be operating under the 2008 DSW rule exclusion.21 As of January 

12, 2010, twenty-three facilities have submitted such a notification. (See 

Appendix C for a summary of the information on these facilities.) These facilities 

are located in New Jersey, Pennsylvania, and Iowa.22 The locations for these 

facilities are known and will be included (along with any new facilities that notify)

in the DSW EJ analysis.

Second, there are communities surrounding facilities that are currently managing 

regulated hazardous waste, but may choose to participate under the DSW rule in 

the future. Assuming full adoption of the DSW rule by all RCRA-authorized 

states, EPA estimated that about 5,600 facilities (including generators and 

reclaimers) in 280 industries and 21 economic sectors that are likely to participate. 

For the purposes of the EJ analysis, EPA would focus on RCRA permitted 

facilities that are managing recyclable hazardous secondary materials (including 

intermediate storage facilities) and will assume that all could participate in the 

 

20 As explained the preamble to the 2007 DSW proposal (72 FR 14210), EPA estimated that transportation distances 

for hazardous secondary materials that are affected by the DSW rule to be reduced from an average distance of

approximately 340 miles for disposal at hazardous waste landfills and between 400 to 520 miles for off-site 

hazardous waste recycling to 0 miles for on-site recycling (for about 9% of the affected facilities) and an average of 

approximately 50 miles for non-hazardous waste recycling (for about 91% of the affected facilities). Because, on an 

annual nationwide basis, 91% of the RCRA hazardous waste is transported by truck, transportation risk is 

predominantly roadway crash risks involving property damage crashes, personal injury crashes, or fatal crashes. 

Because of the fact that transportation accident risks positively correlate with travel distances, EPA estimated a 

minimum 85% to 90% reduction in baseline annual transport accident risk for affected materials, as a rough 

estimate, regardless of DOT regulatory status (i.e., 340 to 520 miles average transport distance baseline, compared 

to 0 to 50 miles hypothetical average post-promulgation distance).

21 For the purpose of this discussion, the term “facility” includes any entity operating under the DSW rule, including 

hazardous secondary material generators, intermediate facilities and reclaimers.

22 New Jersey and Pennsylvania are the only RCRA-authorized states which have adopted the rule. The rule is 

effective in Iowa (and in Alaska, certain territories, and Indian Country) because RCRA is federally administrated in 

those locations. 
17

exclusion. EPA will also assume that facilities that generate recyclable hazardous 

secondary materials at large enough quantities to make it economically justifiable 

will switch to on-site reclamation under the DSW rule and include those facilities 

in the analysis.

23

Third, there are communities surrounding new facilities that are not currently 

managing hazardous waste or hazardous secondary materials that may choose to 

begin reclaiming hazardous secondary materials under the DSW rule. The location 

of these facilities is unknown; the economic analysis for the final rule did not 

include any predictions on the size or locations of new recycling facilities. 

However, one question that has been raised is whether any such reclamation

facilities are likely to be smaller, with fewer resources to invest in environmental 

protection, thus increasing the likelihood of damages occurring. 

To help answer this question, EPA could use the location of the facilities in the 

damage cases as a surrogate to model the types of locations where these facilities

are likely to be found. While the facilities involved in the damage cases are 

themselves unlikely to qualify for the DSW rule (because they would be unlikely 

to pass a generator audit or obtain financial assurance), the types of facilities they 

represent would have likely been subject to the same zoning restrictions and other 

siting considerations as any new DSW facility would be.24 However, focusing on 

just facilities with environmental problems would likely skew the dataset, so these 

facilities could also be supplemented with a list of commercial non-hazardous 

industrial waste recyclers who have no reported environmental problems.

State Adoption Assumptions

Because the DSW rule is less stringent than the RCRA hazardous waste 

regulations, the rule is only effective if states and territories that are authorized to 

manage their own RCRA hazardous waste programs choose to adopt the new rule. 

As of December 2009, the rule is effective in Alaska, Iowa, Pennsylvania, New 

Jersey, many of the territories, and in Indian Country. The DSW rule is not 

effective in authorized states that do not adopt it.

 

23 One of the uncertainties of the economic analysis was whether generators would invest in on-site reclamation. 

Based on public comments, the economic analysis assumed no significant switch to on-site reclamation. However, 

of the 22 DSW notifications that have been received to date, seven (32%) are for on-site reclamation so this scenario 

will be included in the EJ analysis.

24 In addition, mapping the location of the damage case facilities will allow EPA to perform the secondary EJ 

analysis on other hazardous waste recycling exclusions.
18

However, for the purposes of the analysis, EPA will assume that all facilities in the 

groups identified above could participate in the 2008 DSW rule exclusions, 

regardless of whether the state is likely to adopt the exclusions. Although some 

states have indicated that they do not plan to adopt the exclusions, this is a decision 

that could (in theory at least) be reversed in the future, and it is difficult to predict 

which states will adopt the rule in the end. 

As a sensitivity analysis, EPA will also examine how factoring an estimate of the 

likelihood of state adoption of the rule into the DSW EJ analysis would affect the 

universe of communities that are potentially affected.

Communities With Potentially Reduced Impacts

Finally, to the extent practical, EPA will examine facilities that are potentially 

affected by the DSW exclusion because less hazardous waste will be sent there,

such as hazardous waste incinerators and landfills, and how this decrease could 

potentially reduce the environmental impact to the communities that surround 

those facilities.

Step 3:Demographics of potentially affected communities

Once EPA has modeled the locations of the facilities in potentially affected 

communities (as described in Step 2), EPA will analyze the demographics of the 

communities surrounding the facilities, including the percent people of color25 and 

poverty rates using an “areal apportionment method” for characterizing these 

communities. 26 Under this method, every census tract that is at least partially 

inside the specified distance (e.g., 3 km) will be given some weight in determining 

the characteristics of the potentially affected community. For example, if 20% of a 

census tract is captured, then 20% of its population will be used. The sum (or 

aggregate) of these apportioned populations will then be used to determine the 

characteristics of the potentially affected communities (or “host communities”). 

However, we are interested in learning whether there are other methodologies for 

characterizing communities that should also be considered as part of the analysis. 

 

25 For the purpose of this analysis, “people of color” means those persons who have identified themselves as African 

American, Hispanic or Latino, Asian or Pacific Islander, or Native American in the most recent U.S. Census.

26 The discussion of the assumptions for the areal apportionment method is based on the work of Dr. Paul Mohai and 

Dr. Robin Saha as documented in Toxic Wastes and Race at Twenty 1987-2007, A Report Prepared for the United 

Church of Christ Justice and Witness Ministries, March 2007.
19

The characteristics of the potentially affected communities will then be compared 

to the characteristics of non-affected areas (i.e., metropolitan areas that lie beyond 

3 km from a facility managing hazardous waste or hazardous secondary material). 

Finally, EPA will include a separate analysis of any facilities potentially located

within Indian Country,

27 regardless of the distance to the nearest population. 

Because the RCRA hazardous waste program is administered federally in Indian 

Country, the DSW rule is in effect there. While there are currently no facilities in 

Indian Country using the DSW rule, EPA will coordinate closely with the Tribes to 

ensure proper identification of any facilities that may take advantage of the DSW 

rule exclusion there.

Step 4: Identifying other factors that affect vulnerability in potentially 

affected communities

In order to understand the potentially affected communities better, EPA will also 

look at other factors that may impact a community’s risk profile. These include 

factors that may increase the likelihood of damages, or the likelihood that a facility 

is sited within a community, or the likelihood of health risks in the event of 

releases.

The amount of detail that the Agency will be able to capture will depend on the 

availability of time, resources and data. In most cases, these factors would be part 

of a qualitative discussion, because it may be difficult to translate many of these 

factors into actual health impacts.

Factors EPA will investigate are:

• Susceptibility of the community (e.g., higher numbers of children, 

higher disease rates);

• Ability of the community to participate in decision-making or 

receiving information (e.g., lack of information, language barriers, 

lack of social capital);

• Ability of the community to prepare for or cope with impacts (e.g., 

inability to evacuate during an emergency, such as a chemical 

accident); 

 

27 Indian Country includes: (1) all land within the limits of an Indian reservation under the jurisdiction of the United 

States government; (2) all dependent Indian communities, and (3) all Indian allotments still in trust, whether they are 

located within the reservation or not.
20

• Ability of the community to recover from environmental insults (e.g., 

lack of access to health care, lack of financial resources);

• Potential impacts with land use in the community (e.g., availability of 

recreational and other enrichment opportunities);

• Cumulative impacts, which may include all or a combination of the 

above, as well as other factors;

• Distribution of environmental burdens (e.g., location of other potential 

sources of pollution, such as Superfund sites or hazardous waste 

facilities, within the same community); and 

• Compliance rates, particularly comparing facilities subject to the 

DSW rule to facilities subjection to the hazardous waste regulations.

Step 5: Information synthesis: assessment of disproportional impact

Once the above analyses are complete, EPA will evaluate all of the information 

and make an overall assessment of disproportionate impact. A key part of this

assessment will be to properly characterize the nuances of the results of the 

analyses and avoid creating a “one-size-fits-all” expectation for such evaluations.

This step will also include consideration of the uncertainties and variability in the 

Environmental Justice analysis.

Step 6: Identification of potential preventative and mitigation strategies

After completion of the DSW EJ analysis, EPA’s next step will be to decide what 

steps might be needed to take in response. Final decisions will be made in the 

larger context of EPA’s response to the Sierra Club’s petition on the DSW rule. 

That decision-making process will take into account the DSW Environmental

Justice analysis, and EPA’s evaluation of all of the other issues that were raised at 

the public meeting and in the written comments. As part of that decision-making

process, the public will have the opportunity to formally comment on both the 

DSW EJ analysis and EPA’s tentative decision on revising the DSW rule.

This part of the DSW EJ analysis will identify potential strategies that could be 

used to prevent non-compliance with the rule and mitigate any disproportionate 

negative impacts to minority or low-income communities identified in Step 5. 

Possible options could come from a wide range of actions including, for example, 

particular revisions to the DSW rule, changes in regulatory implementation 

programs, changes in regulatory oversight programs, increased availability of 

information, and increased public participation opportunities. 
21

X. Supplementary Environmental Justice Analysis: Other Hazardous Waste 

Recycling Exclusions

The primary purpose of the DSW Environmental Justice analysis is to provide 

EPA, interested stakeholders and the public with information on the potential for 

disproportionate impacts to minority, low-income, and Tribal populations from the 

DSW rule. This information will be used by EPA as the Agency responds to Sierra 

Club’s administrative petition.

However, an Environmental Justice analysis may also look at existing 

disproportionate impacts of the pre-existing regulations, whenever such an 

examination is practical. As discussed earlier, the DSW rule does not address

existing hazardous waste recycling exclusions, most of which have fewer

conditions than the DSW rule. Many of these exclusions are also associated with 

the damage cases associated with the environmental problems study that was 

conducted in support of the rule. Table 2 includes a partial list of recycling 

exclusions that appear to be associated with at least some of the damage cases.

Table 2: Examples of Other Hazardous Waste Exclusions 

Related to Recycling

40 CFR 

Citation

Materials Affected Type of exclusion

261.2(c)(3) By-products and sludges 

exhibiting a hazardous 

characteristic

Not a solid waste 

when reclaimed –

no conditions

261.2(e) Materials used or reused as 

ingredients, as an effective 

substitute for ingredients or 

returned to the original process.

Not a solid waste –

no conditions

261.4(a)(13) Processed scrap metal, 

unprocessed home scrap metal, 

and unprocessed prompt scrap 

metal being recycled.

Not a solid waste –

no conditions

261.6(a)(3)(ii) Scrap metal that is not excluded 

under 261.4(a)(13)

Solid waste, but not 

subject to 

hazardous waste 

regulations – no 

conditions
22

40 CFR 

Citation

Materials Affected Type of exclusion

261.7 Residues of waste in “empty 

container” (e.g., a drum with no 

more than one inch of hazardous 

waste remaining)

Solid waste, but not 

subject to 

hazardous waste 

regulations – no 

conditions beyond 

the definition of 

“empty”

266.70 Precious metals used for precious 

metals recovery

Solid and 

hazardous waste–

reduced regulation

266.80 Lead acid battery Solid and 

hazardous waste –

reduced regulation

273 Universal Waste: Batteries, 

pesticides, mercury-containing 

equipment, lamps

Solid and 

hazardous waste –

reduced regulation

279 Used Oil Alternative 

regulatory structure 

for used oil

Thus, as time and resources allow, EPA also will conduct a supplementary 

Environmental Justice analysis of other hazardous secondary material recycling 

exclusions, following the same steps described above and using the information 

from the damage cases. While this information would not directly be used in 

responding to the Sierra Club petition, which addresses the 2008 DSW rule, it 

could provide information that EPA could use to make decisions about future 

efforts to improve the definition of solid waste or other provisions of the hazardous 

waste recycling regulations.
A-1

Appendix A: Description of the DSW Rule Exclusions

Under the DSW rule, EPA promulgated a conditional exclusion from the Subtitle C hazardous 

waste regulations for persons who generate or reclaim hazardous secondary materials. The 

regulation established streamlined requirements for the following hazardous secondary materials:

 Materials that are generated and transferred to another company for legitimate 

reclamation under specific conditions;

 Materials that are generated and legitimately reclaimed under the control of the generator 

(i.e., generated and reclaimed on-site, by the same company, or under “tolling” 

agreements); and

 Materials that EPA or an authorized state determines to be non-wastes through a case-bycase petition process.28

More specifically, a generator of an excluded hazardous secondary material that is transferred to 

another company for legitimate reclamation must either send it to a permitted RCRA hazardous 

waste reclamation facility or must perform an audit of the reclaimer (and any intermediate 

facilities) every three years. While the regulations contain no specific standards in conducting 

the audit, the regulations make clear that the audit documentation must demonstrate that (1) the 

reclamation is legitimate, (2) the reclamation facility (and any intermediate facilities) has 

notified EPA that they are operating under the DSW rule and that they certify they have 

appropriate financial assurance, (3) the reclamation facility (and any intermediate facilities) has 

no formal enforcement actions and is not a significant non-complier, or has otherwise 

demonstrated that the hazardous secondary material will be managed properly, (4) the 

reclamation facility has the equipment and trained personnel to recycle the hazardous secondary

material safely, and (5) the reclamation facility will safely manage any residuals from the 

reclamation operations.

The generator may use any credible evidence available in performing this audit, including 

information gathered by the generator, information provided by the reclaimer or intermediate 

facility, and/or information provided by a third party, in lieu of personally performing an 

assessment. For example, the hazardous secondary material generator might hire an independent 

auditor to review the operations, produce audit reports as a consortium of generators, or rely on 

an assessment of a recycler or intermediate facility by a parent corporation or trade association 

that is used by several generating facilities. 

The audit must also include a certification by the generator that states “I certify in good faith and 

to the best of my knowledge that, prior to arranging for transport of excluded hazardous 

secondary materials to [insert name(s) of reclamation facility and any intermediate facility], 

reasonable efforts were made in accordance with §261.4(a)(24)(v)(B) to ensure that the 

hazardous secondary materials would be recycled legitimately, and otherwise managed in a 

manner that is protective of human health and the environment, and that such efforts were based 

on current and accurate information.”

 

28 This particular exclusion will not be discussed in the Appendix since the decision on whether or not to exclude the 

material from the DSW regulations must be based on a case-by-case decision.
A-2

Reclaimers and intermediate facilities must have adequate financial assurance to ensure that 

there would be enough funds to dispose of the maximum possible volume of hazardous 

secondary material as hazardous waste in the event they could not reclaim it. This financial 

assurance could take the form of a trust fund, a surety bond, letter of credit, insurance, or a 

financial test and corporate guarantee, and must be re-calculated annually. Reclamation facilities

operating under the DSW rule are required to have sudden accidental coverage for bodily injury

and property damage to third parties for all units, and non-sudden accidental coverage (e.g., 

coverage for long-term releases to soil or groundwater) for land-based units. These facilities 

must also be able to demonstrate that they are managing the hazardous secondary materials in a 

manner that is as least as protective as that used for analogous raw materials and that any 

residuals from the recycling process will be managed in a manner that is protective of human 

health and the environment.

Similar to the way financial assurance works for hazardous waste facilities, the DSW financial 

assurance requirement does not include the costs of corrective action in the case that materials 

are mishandled unless there is an indication that such contamination exists (in which case the 

DSW facility would likely be out of compliance with the conditional exclusion and potentially

subject to the RCRA hazardous waste corrective action requirements). 

Generators, intermediate facilities and reclaimers must keep records of all shipments of excluded 

hazardous secondary materials and confirmations of receipt indicating that the hazardous 

secondary materials arrived at the reclamation facility (and any intermediate facilities). These 

records are kept at the facility and are subject to inspection, but do not accompany the shipment 

or get sent to the regulatory authority. Shipments are potentially subject to the DOT hazardous 

materials shipping requirements in 49 CFR Part 172 (which include shipping papers, labeling 

and placarding requirements). 

Generators, intermediate facilities and reclaimers also must make sure that the hazardous 

secondary material is contained, that the recycling is legitimate, and that at least 75% of the 

material is recycled annually (also known as the “speculative accumulation” condition). 

On the other hand, generators who reclaim hazardous secondary material onsite, within the same 

company, or under specific toll manufacturing agreements must meet the same containment, 

legitimacy, and speculative accumulation conditions that are required for generators who transfer 

their hazardous secondary materials to another company for reclamation.

Finally, all parties who participate in the DSW rule exclusions must first notify EPA using the 

RCRA Site ID form. This notification must include the facility information, types and quantities 

of hazardous secondary materials to be reclaimed, which exclusion they will be managed under, 

and whether they will be managed in a land-based unit. The notification information must be 

updated biennially. 
B-1

Appendix B: Historical Causes of Industrial Recycling Damages Involving Hazardous Secondary Materials

and the Definition of Solid Waste (DSW) Final Rule Conditions that Address Them

A B C D

Primary cause of historical 

recycling environmental damages

Historical 

occurrence in 

208 recycling 

damage cases 

(1982-2005)

Hazardous Secondary Materials 

Reclaimed Under the Control of the 

Generator

Hazardous Secondary Materials Transferred to 

another Facility for Recycling

1. Mismanagement of recyclables 40%

(81 cases)

 No speculative accumulation (i.e., 

75% of material must be recycled 

each calendar year).

 Materials must be contained

 Generator initially, annually & 

upon change notifies USEPA of 

offsite recycling shipments.

 Generator maintains offsite 

recycling shipment records 

(receipts).

 Legitimacy must be considered: in 

particular, Factor 3: manage DSWexcluded material as valuable 

commodity, or as analogous raw

material, or contained (40 CFR 

260.43).

Same as Column C plus:

 Generator documents that the recycler intends

to legitimately recycle the material.

 Generator documents that there is credible 

evidence recycler will manage materials safely

based on environmental violations history.

 Generator maintains offsite recycling shipment 

records.

2. Mis-management of recycling 

residuals

34%

(71 cases)

 Materials must be contained.

 Legitimacy must be considered in 

particular Factor 1: in cases where a 

hazardous component of the 

secondary material is not being 

used in the recycling process, the 

recycler is responsible for 

management of any hazardous 

residuals of the recycling process

(40 CFR 260.43).

 RCRA Subtitle C hazardous waste 

regulations still apply to residuals 

either exhibiting 40 CFR 261 

subpart C hazardous characteristics 

or meets 40 CFR 261 subpart D 

hazardous waste listing 

descriptions.

Same as Column C plus:

 Recycler has financial assurance for site 

closure.

 Generator documents that the recycler has

permits to manage residuals, or there is 

credible evidence that recycler will manage 

residuals safely.

3. Abandoned materials 14%

(30 cases)

 Materials must be contained.

 No speculative accumulation (i.e., 

Same as Column C plus:

 The generator documents that the recycler has 
B-2

Appendix B: Historical Causes of Industrial Recycling Damages Involving Hazardous Secondary Materials

and the Definition of Solid Waste (DSW) Final Rule Conditions that Address Them

A B C D

Primary cause of historical 

recycling environmental damages

Historical 

occurrence in 

208 recycling 

damage cases 

(1982-2005)

Hazardous Secondary Materials 

Reclaimed Under the Control of the 

Generator

Hazardous Secondary Materials Transferred to 

another Facility for Recycling

75% of material must be recycled 

each calendar year).

 Generator initially, annually & 

upon change notifies USEPA of 

offsite recycling shipments.

 Legitimacy must be considered; in 

particular Factor 3: manage DSWexcluded material as valuable 

commodity, or as analogous raw

material, or contained (40 CFR 

260.43).

financial assurance for site closure.

4. Fire or accident 5%

(11 cases)

 Materials must be contained.

 No speculative accumulation (i.e., 

75% of material must be recycled 

each calendar year).

 Legitimacy must be considered; in 

particular Factor 4: product of 

recycling process does not contain 

hazardous constituent 

concentrations or exhibit a 

hazardous characteristic.

(ignitability, corrosivity, reactivity, 

toxicity) (40 CFR 260.43).

[Note: Although not counted in this 

exhibit as a condition of this DSW 

exclusion, other regulatory fire and 

accident prevention requirements apply,

such as OSHA workplace standards & 

local fire codes.]

Same as Column C plus:

 The generator documents that the recycler has

equipment & trained personnel for safe 

recycling.

 Recycler must have liability insurance for 

accidents.

5. Sham recycling 3%

(7 cases)

 Legitimacy must be considered; in 

particular Factor 1: DSW-excluded 

material must provide a useful 

contribution to the recycling 

process (40 CFR 260.43); Factor 2: 

Same as Column C plus:

 The generator documents that the recycler 

intends to legitimately recycle the material.
B-3

Appendix B: Historical Causes of Industrial Recycling Damages Involving Hazardous Secondary Materials

and the Definition of Solid Waste (DSW) Final Rule Conditions that Address Them

A B C D

Primary cause of historical 

recycling environmental damages

Historical 

occurrence in 

208 recycling 

damage cases 

(1982-2005)

Hazardous Secondary Materials 

Reclaimed Under the Control of the 

Generator

Hazardous Secondary Materials Transferred to 

another Facility for Recycling

recycling process must produce a 

valuable product (40 CFR 260.43); 

Factor 3: generator & recycler 

manages secondary materials as a 

valuable commodity (40 CFR 

260.43); and Factor 4: product of 

recycling process does not contain

hazardous constituent 

concentrations or exhibit a 

hazardous characteristic (40 CFR 

260.43).

6. Unknown causes 4%

(8 cases)

Not analyzed Not analyzed 
C-1

Appendix C: Summary of Definition of Solid Waste Final Rule Notifications (as of January 12, 2010)

Under the DSW final rule (73 FR 64668), facilities must notify their regulatory authority prior to managing hazardous secondary materials under the 

DSW rule and every other year thereafter. As of January 12, 2010, EPA and states have collectively received notifications from 23 facilities. EPA is 

providing this Summary of Definition of Solid Waste Final Rule Notifications to enable public access to the information received from these 

notifications. Note: The information from the notifications is reported as it was submitted by the companies.

State # of facilities that have submitted a DSW notification

Iowa 10

Pennsylvania 8

New Jersey 5

TOTAL 23 

Facility Type # of facilities29

Generator-controlled exclusion, reclaiming onsite 9

Generator-controlled exclusion, reclaiming within same company 5

Generator-controlled exclusion, tolling 0

Transfer-based exclusion, generator transferring offsite 9

Transfer-based exclusion, reclamation facility30 3

Transfer-based exclusion, intermediate facility 0

Transfer-based exclusion, generator exporting HSM 0

Transfer-based exclusion, reclamation facility importing HSM 1

Hazardous Secondary Material Type # of facilities31

Solvents (F001-F005, D035, plus D001) 14

Electric arc furnace dust (K061) 2

Spent pickle liquor (K062) 2

WW treatment sludges; plating bath residues from electroplating operations (F006;F008) 3

Ignitable and/or corrosive (only) (D001, D002) 5

Characteristically toxic for metals (D004-D011)32 3

Other characteristically toxic (D012-D043, except D035) 1

 

29 Some facilities notified they are operating as multiple facility types and thus are counted more than once in this column.

30 Three reclaimers have notified under the rule (INMETCO Ellwood City, PA; Safety-Kleen Linden, NJ; and Veolia Middlesex, NJ). All have notified they have financial assurance.

31 Some facilities notified they are managing multiple types of hazardous secondary materials and thus are counted more than once in this column.

32 May also be ignitable or corrosive.
C-2

List of Facilities that have Notified under the Definition of Solid Waste Final Rule33:

EPA ID Name City State NAICS 

Description Facility Description

Waste codes for 

Hazardous 

Secondary 

Material

Estimated 

Annual 

Quantity

Start 

Date

IAD005286539

Iowa Mold 

Tooling 

Company Inc

Garner IA

Construction 

Machinery

Manufacturing

HSM Generator transferring 

offsite

F003;F005;D001; 

D035 60 tons Mar-09

IAD043490150

Curries 9th 

Street 

Facility

Mason City IA

Metal Window 

and Door 

Manufacturing

HSM Generator reclaiming 

onsite D001;D035;F005 5.4 tons Jan-09

IA0000990762

Iowa 

Contract 

Fabricators 

Inc

Riceville IA

Motor Vehicle 

Body 

Manufacturing

HSM Generator transferring 

offsite

F003;F005;D001; 

D035 40 tons Mar-09

IAR000007377 Siegwerk 

USA Co Des Moines IA Printing Ink Manufacturing

HSM Generator transferring 

within "same company" D001 125 tons Mar-09

IAD078096732 Siegwerk 

USA Co Des Moines IA Printing Ink Manufacturing

HSM Generator reclaiming 

onsite; Reclaimer receiving 

HSM from within "same 

company"

D001 250 tons Mar-09

IA0000362905

Curries 12th 

St NW 

Facility

Mason City IA

Metal Window 

and Door 

Manufacturing

HSM Generator reclaiming 

onsite D001;D035;F005 15.4 tons Jan-09

IAD000678094

John Deere 

Engine 

Works

Waterloo IA

Other Engine 

Equipment 

Manufacturing

HSM Generator reclaiming 

onsite D001 2 tons Aug-09

 

33 No facility has notified they are using land-based units.
C-3

EPA ID Name City State NAICS 

Description Facility Description

Waste codes for 

Hazardous 

Secondary 

Material

Estimated 

Annual 

Quantity

Start 

Date

IAD007276728

Vogel Paint 

& Wax Co 

Inc

Orange City IA

Paint and 

Coating 

Manufacturing

Managing under 

261.2(a)(2)(ii) D001;F003;F005 225,000 gal/yr

Feb-09

IAD000805168

John Deere 

Waterloo 

Works

Waterloo IA

Farm 

Machinery and 

Equipment 

Manufacturing

HSM Generator reclaiming 

onsite D001;F003;F005 100 tons Oct-09

IAD069624500

John Deere 

Des Moines 

Works

Ankeny IA

Farm 

Machinery and 

Equipment 

Manufacturing

HSM Generator reclaiming 

onsite F005 75 tons Nov-09

PAD980829287

Johnson 

Matthey

Emissions 

Control 

Technologies

Wayne PA

All Other 

Motor Vehicle 

Parts 

Manufacturing

HSM Generator reclaiming 

onsite; Reclaimer receiving 

HSM from within "same 

company"

D002;D005 530,000 

gallons Dec-08

PAD003043353

Cherokee 

Pharmaceutic

als, LLC

Riverside PA

Medicinal and 

Botanical 

Manufacturing

HSM Generator transferring 

offsite D001;D002 200 tons Jul-09

PAD087561015

International 

Metals 

Reclamation 

Company, 

Inc

Ellwood 

City PA

Nonferrous 

Metal (Except 

Aluminum) 

Smelting and 

Refining

Reclaimer receiving HSM 

from offsite

K061;K062;F006;

D001;D002;D003;

D004;D005;D006;

D007;D008;D009;

D010;D011

31,000 

tons Jun-09

PAR000519322

Johnson 

Matthey

Emissions 

Control 

Technologies

Smithfield PA

All Other

Motor Vehicle 

Parts 

Manufacturing

HSM Generator transferring 

within "same company" D002 14,000 gallons Aug-09
C-4

EPA ID Name City State NAICS 

Description Facility Description

Waste codes for 

Hazardous 

Secondary 

Material

Estimated 

Annual 

Quantity

Start 

Date

PAD002344315

Carpenter 

Technology 

Corporation

Reading PA Iron and Steel 

Mills

HSM Generator transferring 

offsite

K061;K062;F001;F0

08 5,103 tons Jul-09

PAD003025418

BAE Systems, 

Land & 

Armaments

York PA

Military Armored 

Vehicle, Tank, 

and Tank 

Component 

Manufacturing

HSM Generator transferring 

offsite D001;F003 40 tons Sep-09

PAD981037377 Triangle 

Circuits Oakmont PA

Bare Printed 

Circuit Board 

Manufacturing

HSM Generator transferring 

offsite F006 25 tons Jan-10

PAD980550412 Lonza, Inc. Conshocken PA

Medicinal and 

Botanical 

Manufacturing

HSM Generator transferring 

offsite D001;F003 3,700 tons Jun-09

NJD002338267 Aluminum

Shapes LLC Delair NJ

Secondary 

Smelting and 

Alloying of 

Aluminum

HSM Generator reclaiming 

onsite D001;F005 10,000 gallons Jul-09

NJD002182897

Safety-Kleen 

Systems, Inc 

(Linden 

Facility)

Linden NJ

Hazardous 

Waste 

Treatment and 

Disposal

Reclaimer receiving HSM from 

within "same company"; HSM 

Generator and Reclaimer of 

Imported HSM; Reclaimer 

receiving HSM from offsite

D001;D008;D018;D

035;D036;D039;D04

0;F001;F002;F003;F

005;

23,482 tons Jun-09

NJD064344575 Siegfried USA 

Incorporated Pennsville NJ

Medicinal and 

Botanical 

Manufacturing

HSM Generator transferring 

offsite D001;F003 1,700 tons Aug-09

NJD002454544

Veolia ES 

Technical 

Solutions LLC

Middlesex NJ

Hazardous 

Waste 

Treatment and 

Disposal

Reclaimer receiving HSM from 

offsite D001;F003 40 tons Sep-09
C-5

EPA ID Name City State NAICS 

Description Facility Description

Waste codes for 

Hazardous 

Secondary 

Material

Estimated 

Annual 

Quantity

Start 

Date

NJD002482545 Viking Yacht 

Company

New Gretna NJ Boat Building HSM Generator transferring 

offsite D001;F003 70 tons Dec-09