External Peer Review for EPA’s

Draft Definition of Solid Waste Final Rule

Environmental Justice Analysis

Contract No.: EP-W-10-055

Task Order EP-G11S-00004

Submitted To:

Tracy Atagi

Office of Solid Waste and Emergency Response

U.S. Environmental Protection Agency

1200 Pennsylvania Avenue

Washington D.C. 20460

Submitted by:

Eastern Research Group, Inc.

110 Hartwell Avenue

Lexington, MA 02421-3136

February 9, 2011

Printed on Recycled Paper

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Contents

Introduction..........................................................................................................................................1

Background ....................................................................................................................................1

Peer Review Process ......................................................................................................................2

Overview of Reviewers’ Comments .............................................................................................3

Responses to Charge Questions..........................................................................................................5

General............................................................................................................................................7

Ga. Please state your overall assessment of the content, readability and utility of this report, 

including any changes needed.......................................................................................................7

Gb. Is this information accurately and clearly presented? How might the document be 

improved?......................................................................................................................................9

Gc. Does the document adequately review, present, analyze and summarize the available 

data? If not, what can be improved? ...........................................................................................10

Executive Summary.....................................................................................................................11

ESa. Is the Executive Summary clear and easy to read? .....................................................................11

ESb. Does the Executive Summary provide an accurate view of the contents, findings, and 

conclusions of the analysis? If not, please specify how it could be improved............................12

1. Introduction............................................................................................................................13

1a. Does the Introduction clearly lay out the contents of the analysis? If not, please describe 

how it could be improved............................................................................................................13

2. Hazard Characterization.......................................................................................................14

2a. Do the potential scenarios under the definition of solid waste final rule clearly describe 

how EPA thinks facilities may react to the rule? If not, please suggest where 

improvements should be made....................................................................................................14

2b. Are these scenarios plausible, and are there any other likely scenarios? Please explain. ...........15

2c. Is EPA’s analysis of the types and quantities of hazards from the definition of solid 

waste final rule thorough and accurate? Please explain..............................................................16

2d. Is EPA’s analysis of the differences between hazardous waste regulations and the 

regulations in the definition of solid waste accurate? If not, please explain...............................17

3. Identification of Potentially Affected Communities ...........................................................19

3a. Has EPA correctly identified the facilities that may be likely to begin recycling 

hazardous secondary materials under the definition of solid waste exclusions? If not, 

what facilities are missing? .........................................................................................................19

3b. Is EPA’s use of a threshold of 25 tons of recyclable hazardous secondary material 

generated annually an appropriate way of identifying generators that might choose to 

recycle onsite? If not, what threshold would be more appropriate?...........................................20
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3c. Has EPA appropriately identified the communities and populations that are potentially 

affected by these facilities? In particular is the 3-km circle the appropriate area of 

consideration? Please explain.................................................................................................... 20

4. Analysis of Demographics of Potentially Affected Communities.....................................21

4a. Are EPA’s data sources for its demographic analysis appropriate? Should EPA consider 

any additional data sources for this information? Please explain............................................... 21

4b. Did EPA select appropriate characteristics for analysis of environmental justice 

concerns in communities? .......................................................................................................... 22

4c. Was the choice of the areal apportionment method to determine the characteristics of the 

communities surrounding each facility appropriate and properly conducted?........................... 23

4d. Is a statistical analysis of these results to determine how the demographic characteristics 

compare to those on a county, state, and national level, in both urban and rural 

communities, a scientifically appropriate way to assess the existence of environmental 

justice concerns in connection with this rulemaking? Are there additional methods that 

should be considered for analyzing the environmental justice concerns with this rule?............ 24

4e. Is the statistical analysis in this section properly done? ............................................................. 25

4f. Are the assumptions in the analysis presented accurately and thoroughly?............................... 26

4g. Are the uncertainties in the data input into the analysis appropriately accounted for and 

discussed?................................................................................................................................... 26

4h. Based on internal EPA review of the document, the Agency is considering additional 

approaches for analyzing the demographic data. The decision to conduct additional 

analyses will depend in part on timing and resource concerns. Which of the following 

analyses are most likely to yield new and/or improved information, and how would that 

information inform EPA’s decision-making process? ............................................................... 27

1. For the category of facilities from the damage case study, analyze the 

demographics for the timeframe the damages occurred........................................................ 27

2. Compare potentially affected areas to non-affected areas. Compare the 

demographics in the 3-km concentric areas surrounding potentially affected 

facilities to demographics of areas in the state not containing facilities, rather than 

to averages for the entire state............................................................................................... 27

3. Add comparison to host metropolitan areas for facilities situated in metropolitan 

areas....................................................................................................................................... 28

5. Other Factors that Affect Vulnerability in Communities..................................................28

5a. Has EPA accurately described the other factors that may affect vulnerability in 

communities and their relevance to this analysis? ..................................................................... 28

5b. EPA has included a discussion of five broad categories of other factors that affect 

vulnerability in communities. Based on available information, only two of those appear 

to be specifically associated with the 2008 DSW rule. Is the broader discussion helpful, 

or would it be better to focus more specifically on the factors associated with the rule? 

Please explain............................................................................................................................. 29

5c. Are there any additional factors that should be described? If so, please describe...................... 30

6. Conclusions.............................................................................................................................30

6a. Do the results of this analysis support EPA’s conclusions?....................................................... 30
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6b. Has EPA clearly and accurately explained the difference between its community-level 

analysis and its population-level analysis?..................................................................................31

6c. Please identify any additional information that would make a significant impact on the 

conclusions of this analysis.........................................................................................................31

Appendix A: Charge to Reviewers ..................................................................................................39

Appendix B: Individual Reviewer Comments.................................................................................45

Dorothy M. Daley, Ph.D. .............................................................................................................47

Deeohn Ferris, J.D. ......................................................................................................................59

Diane S. Henshel, Ph.D................................................................................................................73

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Introduction

Background

On October 30, 2008, the U.S. Environmental Protection Agency (EPA) published final revisions to the 

definition of solid waste that excludes certain hazardous secondary materials1from regulation under Subtitle 

C of the Resource Conservation and Recovery Act (RCRA), as amended (73 FR 64663). Specifically, EPA 

amended 40 CFR Part 261 to provide that hazardous secondary materials (HSMs) reclaimed under the 

control of the generator are not solid wastes if specified requirements are met. EPA also amended Part 261 to 

provide that HSMs that are generated and then transferred to another person for the purpose of reclamation, 

including exports, are not solid waste, provided that specified conditions are met. In addition, EPA finalized 

other amendments to address particular issues (e.g., established standards in Part 260 to enable a person to 

apply to EPA for a formal determination that a HSM is not discarded [i.e., non-waste] and therefore not a 

solid waste).

On January 29, 2009, the Sierra Club submitted an administrative petition to EPA requesting that the 

definition of solid waste (DSW) rule be repealed. The petition argued 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 addition, the petition disagreed with the Agency’s findings that 

the rule would have no adverse environmental impacts, including no adverse impact to minority or lowincome communities.

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 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, the Agency published the Draft 

Environmental Justice Methodology for the Definition of Solid Waste Final Rule in January of 2010. The 

methodology adheres to existing Federal and EPA-specific guidance on how to incorporate EJ into the 

Agency’s process for developing regulations and how to conduct analyses that incorporate EJ considerations.

This includes, in particular, EPA’s Action Development Process and Interim Guidance on Considering 

Environmental Justice During the Development of an Action. The methodology includes six steps, as 

described in the following table.

Summary of DSW EJ 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 2008 DSW final rule.

Step 3: Demographics of 

potentially affected 

communities

Mapping the location of the facilities modeled in Step 2 and identifying the 

demographics (e.g., minority population and income level) of the surrounding 

communities.

 

1 A hazardous secondary material is any material that would be a hazardous waste if discarded.
2

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,” 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 information 

about the 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.

After receiving the petition and communicating with stakeholders, EPA committed to conducting an 

expanded analysis of the environmental justice (EJ) impacts of the 2008 DSW final rule. This draft analysis 

is presented in EPA’s Preliminary Draft Definition of Solid Waste Final Rule Environmental Justice 

Analysis, which is the subject of this peer review.

Peer Review Process

From December 2010 to January 2011, Eastern Research Group, Inc. (ERG), an EPA contractor, organized 

and facilitated an independent letter peer review of EPA’s Preliminary Draft Definition of Solid Waste Final 

Rule Environmental Justice Analysis, following the guidelines in EPA's Peer Review Handbook, Third 

Edition (http://www.epa.gov/peerreview/). 

In the first stage of this process, ERG searched for and identified qualified candidates who, collectively, met 

the following technical selection criteria provided by EPA and who had no conflict of interest in performing 

the review: 

 Knowledge, expertise, and experience with conducting Environmental Justice analyses

 Familiarity with RCRA

 Expertise in statistics

 Familiarity with EPA’s Solid Waste Rule

After EPA confirmed that the credentials of the pool of candidate reviewers proposed by ERG fulfilled 

EPA’s selection criteria, ERG then selected three experts from this pool to conduct the review:

 Dr. Dorothy M. Daley, University of Kansas

 Dr. Deeohn Ferris, Sustainable Community Development Group, Inc.

 Dr. Diane S. Henshel, Henshel EnviroComm Consulting and Indiana University

ERG provided the reviewers with a charge prepared by EPA (Appendix A), which asked for their individual 

comments on the various aspects of the document, and with review instructions prepared by ERG. Reviewers 

were also provided with EPA's Interim Guidance on Considering Environmental Justice During the 

Development of an Action, as well as a link to EPA's web site 

(http://www.epa.gov/epawaste/hazard/dsw/rulemaking.htm) for additional background information.

Reviewers then worked independently over a four-week period to prepare individual written comments, 

which they submitted to ERG. ERG checked the reviewers’ written comments to ensure that each reviewer 

had provided a substantive response to each charge question within their area of expertise. ERG did not edit 
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the reviewers’ comments in any way, but did format reviewers’ comments as needed for consistency in this 

final peer review summary report. 

Reviewer comments are compiled by charge question in the next section and are included in this report, as 

received, in Appendix B. These comments reflect the individual opinions of the reviewers.

Overview of Reviewers’ Comments

The reviewers thought that the Draft Definition of Solid Waste Final Rule Environmental Justice Analysis

adequately reviews, presents, analyzes, and summarizes the available data.

All reviewers offered suggestions for improving the readability of the document, including adding a glossary

and list of abbreviations and acronyms, making the transition from different sections more clear, and better 

explaining the figures. Two of the three reviewers said that the potential regulatory scenarios were plausible. 

The third reviewer noted that the “unlikely” scenario of a generator switching from managing hazardous 

secondary material within the United States to exporting it for recycling under the DSW rule was not 

necessarily unlikely and thought that the potential impacts in foreign countries should be discussed. The 

reviewer also offered two additional scenarios for EPA to consider: (1) a generator that consistently functions 

in violation of the regulations and (2) a generator that goes out of business after accumulating hazardous 

secondary materials. 

One reviewer noted that the document did not include any discussion or analysis of the implications of each 

assumption for total exposure and estimated changes in risk values for the potential environmental justice 

communities. Another reviewer suggested taking the example situations and quantifying the potential impact 

on the neighboring community.

The reviewers offered suggestions for improvements, but generally agreed with EPA’s analysis of 

demographics of potentially affected communities. Two reviewers said that comparing potentially affected 

areas to non-affected areas would be useful. Two reviewers said that comparing host metropolitan areas for 

facilities would be useful. One reviewer suggested that at least one other stressor, such as TRI facilities or 

road density, should be added to the analysis. One reviewer suggested assessing the environmental justice 

impacts of the baseline (RCRA’s approach to HSM recycling and disposal).

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Responses to Charge Questions

Responses to Charge Questions

7

General

Ga. Please state your overall assessment of the content, readability and utility of this 

report, including any changes needed. 

Reviewer Comments

Daley My overall assessment is that the report manages to present a very complex decision 

making process and analysis in a fairly clear and accessible fashion. The discussion of 

potential hazards and exposure pathways seems clear and complete. The eight scenarios 

are clearly laid out. There report is quite detailed. The main points seem to be that the 

2008 Draft Solid Waste Final Rule (DSW) enables generators to store more hazardous 

secondary material (HSM) for a longer period of time, and provides no prescriptive 

standards to ensure safe containment. Transporters of waste and intermediate and 

reclamation facilities are also impacted in ways not necessarily analyzed in the initial 

consideration of the rule change. Decreased transparency and public participation 

provisions combined with deregulation of hazardous secondary material to encourage 

reclamation is likely to have differential impacts across the county. The findings from this 

report present the EPA with a challenge. Recycling hazardous secondary material presents 

significant health and environmental hazards, and the 2008 rule change is not uniformly 

health protective. According to this analysis, some communities will be more impacted 

than others, and this differential impact has direct environmental justice implications. 

To fully understand the differential impact of the 2008 DSW final rule on low income and 

minority communities and populations, it would be helpful to have a meaningful baseline 

analysis. What if continuing to regulate HSM under RCRA has even greater 

environmental justice impacts? The report and analysis do not provide that information. 

So, there is no way to identify if the 2008 DSW rule – while likely to have disproportional 

impacts – is an improvement over current reclamation and disposal practices under 

RCRA. I recognize this analysis would entail considerable work, but if HSM regulated 

under RCRA currently has even greater environmental justice impacts, then this would be 

very important to know this as decision making proceeds. 

Ferris Generally, the DSW Rule is read-able and clear.

Henshel a. Content: The environmental justice assessment process undergone was a reasonably 

thorough approach to assessing environmental justice concerns associated with the 

2008 DSW rule. However, there was a lot of repetition that seemed to involve just 

copying and pasting the same statements and phrases over and over again, and rarely 

elaborated in depth. In addition, the analysis never included taking the example 

situations (places where greater exposure by the neighbors could occur, for example) 

and quantifying the potential impact on the neighboring community (maybe within the 

3 km diameter defined “proximity to site” area). Using the basic approaches for 

predictive risk assessment, one would take the real situation, make assumptions for 

the average and high end of the range for the increased exposure situation, calculate 
Responses to Charge Questions

8

the potential increased exposure to the chemicals, and then calculate the potential for 

increased risk, with average and high end assumptions. At least one such scenario 

calculated for each situation identified as potentially increasing exposure under the 

new regulations would be helpful in determining just how critical revising the 

regulations would be. It would have been even better to then recalculate the exposure 

and risk inherent in at least a few scenarios with the assumptions made under the 

recommendations for revision of the 2008 DSW rule, weak and non-specific as those 

recommendations were. 

b. Readability. Unfortunately, this document is pretty standard for an EPA document. If 

the audience is only technical, the document is usable and readable. If the audience is 

intended to be the EJ communities and include a non-technical audience, this 

document is dense and difficult to read. There is also a lot of “spaghetti” logic –

explanations that are internally referencing without sufficient definition of terms or 

acronyms. The document is missing some key components that would make it more 

readable. These include: 

 A Glossary

 A list of abbreviations and acronyms

 Remembering to define every acronym the first time it is used in every chapter, 

and in the legend for every table.

 A few diagrammatic algorithms that could help explain two complexities:

 The regulations that apply under each condition that increases exposure under 

the new 2008 DSW. This algorithm could be bilaterally symmetrical – taking 

the reader through the process, and when there is a change that occurs due to 

the regulations, the algorithm can identify the regulations in play and not in 

play for each set of exposure conditions (as in longer stored waste materials, 

transport exposure, etc). One side of the symmetrical algorithm would 

identify regulations in play before the new 2008 DSW regulations, and the 

other side would identify the regulations in play after the new 2008 DSW 

regulations.

 A second algorithm that would be useful would be to outline the framework, 

the process used to analyze the environmental justice concerns about the 2008 

DSW rules. This algorithm could then tersely identify each step in the 

process and the implications for the outcomes of each step.

c. Utility. This analysis and report does demonstrate that there already is a bias in the 

location of the facilities that already produce hazardous waste, and this includes a bias 

in the facilities that might utilize this rule to increase storage time and volume of 

exempted otherwise hazardous materials. The environmental justice analysis could 

have been more complete. Further discussion of other approaches are included below. 

The report does make reasonably recommendations for some of the ways that the 

environmental justice concerns might by reduced, although the discussion of these 
Responses to Charge Questions

9

abbreviated comments was both vague and needed elaboration. 

Gb. Is this information accurately and clearly presented? How might the document be 

improved?

Reviewer Comments

Daley For the most part, the information in the report is clearly presented. There are, however, 

some areas that could be improved. While Figure 1 is informative, the other figures in the 

report make little sense to me. They either need additional explanation, or they should be 

removed. Figure 4.41.1 is an example of the type of bar chart that can be confusing. 

Perhaps if the base category of Whit/Non-Hispanic was added, the figure would make 

more sense. As it is now, these figures detract rather than add to the report. 

Why are urban and rural comparison omitted for the damage case facilities? Consistent 

analysis across categories is important. If the analysis cannot be performed for some 

reason, an explanation in the text would be helpful. 

A list of acronyms would be extremely helpful. Also, there are also several typos and 

minor mistakes that should be addressed. These include: 

(1) Page iv – under the hazardous waste baseline, second row, “recycles” should be 

changed to “recycling”

(2) Page 2, sec 1.3, bullet 1 – “HSMHSMs” should be changed to “HSM”

(3) Page 10, top of the page: “as a focus” is written twice. One occurrence should be 

deleted. 

(4) Page 81, section 4.2.3 – “area” should be added after “a 3 km”

(5) Page 91, section 4.42 – lists 219 damage case facilities. There are only 217 

reported in the analysis. Either explain the missing cases, or fix a typo. 

(6) Attachment A, page A-2, section 1. Toward the end of the first paragraph, should 

read “regulation if” not “regulation is”. 

Ferris Generally, information in the DSW Rule presented is clear and appears to be accurate.

Henshel a. Needed improvements for clarity: As mentioned above, it would be very helpful for 

the general reader to provide a Table of Abbreviations/Acronyms and a Glossary, in 

addition to remembering to follow some other basic rules of clear communication as 

outlined above (Readability). In addition, the excessive use of acronyms makes the 

document very hard for any lay reader to read. It makes the document hard to read for 

even an expert, as one must constantly look for the meaning of the new acronyms that 

pop up pages after they have been defined. It would be helpful, should the acronyms 

stay in such a density, to provide a list of acronyms used on each page in a footnote at 
Responses to Charge Questions

10

the bottom of each page.

b. The Wind Dispersal category would be better (and less confusingly) labeled as 

“Particulate [or Dust] Wind Dispersal.”

c. There is no need to repeat the exact same phrases multiple times without additional 

elaboration.

d. In no scenario was there a consideration of generators who consistently function in 

violation of the regulations once they start handling waste under the 2008 DSW rule. 

As there are such companies, this would seem to be a scenario to include, or at least 

discuss, in an EJ analysis. 

e. No scenario considered the possibility of the impact on the community if a generator 

acting under the 2008 DSW rules goes out of business with accumulated, nonprocessed, possibly not appropriately contained excluded hazardous material waste on 

the property. Yet this situation would only happen (legally) under the 2008 

regulations, not under the previous HSM regulations. 

f. The methods for analysis of environmental justice impacts (as in biases in the siting) 

are not as sensitive as might be obtained with using regression analysis and grouping 

the data into maybe quartiles rather than doing all analyses on data that has only been 

divided into two categories (ie equivalent of yes/no data).

Gc. Does the document adequately review, present, analyze and summarize the available 

data? If not, what can be improved?

Reviewer Comments

Daley It seems like the document is quite thorough. As noted in my response to question Ga, the 

document would be improved by a assessing the Environmental Justice impacts of the 

baseline – or RCRA’s approach to HSM recycling and disposal. 

Ferris The DSW Rule is an extensive document with significant analysis and extensive data.

Henshel a. This is a nice review of the data. This is a nice first analysis. Improvements can be 

made. This question is a perfect example of the redundancy that could be avoided.
Responses to Charge Questions

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Executive Summary

ESa. Is the Executive Summary clear and easy to read?

Reviewer Comments

Daley Considering the complexity of the document, the Executive Summary is relatively clear 

and easy to read. The “Summary of Potential Impacts” is very helpful. It is important to 

note, however, that the findings in the executive summary are not properly numbered: the 

executive summary lists findings 1, 3, and 4, omitting 2. The table and paragraph 

describing “Community Level Analysis of Potential Disproportionate Impacts” is difficult 

to follow. It would be helpful if the Environmental Protection Agency (EPA) could 

identify and describe the four types of facilities in this analysis more consistently. For 

example, the text on page vii could be edited to include the following language connecting 

the text to the community analysis tables: 

 The second step of the methodology identified facilities that can represent the 

facilities that are likely to take advantage of the 2008 DSW final rule. These 

facilities are grouped into four different categories: (1) facilities that have already 

notified under the 2008 DSW final rule[Notification facilities], (2) hazardous waste 

facilities that are likely 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) to use the rule 

[Hazardous Waste Facilities], (3) facilities from the environmental problems study 

(many of which operated under exclusions or reduced regulations)[Damage 

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 [Non-Industrial Hazardous Waste Facilities].

It is difficult to understand where the categories in the Table on page X come from. They 

should be clearly labeled in the text and - table categories: the ordering in the text and the 

table should be consistent. Also, it would be helpful to define “damage facilities”. 

Ferris The Executive Summary is very clear and readable. 

The material is complex and dense which is to be expected in an agency rulemaking. 

Readers reviewing the synopsis of the Sierra Club petition in this summary (or, in the 

relevant section below) would be informed by an abbreviated specific list of issues 

identified by the Club (instead of the more generalized “”raised a number of issues about 

the protectiveness of the rule...’ -- especially since the language of the rule emphasizes 

that a number of commenters “echoed”...concern...”

Summary of DSW EJ Methodology is clear and concise with a couple of exceptions. The 

term “damages” in Step 4 could be explicitly defined. Presumably, the language that 

follows the term “damages” is explanatory but that is somewhat unclear. 
Responses to Charge Questions

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Does “Information” in Step 5 include data? Perhaps strengthening the language to “Data 

and Information...” is more supportive of the Agency’s rationale.

Henshel a. The executive summary is readable. The executive summary needs to include 

definitions of terms used (for example, “notification facilities,” “damage case 

facilities,” etc). In addition, the last sentence on page ix (starts “In addition,...”) is 

unclear and needs rewriting. Similarly the last sentence on page xi needs additional 

clarity. The summary of Finding 4 should include some discussion of the other three 

categories not discussed in the executive summary (example, susceptible populations). 

You might include leaking septics in the list on the top of page xiii (under multiple and 

cumulative effects), as leaking septics are more likely to be addressed more slowly, 

and thus pose a higher health risk, in low income communities.

ESb. Does the Executive Summary provide an accurate view of the contents, findings, 

and conclusions of the analysis? If not, please specify how it could be improved.

Reviewer Comments

Daley Yes, the Executive Summary provides an accurate summary of the more detailed material 

presented in the report. 

Ferris The “Summary of Potential Impacts...Under Different Recycling Scenarios” is clear 

however the accuracy of the presumptions is challenged by the language on its face. 

Pursuant to Hazard Characterization, EPA demonstrates and discusses the highly 

hazardous nature of the 2 main sources of reclaimed hazardous secondary materials 

(hereafter HSM) upon which much of the Draft DSW Rule analysis is based in addition to 

the storage hazards including leaks, fires and explosions. Container standards do not 

appear to compare with the highly hazardous nature of the 2 main sources upon which 

much of the Draft DSW Rule analysis is based. 

The Scenarios chart shows several instances involving movement or activity related to 

HSM where it appears that various historic RCRA safeguards are not required see e.g., 

certain scenarios under Scenario 3; Scenario 5; Scenario 6; Scenario 7; Scenario 8) 

without, it could be said, on balance, assuring a regulatory atmosphere that influences the 

regulated community to handle HSW in ways that prevent hazards. Comparatively, 

streamlined notice and recordkeeping would both facilitate emergency planning and 

response and protect human health and the environment. 

The benefits (per language in the Scenarios) don’t balance the potential negative impacts. 

This could be more clearly set forth or demonstrated. Although the reviewer does not 

express agreement that any benefits would offset the potential hazards or actual hazards, 

more clarity or quantification of benefits would strengthen the analysis.

Does EPA plan to establish a definition or explanation of what constitutes legitimate 

recycling and/or recycler-facility? This could serve as notice to generators, receivers, 
Responses to Charge Questions

13

recyclers that the exemptions and exclusions are accompanied by affirmative duties that 

include compliance with statutes and regulations?

Regarding DSW Rule controversies about disproportionate negative impacts and 

exposures, would these communities feel more protected (versus adding to the burden of 

already cumulative pollution) if HSW were handled similar to those substances 

categorized under Universal Wastes?

Henshel a. See above comments. But yes, the Executive Summary does provide a reasonably 

accurate view of the findings and conclusions of this analysis.

1. Introduction

1a. Does the Introduction clearly lay out the contents of the analysis? If not, please 

describe how it could be improved.

Reviewer Comments

Daley Yes, the Introduction is clear. It is easy to follow and well organized.

Ferris Summary of DSW EJ Methodology is clear and concise with a couple of exceptions. 

The term “damages” in Step 4 could be explicitly defined. Presumably, the language that 

follows the term “damages” is explanatory but that is somewhat unclear. 

Does “Information” in Step 5 include data? Perhaps strengthening the language to “Data 

and Information...” is more supportive of the Agency’s rationale.

Readers reviewing the synopsis of the Sierra Club petition would be informed by an 

abbreviated specific list of issues identified by the Club (instead of “raised a number of 

issues about the protectiveness of the rule...” 

1.3 minor typo -- see “HSMHSMs”

In view of the complexity of what is explained, Scenarios are clear.

In addition to the advantage of adhering to RCRA’s decades old cradle-to-grave protective 

framework, consider whether requiring a streamlined notice and record-keeping process 

for generators, receivers and recyclers of HSM benefit EPA and states e.g., monitoring, as 

well as data that shows the environmental and economic benefits of HSW exclusions?

The threat of post facto CERCLA liability is not interchangeable with up-front 

environmental protection standards and requirements. This reviewer does not presume that 

the entire regulated community is villainous; however, any vigor/rigor that a generator, 

receiver, recycler might invest in environmental protection could wane as oversight and 
Responses to Charge Questions

14

compliance requirements are reduced or eliminated. 

Henshel a. No complaints.

2. Hazard Characterization

Question 2 Introductory Remarks

Reviewer Comments

Ferris The transition to this section should be clear. It’s not clear that this section is distinct from 

the prior rule discussion (the “Introduction”). This is a graphics issue.

The discussion of hazards associated with mainly the 2 selected vectors is clear. Hazards 

are extensive in contrast to reducing the levels of regulatory oversight provided by RCRA. 

Should all 4 legitimacy factors should be mandatory in view of the hazards? What about 

release reporting? Should releases be grounds for losing exclusion and HSW status? How 

is a significant release determined?

In view of the stated hazards, could managing HSW as a valuable commodity influence the 

generator, receiver, recycler and affect compliance? This goes to the concept of legitimacy. 

Would the mandating a showing of economic value militate in favor of safeguards against 

releases, spillage?

If wastes that are going to be recycled as hazardous as wastes that are not recycled, are both 

equally likely to be mishandled? Are the regulatory and enforcement tools provided by the 

DSW Rule commensurate with the task of ensuring compliance?

2a. Do the potential scenarios under the definition of solid waste final rule clearly describe 

how EPA thinks facilities may react to the rule? If not, please suggest where 

improvements should be made. 

Reviewer Comments

Daley Yes, the scenarios clearly define how EPA thinks facilities may react to the rule. Table 2.1 

is particularly useful in outlining the baseline and potential changes based on the DSW 

Exclusions. I would however, like to know how the EPA developed these scenarios. Are 

these based on professional experience, or did the agency talk with the regulated 

community to get a sense of potential reactions to the DSW Exclusions? If it is the latter, 

could the report provide more detailed information regarding the feedback from the 

regulated community? If it is the former, it would add value to outline some of the ways 

in which that experience shaped the discussion / selection of the scenarios. 
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15

Ferris The description of potential scenarios is clear. 

The chart situated in the “Overview” section, which describes the 3 relevant exclusions is 

clear and concise. The applicability of RCRA (or not) is readily discernible from the 

scenarios.

Henshel a. What is lacking overall from the analysis, from the Hazard Characterization step 

onward, is any discussion or analysis of the implications (i.e secondary consequences) 

of each of these assumptions (about the possibility of increased exposure) for total 

exposure and estimated changes in risk values for the potential EJ communities (ie 

those communities within 3 km of each facility, according to this report).

2b. Are these scenarios plausible, and are there any other likely scenarios? Please explain. 

Reviewer Comments

Daley These scenarios seem plausible. They are described in clear and logical detail. 

Ferris The Scenarios are plausible. 

Is there a significant possibility that small businesses could be more vulnerable to sham 

recycling if many won’t have the capacity and staffing to thoroughly assess recyclers?

The DSW Rule could inadvertently encourage mismanagement while transitioning 

materials into the recycling stream. Does the Rule apply where HSW is recycled into even 

more toxic products? 

Should notice be the hazard quid pro quo for the exclusions which provide the benefit of 

different (reclamation), streamlined treatment of HSW?

Without adequate record-keeping and environmental protection safeguards (streamlined 

requirements would not be objectionable), the international export exclusion/scenario is 

troubling re potential releases, impacts, whether or not the recipient nation has genuine 

knowledge of the contents and consents to the receiving the export; see e.g., Circle of 

Poison and pesticide regulation. 

Henshel a. “Unlikely” scenario 1: If the cost of recycling off-shore (Africa, China) are low 

enough, these lower costs will offset the additional costs of transportation to get the 

now excluded hazardous waste (which costs less also as an excluded waste, and one 

for which the same expensive containers do not have to be bought). This is a 

reasonable scenario (not unlikely) unless the EPA provides calculations to prove that 

the costs of transportation would never be overcome by the reduced costs of recycling 

in Africa or China. It is also disturbing that there is insufficient discussion and 

analysis of EJ concerns for the locations of the recycling plant and no discussion and 

analysis of EJ concerns for the locations where recycling is carried out in another 
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16

country. (This last sentence applies as well to the whole report.)

b. Two other possible scenarios to address are listed above under “general comments”.

2c. Is EPA’s analysis of the types and quantities of hazards from the definition of solid 

waste final rule thorough and accurate? Please explain.

Reviewer Comments

Daley Yes, EPA’s analysis of the types and quantities of hazardous secondary material is clear. 

Figure 1 provides a clear justification for the focus on solvents and electric arc furnace 

dust. As mentioned earlier, it would be helpful if the report clarified the definition of a 

damage case or damage facility. As noted on page 10, the analysis highlights solvent 

wastes because of their prevalence in damage cases. A definition and some references to 

RCRA damage cases would be helpful, even if provided in a footnote. 

Ferris The selection of electric arc furnace dust and solvent wastes as national HSM proxies 

appears sound based on the analysis. Excluding used oil, non-ferrous metals and scrap 

metals from the hazard analysis, although associated with “damages cases?” 

How and when does enforcement after a “significant” release occur? How is the 

determination made as to what constitutes a significant release? Which party has the 

burden of proof? It would seem that placing the burden of proof on the party that causes 

or is responsible for the release should bear the burden of proof opposed to, for example, 

the governmental entity. 

Intervening prior to a release is clearly preferable – the possibility of enforcement action 

prior to a release would be protective and more likely in the event that there are clear 

regulations e.g., storage limitations, labeling requirements and requirements related to the 

integrity of storage containers and areas.

Does worker training (e.g., protection standards, labeling, handling) or the lack of it at 

relevant/specified facilities factor into the EPA hazard analysis?

Does emergency response and planning, the existence or lack of these programs, factor 

into the EPA hazard analysis? Similarly, does eliminating the requirement for a Manifest 

(or some version of a tracking mechanism) factor into possible increases or reductions in 

the emergency response preparedness and planning, enforcement or compliance 

monitoring? 

Would streamlined, but standardized HSW reporting on a Manifest or comparable 

document be feasible, e.g., for state and local government, the industry?

Compliance with financial assurance can be a high hurdle given conditions imposed by the 

environmental insurance market. All parties under this rule should be required to comply 

with financial assurance. Would requiring management standards for reclamation facilities 

that don’t have RCRA permits strengthen the DSW Rule by increasing or reducing the 
Responses to Charge Questions

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potential for environmental releases and/or disproportionate negative impacts?

Does the EPA hazard analysis factor imposition (or not) of container integrity and 

container management standards into the determination of the potential or actual hazards 

associated with higher storage volumes, and/or higher concentrations of HSW? What 

constitutes a safe “container?” Does the analysis factor in whether making storage subject 

to controls, environmental monitoring and inspections increases or reduces community 

protection?

Intermediate facilities and off-site HSM self policing may not be effective as a means to 

ensure protection of health and the environment in communities whether 

disproportionately affected or not.

Henshel a. Toxicity information: When applicable, endocrine disruption toxicity is not even 

mentioned. Developmental toxicity of heavy metals would also seem to be an 

important, very sensitive effects indictor to mention.

b. p 19 top of the page. There isn’t mention of fugitive emissions (leaks at valves, escape 

at points of transfer) as part of the way in which hazardous materials/waste can be 

released.

2d. Is EPA’s analysis of the differences between hazardous waste regulations and the 

regulations in the definition of solid waste accurate? If not, please explain. 

Reviewer Comments

Daley It seems as if EPA has noted many of the differences between hazardous waste regulations 

and the changes stemming from the 2008 Draft Solid Waste (DSW) Final Rule. Table 2.3 

is a very detailed description of the eight likely scenarios and their impact on generators, 

transporters, and intermediate reclamation facilities. This material clearly communicates 

that there is likely to be substantial changes in the accumulation and storage of hazardous 

secondary material (HSM). 

Ferris The threat of post facto CERCLA liability is not interchangeable with up-front 

environmental protection standards, notice and record-keeping requirements. Streamlined 

record, keeping, tracking and monitoring would contribute to ensuring that toxic wastes 

are not dumped illegally dumped in disproportionately affected communities and would 

contribute to ensuring that HSW is safely delivered to the recycling facility.

The DSW Rule could be characterized, to some extent, as industry self-certification on 

HSW, which contrasts sharply with RCRA’s historic cradle-to-grave framework and 

preventative approach to hazardous waste management and disposal.

Generators and third party reclaimers must file notices – they should be required or the 

HSW should be treated as hazardous waste.
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Audits of reclaimers are not the same as or superior to periodic inspections or other agency 

oversight. 

Henshel Detailed Comments to Improve Writing:

a. Page 3 Inset. Typo or residual undeleted “(“ in explanation for Generator-Controlled 

Exclusion.

b. Section 2.3 p 30, third paragraph down – This paragraph needs rewriting to make it 

clearer. A particularly difficult sentence is sentence 3, and the logic between sentences 

3 and 4 may be faulty. If a material’s reporting quantity is lower when it is 

characterized as hazardous waste then if it is characterized as non-waste, as written in 

sentence 3, then a smaller quantity would be needed before it exceeds the reportable 

quantity as a hazardous waste compared to as a non-waste, not a larger quantity (as 

currently written in sentence 3). But this does mean that if the implementation of the 

DSW results in what would otherwise be considered hazardous waste being now 

considered non-waste, then indeed more of the same material (now classified as “nonwaste”) would be required to trigger reporting requirements then would have been true 

if the material were classified as hazardous waste.

c. P 32, end of second full paragraph. A “reasonable” effort is not defined or discussed. 

Without such discussion or clarification, a “reasonable” effort remains so open to 

interpretation that a phone call to the foreign facility owner and asking for assurances 

of safety would more than satisfy that requirement, and yet not provide any real 

assurance that the community and workers in the foreign facility would be protected 

from hazardous exposures.

d. p 32 end of the second bullet there’s a typo, a misplaced period.

e. As an example of a need to define terms and abbreviations, K061 is used in the 

footnote on page 27 (footnote 25) without any explanation of the meaning of the term.

f. When requirements or criteria are referred to, it is important to specify and list those 

requirements or criteria, in the text, a footnote, or an inserted box. An example of such 

a referral to insufficiently explained and detailed requirements are on the top of page 

28. The details about the “SQG” requirements are lacking.

g. The discussion about reportable quantities (second full paragraph down on page 30) 

needs to be written more clearly. The third sentence in that paragraph is particularly 

problematic.
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3. Identification of Potentially Affected Communities

Question 3 Introductory Remarks

Reviewer Comments

Ferris The transition to this section should be clear. It’s not clear that this section is distinct from 

the prior rule discussion. This is a graphics issue.

Does the large number of damages cases support granting the transfer-based exclusion?

Diversion of materials from the waste stream is beneficial (although on it face, without 

safeguards, reclamation falls short of environmental justice) and should be accompanied by 

adequate protections for health and the environment.

3a. Has EPA correctly identified the facilities that may be likely to begin recycling 

hazardous secondary materials under the definition of solid waste exclusions? If not, 

what facilities are missing?

Reviewer Comments

Daley EPA’s approach to identifying facilities that are likely to begin recycling hazardous 

secondary material seems reasonable. I cannot think of another category to include. Out of 

the categories presented (already notified; damage facilities; currently generating 

hazardous secondary material, and facilities that may easily expand or switch to 

reclamation because of the DSW final rule), the last three categories seem more useful to 

understanding likely environmental justice impacts. With only 40 facilities providing 

notification at the time of the report, it is likely that “street level” implementation will be 

driven by the larger population of facilities rather than early adopters. 

Ferris Are the facilities that gave notice located; in disproportionately affected communities or 

not? The recycling exclusions should not exacerbate impacts or exposures in these 

communities. A troubling compliance history could signal future endangerment of the 

health and the environment.

Henshel no comment, outside this reviewer's area of expertise
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3b. Is EPA’s use of a threshold of 25 tons of recyclable hazardous secondary material 

generated annually an appropriate way of identifying generators that might choose to 

recycle onsite? If not, what threshold would be more appropriate?

Reviewer Comments

Daley I cannot comment directly on whether or not the annual marker of 25 tons of recyclable 

material is appropriate. The report provided limited justification for this cut off point, and 

while it seems reasonable, someone with more applied experience in waste management 

and reclamation may think otherwise. 

Ferris Is the 25-ton threshold empirical?

Henshel no comment, outside this reviewer's area of expertise

3c. Has EPA appropriately identified the communities and populations that are 

potentially affected by these facilities? In particular is the 3-km circle the appropriate 

area of consideration? Please explain.

Reviewer Comments

Daley EPA is defining a community as a 3 kilometer circle or buffer around one of the facilities 

included in this analysis. The agency then uses census information to apportion socioeconomic and demographic ratios within this radius. This method is superior to simply 

using standard census divisions such as census tracts, blocks, or even zip code 

aggregation. The operational definition of “a community” is challenging and the 

environmental justice literature has numerous empirical studies at different levels of 

analysis, sometimes providing conflicting and competing results. Thus, using a measure of 

community with stronger measurement validity is important. Like all measurements, this is 

not a perfect representation of “a community”, but it is a much improved measure over 

more traditional approaches, i.e., studies that rely upon preexisting census designations to 

ascertain community characteristics. Increasingly, a 3 kilometer radius is becoming a 

standard approach to improving the precision of community measures in environmental 

justice and public health research. The report however, could be edited to more clearly 

explain this approach. The text on Page 80 and 81 should be streamlined. First, the agency 

should suggest that the 3 km buffer is reasonable given the potential for acute exposure 

from accidental releases. Then, this should be followed by a discussion of the area 

apportionment method. As it reads now, it is a bit confusing. 

Ferris EPA synchronizes with Professor Paul Mohai and Professor Robin Saha who are doing 

cutting edge demographic analysis. Their work shows increasing disproportionality, for 

example, nationally, people of color now make up the majority of those living within 3-km 

of such facilities and that where facilities cluster they make up over two-thirds. These are 

the highest concentrations of people of color ever reported from a national study of the 
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21

distribution of hazardous waste facilities. Furthermore, when applying their recommended 

statistical analysis, it was found that racial disparities persist even when controlling for 

socioeconomic factors such as income, housing values, education, and employment status.

Henshel a. Other environmental justice analyses have used other diameters to define the 

proximate neighborhoods. On studies of Indianapolis, especially, we have tested multiple 

diameters (all smaller than 3 km – 0.5, 1 and 2 km) and typically found 2 km to be a good 

cut-off to define proximate communities. It would seem that this question should be 

answered in the study, that is, that the study design would test multiple possible diameters 

(or donuts) around the facilities and determine which diameter provides the most sensitive 

distinction. It is quite possible that different types of facilities would have different cut-off 

diameters, based on differences in potential for dispersal/distribution of (excluded) 

hazardous waste (i.e. as liquid solvent waste or dust).

b. Other problems:

In conducting similar EJ analyses, using TRI facilities, we discovered that we had to 

truthed the facility addresses to the GPS coordinates by on the ground determination of 

whether the address listed for the facility was actually the address of the releasing facility 

or the address of company offices. Even when the two buildings were on the same 

campus, and not separated by miles, the difference between the buildings (between the 

addresses) could be a significant distance (on a mile long campus, they could be a mile 

apart), and thus could affect which neighborhoods were included in the proximate circle. 

From the information provided in chapter 3 about the methods used for obtaining GPS 

coordinates, it appears that this truthing was never done or even attempted for this 

analysis. No efforts were apparently made to ascertain whether the listed address referred 

to the hazardous materials processing location or to the main offices.

4. Analysis of Demographics of Potentially Affected Communities

Question 4 Introductory Remarks

Reviewer Comments

Ferris The transition to this section should be clear. It’s not clear that this section is distinct from 

the prior rule discussion. This is a graphics issue.

4a. Are EPA’s data sources for its demographic analysis appropriate? Should EPA 

consider any additional data sources for this information? Please explain.

Reviewer Comments

Daley The census data that the EPA uses for this analysis is standard. Improvements would 

include relying upon the 2010 census numbers to more accurately reflect community 
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22

composition. If possible, it would be ideal to be able to rely upon the American Community 

Survey (ACS) to obtain more detailed and temporal information on community change. 

However, I am not sure that the sample size for the ACS are adequate for this facility based 

approach. It may be that by drilling down to the facility level and relying upon survey 

rather than census data, introduces too much variability. 

Ferris EPA synchronizes with Professor Paul Mohai and Professor Robin Saha who are doing 

cutting edge demographic analysis. Their work shows increasing disproportionality, for 

example, nationally, people of color now make up the majority of those living within 3-km 

of such facilities and that where facilities cluster they make up over two-thirds. These are 

the highest concentrations of people of color ever reported from a national study of the 

distribution of hazardous waste facilities. Furthermore, when applying their recommended 

statistical analysis, it was found that racial disparities persist even when controlling for 

socioeconomic factors such as income, housing values, education, and employment status.

Henshel a. Using census data is standard protocol for many EJ analyses.

4b. Did EPA select appropriate characteristics for analysis of environmental justice 

concerns in communities? 

Reviewer Comments

Daley Yes. The EPA has selected appropriate characteristics to analyze in this report. I think it 

would be a stronger analysis if along with “children under five”, “adults over 65” were 

included in the detailed analysis in chapter 4. Given the demographic transitions of the 

baby boomers into an elderly population, it will become more critical to understand 

differential exposure for susceptible populations at both ends of the spectrum. 

Ferris Is the preventative approach a reasonable starting point when evaluating harm to the 

environment and public health.

Without RCRA status or Treatment, Storage and Disposal (TSD) protections, communities 

will many facilities are not required to get a permit, provide notice and opportunity to 

comment, address public input, monitor or be subject to protective container standards or 

storage time limits. These are baseline historic protections that, while they do exist, as 

regards most environmental statutes, they haven’t been updated to reflect the “real world” 

since original passage. 

Furthermore, taking advantage of existing public participation mandates commonly 

requires a massive investment of usually volunteer community resources to engage in a 

process that is time consuming and expensive and in which, comparatively, the private 

sector and government stakeholders have extensive resources and dedicated staff. 

Have either the absence of these protections or the “real world” limitations on a 

community’s ability to publicly participate been evaluated as an impact upon low income 
Responses to Charge Questions

23

communities and communities of color?

Notice requirements inform communities, the public and municipalities about how HSW is 

being managed and recycled. How would the public learn about releases, spillage without 

notice, monitoring, recordkeeping; how would they advocate safeguards or alternatives? 

Streamlined requirements would be preferable to none.

In disproportionately affected communities, the issue is not whether there will be impacts; 

rather the issue is what the full extent of the hazard impacts will be. 

Should recyclers be required to demonstrate a history of compliance prior to benefiting 

from the exclusions? Are the facilities that gave notice disproportionately located in low 

income and communities of color?

Potential impacts associated with transportation of HSW warrant a closer look.

Henshel a. The same methods and break outs should have been carried out for all analyses. There 

should not have been different protocols and analyses used for some types of facilities 

and not for others. There should have been a break out of asian, black, other minority, 

and possibly immigrant populations for all facilities.

4c. Was the choice of the areal apportionment method to determine the characteristics of 

the communities surrounding each facility appropriate and properly conducted? 

Reviewer Comments

Daley Yes, it is fine. It would be beneficial to have some discussion of the assumption behind this 

method. As noted on Page 80, the areal apportionment method assumes all populations are 

equally distributed in the block or block group. This assumption will not hold in practice. 

Therefore, some indication of how this assumption influences the analysis would be useful. 

Given the population distribution in the nation, how might this assumption bias the 

analysis? I am not suggesting that the agency change their approach, only that they 

articulate the implication of this assumption. 

Ferris EPA synchronizes with Professor Paul Mohai and Professor Robin Saha who are doing 

cutting edge demographic analysis. Their work shows increasing disproportionality, for 

example, nationally, people of color now make up the majority of those living within 3-km 

of such facilities and that where facilities cluster they make up over two-thirds. These are 

the highest concentrations of people of color ever reported from a national study of the 

distribution of hazardous waste facilities. Furthermore, when applying their recommended 

statistical analysis, it was found that racial disparities persist even when controlling for 

socioeconomic factors such as income, housing values, education, and employment status.

Henshel a. It appears, yes.
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24

4d. Is a statistical analysis of these results to determine how the demographic 

characteristics compare to those on a county, state, and national level, in both urban 

and rural communities, a scientifically appropriate way to assess the existence of 

environmental justice concerns in connection with this rulemaking? Are there 

additional methods that should be considered for analyzing the environmental justice 

concerns with this rule?

Reviewer Comments

Daley Yes. A statistical analysis of these results is an appropriate method to understand patterns 

in administrative and community level data. These patterns can reflect social and 

environmental disparities and the EPA can consider these patterns for future decision 

making. Note however, that the analysis presented in Chapter 4 did not include a 

comparison between community (3 km buffer area) and county level characteristics. State, 

national, and urban and rural were examined, but county information was not analyzed in 

this section of the report. County level information and analysis would have added value to 

this report. 

Ferris EPA synchronizes with Professor Paul Mohai and Professor Robin Saha who are doing 

cutting edge demographic analysis. Their work shows increasing disproportionality, for 

example, nationally, people of color now make up the majority of those living within 3-km 

of hazardous waste facilities and that where facilities cluster they make up over two-thirds. 

These are the highest concentrations of people of color ever reported from a national study 

of the distribution of hazardous waste facilities. Furthermore, when applying their 

recommended statistical analysis, it was found that racial disparities persist even when 

controlling for socioeconomic factors such as income, housing values, education, and 

employment status.

Henshel a. Yes, statistical methods are appropriate in general. However, a more sensitive 

analyses seems to be to break the demographics up (quartiles, quintiles) into some 

binned division of the total range, create donuts around the facility, and run the 

analyses as a regression of the demographics against proximity. You are able to 

detect (significantly) more subtle shifting of demographics over time.

b. It is also appropriate to use the more commonly used cut-off of 2x the poverty line, 

since even families at 2x the poverty line are struggling just to provide food and 

shelter these days. The census determined poverty line (that is, above or below the 

threshold) does not include childcare costs, as one example of the kind of critical 

expenditures that enable both parents to work. Thus it would be appropriate to test 

poverty threshold versus 2x*poverty threshold as the criteria for determining bias in 

representation of low income populations with regard to proximity to the HSM or 

DSW facilities.

c. Given the neighborhoods in which these facilities are placed, it would seem to be 

appropriate to at least consider other toxic stressors, such as TRI facilities or road 

density as part of the EJ analysis looking at cumulative exposure potential (based on 
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25

permit data for the HSM/potential DSW facilities for maximal exposure estimates).

4e. Is the statistical analysis in this section properly done?

Reviewer Comments

Daley The statistical analysis seems to be properly done. As far as I can tell, these are conditional 

probability calculations. It is a relatively straightforward and simple approach. While I am 

not a statistician, it seems like a reasonable way to approach the analysis. It provides the 

agency with two types of information: the chances that a facility exists in a buffer area 

given the demographic and socio-economic composition (threshold risk), and the

probability of a particular demographic or socioeconomic composition given the likelihood 

of facilities (the demographic ratio). 

Ferris EPA synchronizes with Professor Paul Mohai and Professor Robin Saha who are doing 

cutting edge demographic analysis. Their work shows increasing disproportionality, for 

example, nationally, people of color now make up the majority of those living within 3-km 

of hazardous waste facilities and that where facilities cluster they make up over two-thirds. 

These are the highest concentrations of people of color ever reported from a national study 

of the distribution of hazardous waste facilities. Furthermore, when applying their 

recommended statistical analysis, it was found that racial disparities persist even when 

controlling for socioeconomic factors such as income, housing values, education, and 

employment status.

Henshel a. There is a lot of detail provided for some of the analyses. Other analyses (producing 

some of the results listed in the tables) do not have such clear or extensive or 

sometimes even any clear statement of how some calculations were made. At the very 

least, a clear, jargonless description of how each column in each table was determined 

should be evident in the text in proximity to the tables.

b. There needs to be an explanation of why some Fisher’s analytical results are listed as 

N/A.

c. Why are the same charts repeated twice? Is this necessary?

d. The analysis should be broken out by state for all the analyses, and similarly, the 

notification facility results could be summed across states, as was done for the other 

types of facilities, even though the states covered are small in number compared to the 

total number of states represented in the analyses for the other facilities. That 

discrepancy should be pointed out in the legend. Yet there needs to be some way to 

compare across analyses. Only summing across states for most, and separating out one 

subset of data makes it hard to compare across results.

e. The same set of demographics should be tested for all types of facilities for all types of 

analyses. There is no justification for cutting back to 4 categories of analysis for some 
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26

analyses, and none is given.

f. The first set of analyses for each facility type would be better and more clearly 

represented by box and whisker plots. When using box and whisker plots, it is 

important to explain (for the lay audience) what data is represented in each part of the 

plots at some point in the chapter. With that explanation, the box and whisker plots 

provide more information for the comparisons, and provide a visual sense of variability 

and bias around the means.

4f. Are the assumptions in the analysis presented accurately and thoroughly?

Reviewer Comments

Daley Yes, I think the assumptions are accurately presented. Footnotes 34 – 37 are important 

components in the analysis. The report very clearly outlines data sources and how the 

information is aggregated together. As already noted, the distributional assumptions of the 

areal apportionment method should be more fully explained.

Ferris Assumptions appear accurate; however at this reading, this reviewer cannot determine 

whether they are thorough. 

Would assessment of an additional number of damages case affect the assumptions? 

Henshel [No response provided]

4g. Are the uncertainties in the data input into the analysis appropriately accounted for 

and discussed? 

Reviewer Comments

Daley There is considerable selection bias or selection effect in the “notification” facilities and 

likely also in the damage facilities. It is likely that these early adopters (notification 

facilities) are significantly different (and non-randomly distributed) compared to the three 

remaining categories. Damage facilities are also likely to be systematically different. I am 

not sure exactly how to address this, but it seems like something that the agency needs to 

consider. Perhaps analyzing a comparison group of randomly selected and/or “matched” 

facilities could be useful, in addition to the broader state and national comparisons. 

Ferris Uncertainties in the data input in the analysis appear to be appropriate.

Henshel No – see comments above about problems with addresses linked to facilities that have 

corporate offices away from the processing facilities, even when the two buildings are on 
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27

the same campus.

4h. Based on internal EPA review of the document, the Agency is considering additional 

approaches for analyzing the demographic data. The decision to conduct additional 

analyses will depend in part on timing and resource concerns. Which of the following 

analyses are most likely to yield new and/or improved information, and how would 

that information inform EPA’s decision-making process?

1. For the category of facilities from the damage case study, analyze the demographics for 

the timeframe the damages occurred.

Reviewer Comments

Daley See 2. below.

Ferris The reviewer is uncertain if this analysis will yield additional useful information without an 

assessment of additional cases.

Henshel Your meaning is not fully clear in this question, and it is not clear what analyses you would 

do to address this question, and how you would break up the data. I am also concerned that 

the number of facilities in each group might then be so small as to really decrease power to 

detect significant differences.

2. Compare potentially affected areas to non-affected areas. Compare the demographics in 

the 3-km concentric areas surrounding potentially affected facilities to demographics of 

areas in the state not containing facilities, rather than to averages for the entire state. 

Reviewer Comments

Daley Option 2 has the strongest potential to add to the ability of the agency to draw inferences 

from their data sources. If statistical analysis indicates systematic socioeconomic and 

demographic differences in area with and without facilities, then this provides even 

stronger evidence of the distributional affects of decision making. In addition to this, it 

would be ideal if the agency could model cumulative environmental stressors in 

communities in a more integrated fashion. Rather than simply noting multiple stressors in 

the notification areas, provide some indication of cumulative stressors in the other 

categories as well (damage case facilities, hazardous waste, and non-hazardous industrial 

waste). 

Ferris The reviewer is uncertain if this analysis will yield additional useful information other than 

another take on areas where disproportionate impacts occur.
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28

Henshel Yes – this provides a better comparison group – a counterfactual.

3. Add comparison to host metropolitan areas for facilities situated in metropolitan areas. 

Reviewer Comments

Daley See 2. above.

Ferris This comparison may yield information about metropolitan areas where disproportionate 

impacts exist.

Additional comments for question 4:

Has EPA evaluated additional damages cases? Is the pool of 218 adequate to reveal the 

widest reasonable range of damages, potential damages and types of comparisons?

Do host metropolitan areas factor in rural areas where capacity, including staffing, to 

oversee HSM facilities may be more limited compared to urban and suburban areas.

Henshel Yes, this also would be a very appropriate comparison to include.

5. Other Factors that Affect Vulnerability in Communities

Question 5 Introductory Remarks

Reviewer Comments

Ferris The transition to this section should be clear. It’s not clear that this section is distinct from 

the prior rule discussion. This is a graphics issue.

5a. Has EPA accurately described the other factors that may affect vulnerability in 

communities and their relevance to this analysis? 

Daley Yes. The agency has identified a wide range of stressors that can shape individual and 

community vulnerability. Additional resources that the agency could consider -

particularly if they embark on a more detailed county level comparison – include the 

county health rankings (http://www.countyhealthrankings.org/). 

Ferris The description of other factors that may affect vulnerability is accurate. 

The DSW Rule contains sound baseline vulnerability factors. 
Responses to Charge Questions

29

Where does immigrant status factor into vulnerability factors?

Should whether the generator is a small business factor into community vulnerability? For 

example, some small businesses could be less likely due to capacity to conduct in-depth 

due diligence or examinations of HSW facilities or how their wastes are recycled.

What is the universe of industrial facilities that may be generators of HSW and how do 

they factor into this analysis? How do industrial facilities factor into the potential impacts 

analysis?

Henshel [No response provided]

5b. EPA has included a discussion of five broad categories of other factors that affect 

vulnerability in communities. Based on available information, only two of those 

appear to be specifically associated with the 2008 DSW rule. Is the broader discussion 

helpful, or would it be better to focus more specifically on the factors associated with 

the rule? Please explain.

Daley The broader discussion is helpful. The report is complex, removing the broader discussion 

will not simplify the report tremendously. The broader discussion, however adds 

thoughtful detail and clearly communicates the challenges confronting public and private 

decision makers. 

Ferris What are “structural” reasons as stated in section 5.1.4? 

Ability to participate in the decision making process is a stated environmental justice 

vulnerability; however, this section states explicitly (in clear contradiction) that community 

input is not required of facilities or regulators.

The section is clear that lower participation levels can translate into experiencing greater 

negative impacts since “their input has not been considered fully, particularly if competing 

interests are set forth more effectively.” 

Does the importance and/or benefit of recycling override the value of public participation 

especially where disproportionality is an issue? Additionally, the studies show that 

facilities which have notified already show multiple facilities, higher disease incidence and 

a dearth of hospitals in the 3-km area.

Henshel a. It is better to keep the discussion broader. In this kind of document, it is important to 

include the negative results as well as the positive results.
Responses to Charge Questions

30

5c. Are there any additional factors that should be described? If so, please describe.

Daley If the country level examination is pursued, the agency might be able to rely upon data 

compiled under the country health rankings. Otherwise, the data presented in the report 

seems adequate. 

Ferris Immigrant status, particularly new immigrants and undocumented workers and residents 

constitute an important additional factor.

Unfunded mandates would affect EPA ability to ensure compliance if enforcement is left to 

states that don’t have the budget to inspect, monitor, notify the public or implement public 

involvement.

Henshel a. Other health endpoints to consider include: low birth weight as a measure of embryonic 

development; some measure of endocrine disruption including, and particularly, 

thyroid disruption, although other endocrine function indices should also be 

considered, such as diabetes; and some measure of IQ in children, if this is available.

6. Conclusions

Question 6 Introductory Remarks

Ferris The transition to this section should be clear. This is a graphics issue.

6a. Do the results of this analysis support EPA’s conclusions? 

Daley Yes, the conclusions seem to stem directly from the analysis presented in the report. 

Ferris The analysis and conclusions are extensive.

Arguably, DSW Rule conclusions supporting exclusion of HSW from RCRA protections 

are not thoroughly supported by the analysis as it pertains, in particular, to multiple 

(disproportionate?) impacts, potential hazards and public participation.

Henshel a. Yes, the results support EPA’s conclusions, but likely not as well, currently, as they 

might with more extensive EJ analysis carried out on the data.
Responses to Charge Questions

31

6b. Has EPA clearly and accurately explained the difference between its community-level 

analysis and its population-level analysis? 

Daley Yes, I think the agency has clearly differentiated between the community level analysis –

comparing the 3 km buffer area to state, national and urban and rural areas, and the 

population level analysis – exploring the threshold risk ratio and the demographic ratio for 

a larger set of categories (minority, poverty, American Indian and Alaska Native, and 

children under 5). 

Ferris The differences between community level and population level analysis are clear.

Henshel a. I think so, but I am not fully sure that my answer comes from the readability and clarity 

of the explanations – I suspect my familiarity with the information is affecting my 

comfort with the descriptions.

6c. Please identify any additional information that would make a significant impact on the 

conclusions of this analysis. 

Daley An environmental justice analysis of current regulatory practices for those states and 

facilities not adopting the 2008 DSW Final Rule would be helpful and may provide 

guidance if regulatory changes to the DSW rule are likely. The assumption seems to be that 

the status quo before the rule is neutral for communities of concern. Given the weight of 

the evidence in the environmental justice literature, this is not likely a reasonable 

assumption. 

In addition, it would be helpful to have county level comparisons for the community 

analysis. I am less certain that this addition would significantly change the conclusions, but 

it may strengthen the recommendations. 

Finally, the report would also benefit from a clear assessment of compliance under RCRA 

and the DSW final rule. If there are no prescriptive standards for storing waste while 

waiting to reclaim/recycle, are facilities more likely to have accidents? 

Ferris Specific and explicit storage timeframes and container requirements would facilitate safer 

handling by reducing the prospects for potential explosions, spills and other uncontrolled 

releases of HSM.

Off-site reclamation – regulatory safeguards that ensure proper management of HSW while 

on-site and during shipment are important.

Is there sufficient analysis of the impacts of storing HSW in land-based units such as pits, 

ponds and lagoons. Should standard RCRA regulatory controls apply where HSW is stored 

in such land-based units?

Does the DSW Rule consider the affects of tracking, monitoring and enforcement across 
Responses to Charge Questions

32

multiple state lines or, nationally, whether HSW transport will operate smoothly across 

multiple state programs? Is there favorable or negative impact on interstate commerce?

What constitutes “reasonable effort” is not clear. This may not be a sufficiently high bar to 

deter mismanagement of HSW and could encourage high risk conduct.

Should record-keeping include quantities of HSW generated? This data would be useful 

for emergency planning and response as well as helpful to determining economic and

environmental benefit.

Has EPA assessed profitability and the viability of end-use markets for various HSW and 

facilities? Would lack of markets affect, encourage or discourage a facility from taking 

steps and investing in protecting health and the environment?

Does the DSW Rule facilitate broad adoption by the states and state implementation?

Tribes, including Inuits, will need additional resources to staff and implement the DSW 

Rule. Should more cases on Native lands be included in the damages cases analysis?

Encouraging recycling should be possible while retaining a reasonable assurance of 

regulatory protection for health and the environment. 

Henshel a. Table 5.1 would allow for a very nice small cluster analysis (or principal component 

analysis) to look at which emissions and types of facilities link with which endpoints, 

and (using maybe MANOVA) incorporating transportation and health care availability 

would be interesting as confounding variables.

b. The chapter analyses seem to be ignoring the risk ratio data. Since the “full” set of 

analyses (ie Fishers Exact Test, for example) did not actually carry out the full set of 

analyses (separating out Black and Asian, for example), it seems that the results might 

have been stronger with the additional analyses.

c. Table numbers are not provided.

d. Population level analysis table results seem to show that there is a numbers (sample 

size) bias in the level of statistical significance. Once the notification facilities used in 

the analysis are pooled, or incorporate facilities from other states as will, to increase 

sample size, chances are that these results will also be significant in a pooled state 

analysis. Thus the need to do both pooled state, and divided state, to assess how much 

of the sensitivity might be sample size. It is also important to note that in regions with 

few Blacks, or few minorities, the minority population comparisons are always less of 

a driver than the low income analysis, as in these regions, are larger percentage of the 

low income community is white. This is true in Indianapolis, where there is a 

significantly large percentage of poor whites. In Northwest Indiana, however, there 

are more minorities, and minority population comparisons drive the EJ analysis results 

as strongly, or more strongly, than the low income analysis.

e. P121 – 7

th line down in paragraph – typo – higher total population than.... I believe 
Responses to Charge Questions

33

was intended.

f. P 123 Multiple and Cumulative Effects - note the numbers with % above 70% (most) 

and above 60% (all but a few!!!) – and a cumulative frequency chart might make a 

nice and very visually effective summary of these observations.

g. The proposed regulatory and implementation measures section needs solid expansion. 

It’s truly pitiful right now. It should also be noted that without regulatory clarification 

of some of the weaknesses in the 2008 DSW rule, enforcement is only as strong as the 

environmental consciousness of the administration. Even with revised regulation, 

enforcement and oversight is susceptible to political influence, just somewhat less so. 

Monitoring is not as much a part of the 2008 DSW rule, so how could monitoring data 

be used to help ensure facilities are not creating more of an exposure hazard for their 

communities under the new rule?

h. Comments on appendices:

Appendix A – Clarification is needed. 

1. page A-4 – second paragraph – last line – “typically 120 days following 

promulgation” of what? 

2. Page A-4 still – last paragraph – 5 lines down – please add examples here to each 

type of industry not subject to CAA regulation under the 2008 DSW rule.

3. Page A-6 third bullet – clarify if you mean leaks to only ground, to surface water, 

or also leaching to ground water – ie clarify

4. Page A-7 last bullet – capitalize OSH.

5. Page A-8 first bullet – a great example of spaghetti writing. Spaghetti writing 

makes the report more difficult to read for everyone, especially the lay person.

6. Page A-9 top of the page. A mention of the differences in monitoring would be 

appropriate here.

7. Page A-10 – second full paragraph (starts... “Further...”) - This paragraph needs 

some clarification, and needs rewriting.

8. Page A-10 section 3.9 second two paragraphs. These paragraphs are very unclear, 

and also seem to be internally inconsistent, as written. Clarify in these paragraphs 

what is included in each type of exclusion. A good example of a clearly written 

paragraph is the next paragraph (first paragraph of 3.10). This paragraph includes 

a short but clear definition which enables the reader to comprehend the information 

provided more readily. The reader does not have to go searching for the definition, 

which helps reduce reader confusion.

9. Page A-10 last paragraph, first sentence. Add clarifying phrases – what kind of 

characteristics, and where are these listed.
Responses to Charge Questions

34

10. Page A-11. First paragraph needs a sentence inserted clarifying what could be 

exempted. Second paragraph needs clarification in the middle sentence – specify 

briefly or provide example (in parentheses) for conditions under which listed waste 

may not be determined to be hazardous waste.

11. Table A-11 page A-13 middle column, middle section – This is too dense for the 

average reader referring only to CFR citations and statutes (in inconsistent style no 

less). Provide details or names for these sections and their overall regulation titles 

in clear, jargon-free writing.

12. Table A-11 – Overall – this table (and the report) lacks any discussion of the 

implication of these changes due to the adoption of the 2008 DSW rule. An 

example might be to evaluate the implication of leaking containers, which (under 

the current vagueness of the 2008 DSW ruling language) might not be caught for 

up to 2 years, or maybe longer. What kinds of exposures might be increased to 

what diameter population under this scenario?

13. Page A -17 – why the changed font size in column 1?

14. Page A-18. Last paragraph in column 1. Include a list of the 140 toxic and 

flammable regulated chemicals referred to here, and elsewhere in the report. The 

easiest way to handle this might be a footnote, or adding the list to the appendices, 

and referring to the inserted list (footnote, endnote, or appendix) here and 

whenever else this list is referenced.

15. Page A-21 first column, second line – missing an article (“the” or “a”) between 

“above” and “specified quantity”.

16. Page A-26 – last column, first paragraph – this section (and its text tie-in) is just 

calling out for a discussion of the implications of lack of required training on 

personnel at the facility if exposures indeed rise.

17. Page A-29 first column – need a space between paragraphs.

18. Page A-30 third column, first word “these” needs clarification – to which 

regulations is the writer referring. Do not expect the lay audience to know for 

sure. Same point for page A-32 third column, last paragraph, second line and 

again page A-33 second line.

19. Page A-34 third column second paragraph. This very statement again seems to call 

out for a discussion of the implications of the lack of record keeping and exception 

reporting. It is NOT sufficient to point out that the 2008 DSW rule changes the 

recording and record keeping requirements.

20. Page A-35 first column middle paragraph – clarify, provide more detail. Similarly 

third column second paragraph – specify which excluded materials may not qualify 

as a DOT hazardous material, and provide some discussion of the potential 

implications of this from an EJ perspective.

21. Page A-36 third column second paragraph – this again needs further discussion 
Responses to Charge Questions

35

here and in the text on the possible implication of this change due to the 2008 

DSW rules. Specifically, would any residues from reclamation ever be potentially 

hazardous and NOT get identified as such through the 2008 DSW process.

22. Page A-37 GCE: is something missing here? Seems like it.

23. Page A-49 right hand column, second paragraph – use the full citation, not the 

abbreviated citation. The full citation (ie using the same citation format 

throughout) is more understandable to the lay person.

24. Page A-52 right column, top line “an SPCC” fix typo

25. Page A-61 middle column, top paragraph. Keep citation format consistent and 

summarize the legitimacy criteria in this paragraph, a footnote, or the next 

paragraph.

26. Page A-63 right column. Provide examples of potential problematic emissions that 

don’t meet threshold criteria and don’t meet other applicability criteria. It would 

be great if the implications of the resultant exposure (were this to occur) be 

determined quantitatively, maybe at the mean/lower assumption (9.5 TPY single 

type HAP) and high assumption (24.95 TPY mixed HAP) levels.

27. Page A-64 – right hand column – No one in this report is discussed how much 

might be released before anything would trigger the need to determine if a cleanup 

is needed. Surely this would help explore the potential for a significant 

disproportionate impact occurring? 

28. Page A-68, right column, last sentence. Where is the “note below”? Probably 

better to put the note in a footnote on the same page or in the right hand column 

immediately after this paragraph.

29. Page A-82 on – It is great to have the summary of the Federal Regulations here. 

However, the formatting and depth of each discussion is not consistent and needs 

to be made so. For example, the most readable formats start with a sentence or two 

that talks about the relevant regulation(s) more broadly, and then includes a 

sentence that explains the relevance of the regulation to this report/study.

30. Page A-83 Second paragraph under “Legitimate recycling” – include a brief 

summary of the six criteria referred to here (and elsewhere) and not clearly 

defined. The listing could be in the paragraph, in an offset list, in a separated inset 

box, or in a footnote.

31. Page A-84 Top of the page – provide details about standards in 262.34 (d) and (e). 

They are not clearly described anywhere. Also maintain a consistent formatting 

for citations.

32. Page A-94 Exports first paragraph last two sentences – a) remember to keep 

citations in consistent format. B) To make this document most readable, 

summarize these requirements briefly.
Responses to Charge Questions

36

33. Page A-96 – No where is there a discussion of at what point in a chain of noncompliance would the chain of permission stop and oversight identify a problem 

that needs to be addressed.

34. Page A-99 bullets under 5.3.3 In each bullet, first identify the key factors that 

determine whether processes fit as Program 1, 2 or 3 (i.e. defined for the 

appropriate bullet). These three was to characterize a process are never clearly 

defined throughout this whole document. This would seem to be the place to put 

those definitions.

35. Page A-106 5.8.2 line 3 – TSDFs is an acronym that is never defined.

36. Appendix B is good to have, as is Appendix C and D. Note that in Appendix B, 

and in a few other places, the writer uses the personal “we” instead of a noun. This 

is formal writing and should not include any first person (personal) pronouns 

anywhere in the document. Search to find the “we”s and rewrite to replace the 

personal pronoun with a clearer sentence using the impersonal 3rd person or noun.

37. Page B-2 first paragraph. Need to add a sentence that explains why it is important 

to understand what a “wastewater” versus a “nonwastewater” is.

38. Page B-3 table bottom: POTW and NPDES is not defined here or elsewhere in the 

document. Acronyms are best spelled out the first time they are used in any given 

chapter, and still it is kind to the read to provide a Table of Acronyms and 

Abbreviations, and spelling out of all acronyms in footnotes for any table in which 

they are used.

39. Appendix C is written like an abbreviated technical reference manual, but without 

the definitions usually included in such a manual. Most of this section reads like a 

jargonfest, and is not accessible to the lay reader. So, 

a. Identify all acronyms and abbreviations. There’s two in the second paragraph.

b. In the introductory section, explain by the K, F, U, P and D codes represent, 

how they are used, and how understanding the coding was needed for the 

environmental justice analyses.

c. Explain all codes that have no other referent to explain them. For example, on 

page C-5 top line, F037-F038 codes are referred to without placing them in 

any context or defining what these codes cover.

d. Table C-1 needs some additional explanation before it will be easily read by 

the lay reader.

40. Appendix D is written in a way that is essentially understandable. However in two 

places, where groups are moved from the logical grouping to a not as obvious 

grouping, explanation is needed for why the move was made. These points are on 

Page D-3 bottom of the page, and on Page D-5 top of the page.

41. Appendix E needs some clarifying verbiage written in easy to understand English. 
Responses to Charge Questions

37

The two ratios could, for example, be easily explained by one or two sentences. 

The description of the tests are more theoretical in places. Specific places that 

clarification is needed includes:

a. Page E-9 bottom of the last Fisher Exact Test paragraph, there is no 

explanation for why or when the minus sign is removed, nor where the minus 

sign is likely to show up and why.

b. Page E-10 – it is not clear what the tables are for the various states. Add 

clarifying language.

c. Since these tests are not always run (but should be) the verbiage should include 

an explanation of why they are not run in some situations in the analysis and 

are run in other, apparently similar situation.

39

Appendix A: Charge to Reviewers

41

Technical Charge to External Peer Reviewers

Contract No. EP-W-10-055

Task Order No. EP-G11S-00004

December 21, 2010

External Review for EPA’s Draft "Definition of Solid Waste Final Rule 

Environmental Justice Analysis"

BACKGROUND INFORMATION

In October 2008, EPA published a final rule revising the definition of solid waste under the Resource 

Conservation and Recovery Act (RCRA) for certain types of hazardous secondary materials being recycled. 

The intent of the rulemaking was to encourage safe recycling of hazardous waste by excluding certain 

materials from full regulation as hazardous waste if they were recycled under certain conditions. During a 

June 2009 public meeting to discuss a petition asking EPA to reconsider the final rule, concerns were 

expressed that the Agency had not paid adequate attention to environmental justice during the rulemaking 

process. EPA developed the draft “Definition of Solid Waste Final Rule Environmental Justice Analysis” 

(DSW Rule) in response to these concerns.

When analyzing environmental justice concerns during the 2008 rulemaking, EPA assumed that the 

conditions it had included as part of the exclusion would be sufficient to prevent all releases to the 

environment. As stated in its environmental justice discussion, EPA reasoned that with no releases, there 

could be no disproportional impact on disadvantaged communities. In the draft document that is the subject 

of this peer review, EPA has revisited those assumptions and performed a more complete environmental 

justice analysis.

The draft revised analysis starts by identifying what potential hazards may result from the definition of solid 

waste final rule and which communities may potentially be affected by these hazards. The analysis then 

examines the demographics of the potentially affected communities by looking at the numbers of members 

of racial minorities, children under 5, and people with income below the poverty level within a 3-km radius 

around each facility. These demographics are then compared to those for the county and state in which the 

facility is located, and also for the nation as a whole. The analysis then identifies what other factors in the 

community may also affect any vulnerability in these communities to the potential hazards from the final 

rule. 

Finally, the draft analysis uses all this information to make a determination about whether some population 

groups (e.g., minority or low-income populations) would be over-represented in the impacted communities. 

This draft analysis will be used to inform EPA and the general public about the potential impacts of the 

2008 definition of solid waste final rule on communities in which the relevant facilities are sited or may be 

sited in the future. It will also be used to inform EPA and the general public about potential approaches to 

mitigating those impacts in the future, including potential regulatory changes, as well as non-regulatory 

measures. 
42

The draft analysis has been reviewed internally at EPA, and the current draft reflects response to the internal 

comments. EPA will consider and respond to comments from this external peer review as it prepares the 

final version of this analysis. 

CHARGE QUESTIONS

Please provide a written response to all questions, either as a specialist if the topic is within your area of 

expertise, or as a general reader if it is not. If no response is possible because the question lies entirely 

outside your area of expertise, please indicate that. 

Be sure to provide sufficient explanation in each of your responses so that EPA can understand the basis for 

them. As you note areas needing improvement, provide specific suggestions for improvement, where 

possible. 

As you prepare your responses, please be sure to follow the formatting instructions at the end of this charge.

General

Ga. Please state your overall assessment of the content, readability and utility of this report, including 

any changes needed. 

Gb. Is this information accurately and clearly presented? How might the document be improved?

Gc. Does the document adequately review, present, analyze and summarize the available data? If not, 

what can be improved?

Executive Summary

ESa. Is the Executive Summary clear and easy to read?

ESb. Does the Executive Summary provide an accurate view of the contents, findings, and conclusions 

of the analysis? If not, please specify how it could be improved.

1. Introduction

1a. Does the Introduction clearly lay out the contents of the analysis? If not, please describe how it 

could be improved.

2. Hazard Characterization

2a. Do the potential scenarios under the definition of solid waste final rule clearly describe how EPA 

thinks facilities may react to the rule? If not, please suggest where improvements should be 

made. 

2b. Are these scenarios plausible, and are there any other likely scenarios? Please explain. 

2c. Is EPA’s analysis of the types and quantities of hazards from the definition of solid waste final 

rule thorough and accurate? Please explain.

2d. Is EPA’s analysis of the differences between hazardous waste regulations and the regulations in 

the definition of solid waste accurate? If not, please explain. 
43

3. Identification of Potentially Affected Communities

3a. Has EPA correctly identified the facilities that may be likely to begin recycling hazardous 

secondary materials under the definition of solid waste exclusions? If not, what facilities are 

missing?

3b. Is EPA’s use of a threshold of 25 tons of recyclable hazardous secondary material generated 

annually an appropriate way of identifying generators that might choose to recycle onsite? If 

not, what threshold would be more appropriate?

3c. Has EPA appropriately identified the communities and populations that are potentially affected 

by these facilities? In particular is the 3-km circle the appropriate area of consideration? Please 

explain.

4. Analysis of Demographics of Potentially Affected Communities

4a. Are EPA’s data sources for its demographic analysis appropriate? Should EPA consider any 

additional data sources for this information? Please explain.

4b. Did EPA select appropriate characteristics for analysis of environmental justice concerns in 

communities? 

4c. Was the choice of the areal apportionment method to determine the characteristics of the 

communities surrounding each facility appropriate and properly conducted? 

4d. Is a statistical analysis of these results to determine how the demographic characteristics compare 

to those on a county, state, and national level, in both urban and rural communities, a 

scientifically appropriate way to assess the existence of environmental justice concerns in 

connection with this rulemaking? Are there additional methods that should be considered for 

analyzing the environmental justice concerns with this rule?

4e. Is the statistical analysis in this section properly done?

4f. Are the assumptions in the analysis presented accurately and thoroughly?

4g. Are the uncertainties in the data input into the analysis appropriately accounted for and 

discussed? 

4h. Based on internal EPA review of the document, the Agency is considering additional 

approaches for analyzing the demographic data. The decision to conduct additional analyses will 

depend in part on timing and resource concerns. Which of the following analyses are most likely 

to yield new and/or improved information, and how would that information inform EPA’s 

decision-making process?

1. For the category of facilities from the damage case study, analyze the demographics for the 

timeframe the damages occurred.

2. Compare potentially affected areas to non-affected areas. Compare the demographics in the 

3-km concentric areas surrounding potentially affected facilities to demographics of areas in 

the state not containing facilities, rather than to averages for the entire state. 

3. Add comparison to host metropolitan areas for facilities situated in metropolitan areas. 

5. Other Factors that Affect Vulnerability in Communities

5a. Has EPA accurately described the other factors that may affect vulnerability in communities and 

their relevance to this analysis? 

5b. EPA has included a discussion of five broad categories of other factors that affect vulnerability in 

communities. Based on available information, only two of those appear to be specifically 
44

associated with the 2008 DSW rule. Is the broader discussion helpful, or would it be better to 

focus more specifically on the factors associated with the rule? Please explain.

5c. Are there any additional factors that should be described? If so, please describe.

6. Conclusions

6a. Do the results of this analysis support EPA’s conclusions? 

6b. Has EPA clearly and accurately explained the difference between its community-level analysis 

and its population-level analysis? 

6c. Please identify any additional information that would make a significant impact on the 

conclusions of this analysis. 
45

Appendix B: Individual Reviewer Comments

47

COMMENTS SUBMITTED BY

Dorothy M. Daley, Ph.D.

Associate Professor

Department of Political Science & Environmental Studies Program

University of Kansas

504 Blake Hall, 1541 Lilac Lane

Lawrence, KS 66044

785-864-9839

Email: daley@ku.edu

Dorothy M. Daley, Ph.D.

49

External Peer Review for EPA’s Draft Definition of Solid Waste Final Rule

Environmental Justice Analysis

Response to Charge Questions by Dr. Dorothy M. Daley

General

Ga. Please state your overall assessment of the content, readability and utility of this report, 

including any changes needed. 

My overall assessment is that the report manages to present a very complex decision making process and 

analysis in a fairly clear and accessible fashion. The discussion of potential hazards and exposure pathways 

seems clear and complete. The eight scenarios are clearly laid out. There report is quite detailed. The main 

points seem to be that the 2008 Draft Solid Waste Final Rule (DSW) enables generators to store more 

hazardous secondary material (HSM) for a longer period of time, and provides no prescriptive standards to 

ensure safe containment. Transporters of waste and intermediate and reclamation facilities are also impacted 

in ways not necessarily analyzed in the initial consideration of the rule change. Decreased transparency and 

public participation provisions combined with deregulation of hazardous secondary material to encourage 

reclamation is likely to have differential impacts across the county. The findings from this report present the 

EPA with a challenge. Recycling hazardous secondary material presents significant health and environmental 

hazards, and the 2008 rule change is not uniformly health protective. According to this analysis, some 

communities will be more impacted than others, and this differential impact has direct environmental justice 

implications. 

To fully understand the differential impact of the 2008 DSW final rule on low income and minority 

communities and populations, it would be helpful to have a meaningful baseline analysis. What if continuing 

to regulate HSM under RCRA has even greater environmental justice impacts? The report and analysis do 

not provide that information. So, there is no way to identify if the 2008 DSW rule – while likely to have 

disproportional impacts – is an improvement over current reclamation and disposal practices under RCRA. I 

recognize this analysis would entail considerable work, but if HSM regulated under RCRA currently has 

even greater environmental justice impacts, then this would be very important to know this as decision 

making proceeds. 

Gb. Is this information accurately and clearly presented? How might the document be 

improved?

For the most part, the information in the report is clearly presented. There are, however, some areas that 

could be improved. While Figure 1 is informative, the other figures in the report make little sense to me. 
Dorothy M. Daley, Ph.D.

50

They either need additional explanation, or they should be removed. Figure 4.41.1 is an example of the type 

of bar chart that can be confusing. Perhaps if the base category of Whit/Non-Hispanic was added, the figure 

would make more sense. As it is now, these figures detract rather than add to the report. 

Why are urban and rural comparison omitted for the damage case facilities? Consistent analysis across 

categories is important. If the analysis cannot be performed for some reason, an explanation in the text would 

be helpful. 

A list of acronyms would be extremely helpful. Also, there are also several typos and minor mistakes that 

should be addressed. These include: 

(1) Page iv – under the hazardous waste baseline, second row, “recycles” should be changed to 

“recycling”

(2) Page 2, sec 1.3, bullet 1 – “HSMHSMs” should be changed to “HSM”

(3) Page 10, top of the page: “as a focus” is written twice. One occurrence should be deleted. 

(4) Page 81, section 4.2.3 – “area” should be added after “a 3 km”

(5) Page 91, section 4.42 – lists 219 damage case facilities. There are only 217 reported in the 

analysis. Either explain the missing cases, or fix a typo. 

(6) Attachment A, page A-2, section 1. Toward the end of the first paragraph, should read “regulation 

if” not “regulation is”. 

Gc. Does the document adequately review, present, analyze and summarize the available 

data? If not, what can be improved?

It seems like the document is quite thorough. As noted in my response to question Ga, the document would 

be improved by a assessing the Environmental Justice impacts of the baseline – or RCRA’s approach to 

HSM recycling and disposal. 

Executive Summary

ESa. Is the Executive Summary clear and easy to read?

Considering the complexity of the document, the Executive Summary is relatively clear and easy to read. 

The “Summary of Potential Impacts” is very helpful. It is important to note, however, that the findings in the 

executive summary are not properly numbered: the executive summary lists findings 1, 3, and 4, omitting 2. 

The table and paragraph describing “Community Level Analysis of Potential Disproportionate Impacts” is 

difficult to follow. It would be helpful if the Environmental Protection Agency (EPA) could identify and 

describe the four types of facilities in this analysis more consistently. For example, the text on page vii could 

be edited to include the following language connecting the text to the community analysis tables: 
Dorothy M. Daley, Ph.D.

51

The second step of the methodology identified facilities that can represent the facilities that are likely to 

take advantage of the 2008 DSW final rule. These facilities are grouped into four different categories: (1) 

facilities that have already notified under the 2008 DSW final rule[Notification facilities], (2) hazardous waste 

facilities that are likely 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) to 

use the rule [Hazardous Waste Facilities], (3) facilities from the environmental problems study (many of 

which operated under exclusions or reduced regulations)[Damage 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 [Non-Industrial Hazardous Waste Facilities].

It is difficult to understand where the categories in the Table on page X come from. They should be clearly 

labeled in the text and - table categories: the ordering in the text and the table should be consistent. Also, it 

would be helpful to define “damage facilities”. 

ESb. Does the Executive Summary provide an accurate view of the contents, findings, and 

conclusions of the analysis? If not, please specify how it could be improved.

Yes, the Executive Summary provides an accurate summary of the more detailed material presented in the 

report. 

1. Introduction

1a. Does the Introduction clearly lay out the contents of the analysis? If not, please describe 

how it could be improved.

Yes, the Introduction is clear. It is easy to follow and well organized.

2. Hazard Characterization

2a. Do the potential scenarios under the definition of solid waste final rule clearly describe 

how EPA thinks facilities may react to the rule? If not, please suggest where 

improvements should be made. 

Yes, the scenarios clearly define how EPA thinks facilities may react to the rule. Table 2.1 is particularly 

useful in outlining the baseline and potential changes based on the DSW Exclusions. I would however, like 

to know how the EPA developed these scenarios. Are these based on professional experience, or did the 

agency talk with the regulated community to get a sense of potential reactions to the DSW Exclusions? If it 

is the latter, could the report provide more detailed information regarding the feedback from the regulated 

community? If it is the former, it would add value to outline some of the ways in which that experience 

shaped the discussion / selection of the scenarios. 
Dorothy M. Daley, Ph.D.

52

2b. Are these scenarios plausible, and are there any other likely scenarios? Please explain. 

These scenarios seem plausible. They are described in clear and logical detail. 

2c. Is EPA’s analysis of the types and quantities of hazards from the definition of solid waste 

final rule thorough and accurate? Please explain.

Yes, EPA’s analysis of the types and quantities of hazardous secondary material is clear. Figure 1 provides a 

clear justification for the focus on solvents and electric arc furnace dust. As mentioned earlier, it would be 

helpful if the report clarified the definition of a damage case or damage facility. As noted on page 10, the 

analysis highlights solvent wastes because of their prevalence in damage cases. A definition and some 

references to RCRA damage cases would be helpful, even if provided in a footnote. 

2d. Is EPA’s analysis of the differences between hazardous waste regulations and the 

regulations in the definition of solid waste accurate? If not, please explain. 

It seems as if EPA has noted many of the differences between hazardous waste regulations and the changes 

stemming from the 2008 Draft Solid Waste (DSW) Final Rule. Table 2.3 is a very detailed description of the 

eight likely scenarios and their impact on generators, transporters, and intermediate reclamation facilities. 

This material clearly communicates that there is likely to be substantial changes in the accumulation and 

storage of hazardous secondary material (HSM). 

3. Identification of Potentially Affected Communities

3a. Has EPA correctly identified the facilities that may be likely to begin recycling hazardous 

secondary materials under the definition of solid waste exclusions? If not, what facilities 

are missing?

EPA’s approach to identifying facilities that are likely to begin recycling hazardous secondary material 

seems reasonable. I cannot think of another category to include. Out of the categories presented (already 

notified; damage facilities; currently generating hazardous secondary material, and facilities that may easily 

expand or switch to reclamation because of the DSW final rule), the last three categories seem more useful to 

understanding likely environmental justice impacts. With only 40 facilities providing notification at the time 

of the report, it is likely that “street level” implementation will be driven by the larger population of facilities 

rather than early adopters. 
Dorothy M. Daley, Ph.D.

53

3b. Is EPA’s use of a threshold of 25 tons of recyclable hazardous secondary material 

generated annually an appropriate way of identifying generators that might choose to 

recycle onsite? If not, what threshold would be more appropriate?

I cannot comment directly on whether or not the annual marker of 25 tons of recyclable material is 

appropriate. The report provided limited justification for this cut off point, and while it seems reasonable, 

someone with more applied experience in waste management and reclamation may think otherwise. 

3c. Has EPA appropriately identified the communities and populations that are potentially 

affected by these facilities? In particular is the 3-km circle the appropriate area of 

consideration? Please explain.

EPA is defining a community as a 3 kilometer circle or buffer around one of the facilities included in this 

analysis. The agency then uses census information to apportion socio-economic and demographic ratios 

within this radius. This method is superior to simply using standard census divisions such as census tracts, 

blocks, or even zip code aggregation. The operational definition of “a community” is challenging and the 

environmental justice literature has numerous empirical studies at different levels of analysis, sometimes 

providing conflicting and competing results. Thus, using a measure of community with stronger 

measurement validity is important. Like all measurements, this is not a perfect representation of “a 

community”, but it is a much improved measure over more traditional approaches, i.e., studies that rely upon 

preexisting census designations to ascertain community characteristics. Increasingly, a 3 kilometer radius is 

becoming a standard approach to improving the precision of community measures in environmental justice 

and public health research. The report however, could be edited to more clearly explain this approach. The 

text on Page 80 and 81 should be streamlined. First, the agency should suggest that the 3 km buffer is 

reasonable given the potential for acute exposure from accidental releases. Then, this should be followed by 

a discussion of the area apportionment method. As it reads now, it is a bit confusing. 

4. Analysis of Demographics of Potentially Affected Communities

4a. Are EPA’s data sources for its demographic analysis appropriate? Should EPA consider 

any additional data sources for this information? Please explain.

The census data that the EPA uses for this analysis is standard. Improvements would include 

relying upon the 2010 census numbers to more accurately reflect community composition. If possible, it 

would be ideal to be able to rely upon the American Community Survey (ACS) to obtain more detailed and 

temporal information on community change. However, I am not sure that the sample size for the ACS are 
Dorothy M. Daley, Ph.D.

54

adequate for this facility based approach. It may be that by drilling down to the facility level and relying 

upon survey rather than census data, introduces too much variability. 

4b. Did EPA select appropriate characteristics for analysis of environmental justice concerns 

in communities? 

Yes. The EPA has selected appropriate characteristics to analyze in this report. I think it would be a stronger 

analysis if along with “children under five”, “adults over 65” were included in the detailed analysis in 

chapter 4. Given the demographic transitions of the baby boomers into an elderly population, it will become 

more critical to understand differential exposure for susceptible populations at both ends of the spectrum. 

4c. Was the choice of the areal apportionment method to determine the characteristics of the 

communities surrounding each facility appropriate and properly conducted? 

Yes, it is fine. It would be beneficial to have some discussion of the assumption behind this method. As 

noted on Page 80, the areal apportionment method assumes all populations are equally distributed in the 

block or block group. This assumption will not hold in practice. Therefore, some indication of how this 

assumption influences the analysis would be useful. Given the population distribution in the nation, how 

might this assumption bias the analysis? I am not suggesting that the agency change their approach, only that 

they articulate the implication of this assumption. 

4d. Is a statistical analysis of these results to determine how the demographic characteristics 

compare to those on a county, state, and national level, in both urban and rural 

communities, a scientifically appropriate way to assess the existence of environmental 

justice concerns in connection with this rulemaking? Are there additional methods that 

should be considered for analyzing the environmental justice concerns with this rule?

Yes. A statistical analysis of these results is an appropriate method to understand patterns in administrative 

and community level data. These patterns can reflect social and environmental disparities and the EPA can 

consider these patterns for future decision making. Note however, that the analysis presented in Chapter 4 

did not include a comparison between community (3 km buffer area) and county level characteristics. State, 

national, and urban and rural were examined, but county information was not analyzed in this section of the 

report. County level information and analysis would have added value to this report. 

4e. Is the statistical analysis in this section properly done?

The statistical analysis seems to be properly done. As far as I can tell, these are conditional probability 

calculations. It is a relatively straightforward and simple approach. While I am not a statistician, it seems 

like a reasonable way to approach the analysis. It provides the agency with two types of information: the 

chances that a facility exists in a buffer area given the demographic and socio-economic composition 
Dorothy M. Daley, Ph.D.

55

(threshold risk), and the probability of a particular demographic or socioeconomic composition given the 

likelihood of facilities (the demographic ratio). 

4f. Are the assumptions in the analysis presented accurately and thoroughly?

Yes, I think the assumptions are accurately presented. Footnotes 34 – 37 are important components in the 

analysis. The report very clearly outlines data sources and how the information is aggregated together. As 

already noted, the distributional assumptions of the areal apportionment method should be more fully 

explained.

4g. Are the uncertainties in the data input into the analysis appropriately accounted for and 

discussed? 

There is considerable selection bias or selection effect in the “notification” facilities and likely also in the 

damage facilities. It is likely that these early adopters (notification facilities) are significantly different (and 

non-randomly distributed) compared to the three remaining categories. Damage facilities are also likely to be 

systematically different. I am not sure exactly how to address this, but it seems like something that the 

agency needs to consider. Perhaps analyzing a comparison group of randomly selected and/or “matched” 

facilities could be useful, in addition to the broader state and national comparisons. 

4h. Based on internal EPA review of the document, the Agency is considering additional 

approaches for analyzing the demographic data. The decision to conduct additional 

analyses will depend in part on timing and resource concerns. Which of the following 

analyses are most likely to yield new and/or improved information, and how would that 

information inform EPA’s decision-making process?

For the category of facilities from the damage case study, analyze the demographics for the timeframe the 

damages occurred.

Compare potentially affected areas to non-affected areas. Compare the demographics in the 3-km concentric 

areas surrounding potentially affected facilities to demographics of areas in the state not containing facilities, 

rather than to averages for the entire state. 

Add comparison to host metropolitan areas for facilities situated in metropolitan areas. 

Option 2 has the strongest potential to add to the ability of the agency to draw inferences from their data 

sources. If statistical analysis indicates systematic socioeconomic and demographic differences in area with 

and without facilities, then this provides even stronger evidence of the distributional affects of decision 

making. In addition to this, it would be ideal if the agency could model cumulative environmental stressors in 

communities in a more integrated fashion. Rather than simply noting multiple stressors in the notification 
Dorothy M. Daley, Ph.D.

56

areas, provide some indication of cumulative stressors in the other categories as well (damage case facilities, 

hazardous waste, and non-hazardous industrial waste). 

5. Other Factors that Affect Vulnerability in Communities

5a. Has EPA accurately described the other factors that may affect vulnerability in 

communities and their relevance to this analysis? 

Yes. The agency has identified a wide range of stressors that can shape individual and community 

vulnerability. Additional resources that the agency could consider - particularly if they embark on a more 

detailed county level comparison – include the county health rankings 

(http://www.countyhealthrankings.org/). 

5b. EPA has included a discussion of five broad categories of other factors that affect 

vulnerability in communities. Based on available information, only two of those appear to 

be specifically associated with the 2008 DSW rule. Is the broader discussion helpful, or 

would it be better to focus more specifically on the factors associated with the rule? 

Please explain.

The broader discussion is helpful. The report is complex, removing the broader discussion will not simplify 

the report tremendously. The broader discussion, however adds thoughtful detail and clearly communicates 

the challenges confronting public and private decision makers. 

5c. Are there any additional factors that should be described? If so, please describe.

If the country level examination is pursued, the agency might be able to rely upon data compiled under the 

country health rankings. Otherwise, the data presented in the report seems adequate. 

6. Conclusions

6a. Do the results of this analysis support EPA’s conclusions? 

Yes, the conclusions seem to stem directly from the analysis presented in the report. 

6b. Has EPA clearly and accurately explained the difference between its community-level 

analysis and its population-level analysis? 

Yes, I think the agency has clearly differentiated between the community level analysis – comparing the 3 

km buffer area to state, national and urban and rural areas, and the population level analysis – exploring the 

threshold risk ratio and the demographic ratio for a larger set of categories (minority, poverty, American 

Indian and Alaska Native, and children under 5). 
Dorothy M. Daley, Ph.D.

57

6c. Please identify any additional information that would make a significant impact on the 

conclusions of this analysis. 

An environmental justice analysis of current regulatory practices for those states and facilities not adopting 

the 2008 DSW Final Rule would be helpful and may provide guidance if regulatory changes to the DSW rule 

are likely. The assumption seems to be that the status quo before the rule is neutral for communities of 

concern. Given the weight of the evidence in the environmental justice literature, this is not likely a 

reasonable assumption. 

In addition, it would be helpful to have county level comparisons for the community analysis. I am less 

certain that this addition would significantly change the conclusions, but it may strengthen the 

recommendations. 

Finally, the report would also benefit from a clear assessment of compliance under RCRA and the DSW final 

rule. If there are no prescriptive standards for storing waste while waiting to reclaim/recycle, are facilities 

more likely to have accidents? 

59

COMMENTS SUBMITTED BY

Deeohn Ferris, J.D.

President

Sustainable Community Development Group, Inc.

P.O. Box 15395

Washington, DC 20003

202-637-2467

Email: gerinc@mindspring.com

Deeohn Ferris, J.D.

61

External Peer Review for EPA’s Draft Definition of Solid Waste Final Rule

Environmental Justice Analysis

Response to Charge Questions by Dr. Deeohn Ferris

General

Ga. Overall Assessment

Generally, the DSW Rule is read-able and clear.

Gb. Information Accuracy, Clarity

Generally, information in the DSW Rule presented is clear and appears to be accurate.

Gc. Document Adequacy, Data Summary

The DSW Rule is an extensive document with significant analysis and extensive data.

Executive Summary

ESa. Clarity, Readability

The Executive Summary is very clear and readable. 

The material is complex and dense which is to be expected in an agency rulemaking. 

Readers reviewing the synopsis of the Sierra Club petition in this summary (or, in the relevant section 

below) would be informed by an abbreviated specific list of issues identified by the Club (instead of the 

more generalized “”raised a number of issues about the protectiveness of the rule...’ -- especially since the 

language of the rule emphasizes that a number of commenters “echoed”...concern...”

Summary of DSW EJ Methodology is clear and concise with a couple of exceptions. The term “damages” 

in Step 4 could be explicitly defined. Presumably, the language that follows the term “damages” is 

explanatory but that is somewhat unclear. 

Does “Information” in Step 5 include data? Perhaps strengthening the language to “Data and 

Information...” is more supportive of the Agency’s rationale.
Deeohn Ferris, J.D.

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ESb. Accurate View

The “Summary of Potential Impacts...Under Different Recycling Scenarios” is clear however the accuracy 

of the presumptions is challenged by the language on its face. Pursuant to Hazard Characterization, EPA 

demonstrates and discusses the highly hazardous nature of the 2 main sources of reclaimed hazardous 

secondary materials (hereafter HSM) upon which much of the Draft DSW Rule analysis is based in 

addition to the storage hazards including leaks, fires and explosions. Container standards do not appear to 

compare with the highly hazardous nature of the 2 main sources upon which much of the Draft DSW Rule 

analysis is based. 

The Scenarios chart shows several instances involving movement or activity related to HSM where it 

appears that various historic RCRA safeguards are not required see e.g., certain scenarios under Scenario 3; 

Scenario 5; Scenario 6; Scenario 7; Scenario 8) without, it could be said, on balance, assuring a regulatory 

atmosphere that influences the regulated community to handle HSW in ways that prevent hazards. 

Comparatively, streamlined notice and recordkeeping would both facilitate emergency planning and 

response and protect human health and the environment. 

The benefits (per language in the Scenarios) don’t balance the potential negative impacts. This could be 

more clearly set forth or demonstrated. Although the reviewer does not express agreement that any benefits 

would offset the potential hazards or actual hazards, more clarity or quantification of benefits would 

strengthen the analysis.

Does EPA plan to establish a definition or explanation of what constitutes legitimate recycling and/or 

recycler-facility? This could serve as notice to generators, receivers, recyclers that the exemptions and 

exclusions are accompanied by affirmative duties that include compliance with statutes and regulations?

Regarding DSW Rule controversies about disproportionate negative impacts and exposures, would these 

communities feel more protected (versus adding to the burden of already cumulative pollution) if HSW 

were handled similar to those substances categorized under Universal Wastes?

1. Introduction

1a. Clarity of Analysis

Summary of DSW EJ Methodology is clear and concise with a couple of exceptions. 

The term “damages” in Step 4 could be explicitly defined. Presumably, the language that follows the term 

“damages” is explanatory but that is somewhat unclear. 
Deeohn Ferris, J.D.

63

Does “Information” in Step 5 include data? Perhaps strengthening the language to “Data and 

Information...” is more supportive of the Agency’s rationale.

Readers reviewing the synopsis of the Sierra Club petition would be informed by an abbreviated specific 

list of issues identified by the Club (instead of “raised a number of issues about the protectiveness of the 

rule...” 

1.3 minor typo -- see “HSMHSMs”

In view of the complexity of what is explained, Scenarios are clear.

In addition to the advantage of adhering to RCRA’s decades old cradle-to-grave protective framework, 

consider whether requiring a streamlined notice and record-keeping process for generators, receivers and 

recyclers of HSM benefit EPA and states e.g., monitoring, as well as data that shows the environmental and 

economic benefits of HSW exclusions?

The threat of post facto CERCLA liability is not interchangeable with up-front environmental protection 

standards and requirements. This reviewer does not presume that the entire regulated community is 

villainous; however, any vigor/rigor that a generator, receiver, recycler might invest in environmental

protection could wane as oversight and compliance requirements are reduced or eliminated. 

2. Hazard Characterization

The transition to this section should be clear. It’s not clear that this section is distinct from the prior rule 

discussion (the “Introduction”). This is a graphics issue.

The discussion of hazards associated with mainly the 2 selected vectors is clear. Hazards are extensive in 

contrast to reducing the levels of regulatory oversight provided by RCRA. Should all 4 legitimacy factors 

should be mandatory in view of the hazards? What about release reporting? Should releases be grounds 

for losing exclusion and HSW status? How is a significant release determined?

In view of the stated hazards, could managing HSW as a valuable commodity influence the generator, 

receiver, recycler and affect compliance? This goes to the concept of legitimacy. Would the mandating a 

showing of economic value militate in favor of safeguards against releases, spillage?

If wastes that are going to be recycled as hazardous as wastes that are not recycled, are both equally likely 

to be mishandled? Are the regulatory and enforcement tools provided by the DSW Rule commensurate 

with the task of ensuring compliance?
Deeohn Ferris, J.D.

64

2a. Clarity of Potential Scenarios

The description of potential scenarios is clear. 

The chart situated in the “Overview” section, which describes the 3 relevant exclusions is clear and 

concise. The applicability of RCRA (or not) is readily discernible from the scenarios.

2b. Plausibility of Potential Scenarios

The Scenarios are plausible. 

Is there a significant possibility that small businesses could be more vulnerable to sham recycling if many 

won’t have the capacity and staffing to thoroughly assess recyclers?

The DSW Rule could inadvertently encourage mismanagement while transitioning materials into the 

recycling stream. Does the Rule apply where HSW is recycled into even more toxic products? 

Should notice be the hazard quid pro quo for the exclusions which provide the benefit of different 

(reclamation), streamlined treatment of HSW?

Without adequate record-keeping and environmental protection safeguards (streamlined requirements 

would not be objectionable), the international export exclusion/scenario is troubling re potential releases, 

impacts, whether or not the recipient nation has genuine knowledge of the contents and consents to the 

receiving the export; see e.g., Circle of Poison and pesticide regulation. 

2c. Accuracy of EPA Hazard Analysis

The selection of electric arc furnace dust and solvent wastes as national HSM proxies appears sound based 

on the analysis. Excluding used oil, non-ferrous metals and scrap metals from the hazard analysis, although 

associated with “damages cases?” 

How and when does enforcement after a “significant” release occur? How is the determination made as to 

what constitutes a significant release? Which party has the burden of proof? It would seem that placing the 

burden of proof on the party that causes or is responsible for the release should bear the burden of proof 

opposed to, for example, the governmental entity. 

Intervening prior to a release is clearly preferable – the possibility of enforcement action prior to a release 

would be protective and more likely in the event that there are clear regulations e.g., storage limitations, 

labeling requirements and requirements related to the integrity of storage containers and areas.
Deeohn Ferris, J.D.

65

Does worker training (e.g., protection standards, labeling, handling) or the lack of it at relevant/specified 

facilities factor into the EPA hazard analysis?

Does emergency response and planning, the existence or lack of these programs, factor into the EPA hazard 

analysis? Similarly, does eliminating the requirement for a Manifest (or some version of a tracking 

mechanism) factor into possible increases or reductions in the emergency response preparedness and 

planning, enforcement or compliance monitoring? 

Would streamlined, but standardized HSW reporting on a Manifest or comparable document be feasible, 

e.g., for state and local government, the industry?

Compliance with financial assurance can be a high hurdle given conditions imposed by the environmental 

insurance market. All parties under this rule should be required to comply with financial assurance. Would 

requiring management standards for reclamation facilities that don’t have RCRA permits strengthen the 

DSW Rule by increasing or reducing the potential for environmental releases and/or disproportionate 

negative impacts?

Does the EPA hazard analysis factor imposition (or not) of container integrity and container management 

standards into the determination of the potential or actual hazards associated with higher storage volumes, 

and/or higher concentrations of HSW? What constitutes a safe “container?” Does the analysis factor in 

whether making storage subject to controls, environmental monitoring and inspections increases or reduces 

community protection?

Intermediate facilities and off-site HSM self policing may not be effective as a means to ensure protection 

of health and the environment in communities whether disproportionately affected or not.

2d. Accuracy of EPA Differences Analysis

The threat of post facto CERCLA liability is not interchangeable with up-front environmental protection 

standards, notice and record-keeping requirements. Streamlined record, keeping, tracking and monitoring 

would contribute to ensuring that toxic wastes are not dumped illegally dumped in disproportionately 

affected communities and would contribute to ensuring that HSW is safely delivered to the recycling 

facility.

The DSW Rule could be characterized, to some extent, as industry self-certification on HSW, which 

contrasts sharply with RCRA’s historic cradle-to-grave framework and preventative approach to hazardous 

waste management and disposal.
Deeohn Ferris, J.D.

66

Generators and third party reclaimers must file notices – they should be required or the HSW should be 

treated as hazardous waste.

Audits of reclaimers are not the same as or superior to periodic inspections or other agency oversight. 

3. Identification of Potentially Affected Communities

The transition to this section should be clear. It’s not clear that this section is distinct from the prior rule 

discussion. This is a graphics issue.

Does the large number of damages cases support granting the transfer-based exclusion?

Diversion of materials from the waste stream is beneficial (although on it face, without safeguards, 

reclamation falls short of environmental justice) and should be accompanied by adequate protections for 

health and the environment.

3a. Correct Identification of Recycling Facilities

Are the facilities that gave notice located; in disproportionately affected communities or not? The 

recycling exclusions should not exacerbate impacts or exposures in these communities. A troubling 

compliance history could signal future endangerment of the health and the environment.

3b. Appropriateness of EPA 25-ton Threshold

Is the 25-ton threshold empirical?

3c. Appropriateness of Identification of Potentially Affected Communities and Populations 

+ 3km Circle

EPA synchronizes with Professor Paul Mohai and Professor Robin Saha who are doing cutting edge 

demographic analysis. Their work shows increasing disproportionality, for example, nationally, people of 

color now make up the majority of those living within 3-km of such facilities and that where facilities 

cluster they make up over two-thirds. These are the highest concentrations of people of color ever reported 

from a national study of the distribution of hazardous waste facilities. Furthermore, when applying their 

recommended statistical analysis, it was found that racial disparities persist even when controlling for 

socioeconomic factors such as income, housing values, education, and employment status.
Deeohn Ferris, J.D.

67

4. Analysis of Demographics of Potentially Affected Communities

The transition to this section should be clear. It’s not clear that this section is distinct from the prior rule 

discussion. This is a graphics issue.

4a. Appropriateness of Data Sources for Demographic Analysis

EPA synchronizes with Professor Paul Mohai and Professor Robin Saha who are doing cutting edge 

demographic analysis. Their work shows increasing disproportionality, for example, nationally, people of 

color now make up the majority of those living within 3-km of such facilities and that where facilities 

cluster they make up over two-thirds. These are the highest concentrations of people of color ever reported 

from a national study of the distribution of hazardous waste facilities. Furthermore, when applying their 

recommended statistical analysis, it was found that racial disparities persist even when controlling for 

socioeconomic factors such as income, housing values, education, and employment status.

4b. Appropriateness of Environmental Justice Analysis Characteristics

Is the preventative approach a reasonable starting point when evaluating harm to the environment and 

public health.

Without RCRA status or Treatment, Storage and Disposal (TSD) protections, communities will many 

facilities are not required to get a permit, provide notice and opportunity to comment, address public input, 

monitor or be subject to protective container standards or storage time limits. These are baseline historic 

protections that, while they do exist, as regards most environmental statutes, they haven’t been updated to 

reflect the “real world” since original passage. 

Furthermore, taking advantage of existing public participation mandates commonly requires a massive 

investment of usually volunteer community resources to engage in a process that is time consuming and 

expensive and in which, comparatively, the private sector and government stakeholders have extensive 

resources and dedicated staff. 

Have either the absence of these protections or the “real world” limitations on a community’s ability to 

publicly participate been evaluated as an impact upon low income communities and communities of color?

Notice requirements inform communities, the public and municipalities about how HSW is being managed 

and recycled. How would the public learn about releases, spillage without notice, monitoring, 
Deeohn Ferris, J.D.

68

recordkeeping; how would they advocate safeguards or alternatives? Streamlined requirements would be 

preferable to none.

In disproportionately affected communities, the issue is not whether there will be impacts; rather the issue 

is what the full extent of the hazard impacts will be. 

Should recyclers be required to demonstrate a history of compliance prior to benefiting from the 

exclusions? Are the facilities that gave notice disproportionately located in low income and communities 

of color?

Potential impacts associated with transportation of HSW warrant a closer look.

4c. Appropriateness of Areal Apportionment Methodology

EPA synchronizes with Professor Paul Mohai and Professor Robin Saha who are doing cutting edge 

demographic analysis. Their work shows increasing disproportionality, for example, nationally, people of 

color now make up the majority of those living within 3-km of such facilities and that where facilities 

cluster they make up over two-thirds. These are the highest concentrations of people of color ever reported 

from a national study of the distribution of hazardous waste facilities. Furthermore, when applying their 

recommended statistical analysis, it was found that racial disparities persist even when controlling for

socioeconomic factors such as income, housing values, education, and employment status.

4d. Scientifically Appropriateness of Statistical Analysis for Assessing Environmental 

Justice Concerns

EPA synchronizes with Professor Paul Mohai and Professor Robin Saha who are doing cutting edge 

demographic analysis. Their work shows increasing disproportionality, for example, nationally, people of 

color now make up the majority of those living within 3-km of hazardous waste facilities and that where 

facilities cluster they make up over two-thirds. These are the highest concentrations of people of color ever 

reported from a national study of the distribution of hazardous waste facilities. Furthermore, when applying 

their recommended statistical analysis, it was found that racial disparities persist even when controlling for 

socioeconomic factors such as income, housing values, education, and employment status.

4e. Propriety of Statistical Analysis

EPA synchronizes with Professor Paul Mohai and Professor Robin Saha who are doing cutting edge 

demographic analysis. Their work shows increasing disproportionality, for example, nationally, people of 
Deeohn Ferris, J.D.

69

color now make up the majority of those living within 3-km of hazardous waste facilities and that where 

facilities cluster they make up over two-thirds. These are the highest concentrations of people of color ever 

reported from a national study of the distribution of hazardous waste facilities. Furthermore, when applying 

their recommended statistical analysis, it was found that racial disparities persist even when controlling for 

socioeconomic factors such as income, housing values, education, and employment status.

4f. Accuracy and Thoroughness of Assumptions 

Assumptions appear accurate; however at this reading, this reviewer cannot determine whether they are 

thorough. 

Would assessment of an additional number of damages case affect the assumptions? 

4g. Appropriateness of Uncertainties in Data Input in Analysis

Uncertainties in the data input in the analysis appear to be appropriate.

4h. Demographic Analysis Alternatives

1. Damages timeframe

The reviewer is uncertain if this analysis will yield additional useful information without an 

assessment of additional cases.

2. Comparison of Potentially Affected Areas and Non-Affected Areas

The reviewer is uncertain if this analysis will yield additional useful information other than 

another take on areas where disproportionate impacts occur.

3. Compare Host Metropolitan Areas for Facilities

This comparison may yield information about metropolitan areas where disproportionate impacts 

exist.

Has EPA evaluated additional damages cases? Is the pool of 218 adequate to reveal the widest reasonable 

range of damages, potential damages and types of comparisons?

Do host metropolitan areas factor in rural areas where capacity, including staffing, to oversee HSM 

facilities may be more limited compared to urban and suburban areas.
Deeohn Ferris, J.D.

70

5. Other Factors That Affect Vulnerability in Communities

The transition to this section should be clear. It’s not clear that this section is distinct from the prior rule 

discussion. This is a graphics issue.

5a. Accuracy of Description of Other Factors That May Affect Vulnerability

The description of other factors that may affect vulnerability is accurate. 

The DSW Rule contains sound baseline vulnerability factors. 

Where does immigrant status factor into vulnerability factors?

Should whether the generator is a small business factor into community vulnerability? For example, some 

small businesses could be less likely due to capacity to conduct in-depth due diligence or examinations of 

HSW facilities or how their wastes are recycled.

What is the universe of industrial facilities that may be generators of HSW and how do they factor into this 

analysis? How do industrial facilities factor into the potential impacts analysis?

5b. Broad or Short Discussion of Factor Categories

What are “structural” reasons as stated in section 5.1.4? 

Ability to participate in the decision making process is a stated environmental justice vulnerability; 

however, this section states explicitly (in clear contradiction) that community input is not required of 

facilities or regulators.

The section is clear that lower participation levels can translate into experiencing greater negative impacts 

since “their input has not been considered fully, particularly if competing interests are set forth more 

effectively.” 

Does the importance and/or benefit of recycling override the value of public participation especially where 

disproportionality is an issue? Additionally, the studies show that facilities which have notified already 

show multiple facilities, higher disease incidence and a dearth of hospitals in the 3-km area.

5c. Additional Factors, If Any

Immigrant status, particularly new immigrants and undocumented workers and residents constitute an 

important additional factor.
Deeohn Ferris, J.D.

71

Unfunded mandates would affect EPA ability to ensure compliance if enforcement is left to states that 

don’t have the budget to inspect, monitor, notify the public or implement public involvement.

6. Conclusions

The transition to this section should be clear. This is a graphics issue.

6a. Conclusions Supported By Analysis

The analysis and conclusions are extensive.

Arguably, DSW Rule conclusions supporting exclusion of HSW from RCRA protections are not 

thoroughly supported by the analysis as it pertains, in particular, to multiple (disproportionate?) impacts, 

potential hazards and public participation.

6b. Accuracy and Clarity of Differences Between Community-Level and Population Level 

Analysis

The differences between community level and population level analysis are clear. 

6c. Additional Information With Significant Impact on Conclusions

Specific and explicit storage timeframes and container requirements would facilitate safer handling by 

reducing the prospects for potential explosions, spills and other uncontrolled releases of HSM.

Off-site reclamation – regulatory safeguards that ensure proper management of HSW while on-site and 

during shipment are important.

Is there sufficient analysis of the impacts of storing HSW in land-based units such as pits, ponds and 

lagoons. Should standard RCRA regulatory controls apply where HSW is stored in such land-based units?

Does the DSW Rule consider the affects of tracking, monitoring and enforcement across multiple state 

lines or, nationally, whether HSW transport will operate smoothly across multiple state programs? Is there 

favorable or negative impact on interstate commerce?

What constitutes “reasonable effort” is not clear. This may not be a sufficiently high bar to deter 

mismanagement of HSW and could encourage high risk conduct.

Should record-keeping include quantities of HSW generated? This data would be useful for emergency 

planning and response as well as helpful to determining economic and environmental benefit.
Deeohn Ferris, J.D.

72

Has EPA assessed profitability and the viability of end-use markets for various HSW and facilities? Would 

lack of markets affect, encourage or discourage a facility from taking steps and investing in protecting 

health and the environment?

Does the DSW Rule facilitate broad adoption by the states and state implementation?

Tribes, including Inuits, will need additional resources to staff and implement the DSW Rule. Should more 

cases on Native lands be included in the damages cases analysis?

Encouraging recycling should be possible while retaining a reasonable assurance of regulatory protection 

for health and the environment. 
73

COMMENTS SUBMITTED BY

Diane S. Henshel, Ph.D.

Owner and Sole Proprietor, Henshel EnviroComm Consulting

and

Associate Professor, School of Public and Environmental Affairs

Indiana University

1315 E 10th, #340

Bloomington, IN 47405

812-855-4556

Email: dhenshel@indiana.edu

Diane S. Henshel, Ph.D.

75

External Peer Review for EPA’s Draft Definition of Solid Waste Final Rule

Environmental Justice Analysis

Response to Charge Questions by Dr. Diane S. Henshel

General

Ga. Please state your overall assessment of the content, readability and utility of this report, 

including any changes needed. 

a. Content: The environmental justice assessment process undergone was a reasonably thorough approach 

to assessing environmental justice concerns associated with the 2008 DSW rule. However, there was a 

lot of repetition that seemed to involve just copying and pasting the same statements and phrases over 

and over again, and rarely elaborated in depth. In addition, the analysis never included taking the 

example situations (places where greater exposure by the neighbors could occur, for example) and 

quantifying the potential impact on the neighboring community (maybe within the 3 km diameter 

defined “proximity to site” area). Using the basic approaches for predictive risk assessment, one would 

take the real situation, make assumptions for the average and high end of the range for the increased 

exposure situation, calculate the potential increased exposure to the chemicals, and then calculate the 

potential for increased risk, with average and high end assumptions. At least one such scenario 

calculated for each situation identified as potentially increasing exposure under the new regulations 

would be helpful in determining just how critical revising the regulations would be. It would have 

been even better to then recalculate the exposure and risk inherent in at least a few scenarios with the 

assumptions made under the recommendations for revision of the 2008 DSW rule, weak and nonspecific as those recommendations were. 

b. Readability. Unfortunately, this document is pretty standard for an EPA document. If the audience is 

only technical, the document is usable and readable. If the audience is intended to be the EJ 

communities and include a non-technical audience, this document is dense and difficult to read. There 

is also a lot of “spaghetti” logic – explanations that are internally referencing without sufficient 

definition of terms or acronyms. The document is missing some key components that would make it 

more readable. These include: 

- A Glossary

- A list of abbreviations and acronyms

- Remembering to define every acronym the first time it is used in every chapter, and in the legend 

for every table.

- A few diagrammatic algorithms that could help explain two complexities:
Diane S. Henshel, Ph.D.

76

o The regulations that apply under each condition that increases exposure under the new 

2008 DSW. This algorithm could be bilaterally symmetrical – taking the reader through 

the process, and when there is a change that occurs due to the regulations, the algorithm 

can identify the regulations in play and not in play for each set of exposure conditions (as 

in longer stored waste materials, transport exposure, etc). One side of the symmetrical 

algorithm would identify regulations in play before the new 2008 DSW regulations, and 

the other side would identify the regulations in play after the new 2008 DSW regulations.

o A second algorithm that would be useful would be to outline the framework, the process 

used to analyze the environmental justice concerns about the 2008 DSW rules. This 

algorithm could then tersely identify each step in the process and the implications for the 

outcomes of each step.

c. Utility. This analysis and report does demonstrate that there already is a bias in the location of the 

facilities that already produce hazardous waste, and this includes a bias in the facilities that might 

utilize this rule to increase storage time and volume of exempted otherwise hazardous materials. The 

environmental justice analysis could have been more complete. Further discussion of other approaches 

are included below. The report does make reasonably recommendations for some of the ways that the 

environmental justice concerns might by reduced, although the discussion of these abbreviated 

comments was both vague and needed elaboration. 

Gb. Is this information accurately and clearly presented? How might the document be 

improved?

a. Needed improvements for clarity: As mentioned above, it would be very helpful for the general reader 

to provide a Table of Abbreviations/Acronyms and a Glossary, in addition to remembering to follow 

some other basic rules of clear communication as outlined above (Readability). In addition, the 

excessive use of acronyms makes the document very hard for any lay reader to read. It makes the 

document hard to read for even an expert, as one must constantly look for the meaning of the new

acronyms that pop up pages after they have been defined. It would be helpful, should the acronyms 

stay in such a density, to provide a list of acronyms used on each page in a footnote at the bottom of 

each page.

b. The Wind Dispersal category would be better (and less confusingly) labeled as “Particulate [or Dust] 

Wind Dispersal.”

c. There is no need to repeat the exact same phrases multiple times without additional elaboration.
Diane S. Henshel, Ph.D.

77

d. In no scenario was there a consideration of generators who consistently function in violation of the 

regulations once they start handling waste under the 2008 DSW rule. As there are such companies, this 

would seem to be a scenario to include, or at least discuss, in an EJ analysis. 

e. No scenario considered the possibility of the impact on the community if a generator acting under the 

2008 DSW rules goes out of business with accumulated, non-processed, possibly not appropriately 

contained excluded hazardous material waste on the property. Yet this situation would only happen 

(legally) under the 2008 regulations, not under the previous HSM regulations. 

f. The methods for analysis of environmental justice impacts (as in biases in the siting) are not as 

sensitive as might be obtained with using regression analysis and grouping the data into maybe 

quartiles rather than doing all analyses on data that has only been divided into two categories (ie 

equivalent of yes/no data).

Gc. Does the document adequately review, present, analyze and summarize the available data? 

If not, what can be improved?

a. This is a nice review of the data. This is a nice first analysis. Improvements can be made. This 

question is a perfect example of the redundancy that could be avoided.

Executive Summary

ESa. Is the Executive Summary clear and easy to read?

a. The executive summary is readable. The executive summary needs to include definitions of terms used 

(for example, “notification facilities,” “damage case facilities,” etc). In addition, the last sentence on 

page ix (starts “In addition,...”) is unclear and needs rewriting. Similarly the last sentence on page xi 

needs additional clarity. The summary of Finding 4 should include some discussion of the other three 

categories not discussed in the executive summary (example, susceptible populations). You might 

include leaking septics in the list on the top of page xiii (under multiple and cumulative effects), as 

leaking septics are more likely to be addressed more slowly, and thus pose a higher health risk, in low 

income communities.

ESb. Does the Executive Summary provide an accurate view of the contents, findings, and 

conclusions of the analysis? If not, please specify how it could be improved.

a. See above comments. But yes, the Executive Summary does provide a reasonably accurate view of the 

findings and conclusions of this analysis.
Diane S. Henshel, Ph.D.

78

1. Introduction

1a. Does the Introduction clearly lay out the contents of the analysis? If not, please describe 

how it could be improved.

a. No complaints.

2. Hazard Characterization

2a. Do the potential scenarios under the definition of solid waste final rule clearly describe how 

EPA thinks facilities may react to the rule? If not, please suggest where improvements 

should be made. 

a. What is lacking overall from the analysis, from the Hazard Characterization step onward, is any 

discussion or analysis of the implications (i.e secondary consequences) of each of these assumptions 

(about the possibility of increased exposure) for total exposure and estimated changes in risk values for 

the potential EJ communities (ie those communities within 3 km of each facility, according to this 

report).

2b. Are these scenarios plausible, and are there any other likely scenarios? Please explain. 

a. “Unlikely” scenario 1: If the cost of recycling off-shore (Africa, China) are low enough, these lower 

costs will offset the additional costs of transportation to get the now excluded hazardous waste (which 

costs less also as an excluded waste, and one for which the same expensive containers do not have to 

be bought). This is a reasonable scenario (not unlikely) unless the EPA provides calculations to prove 

that the costs of transportation would never be overcome by the reduced costs of recycling in Africa or 

China. It is also disturbing that there is insufficient discussion and analysis of EJ concerns for the 

locations of the recycling plant and no discussion and analysis of EJ concerns for the locations where 

recycling is carried out in another country. (This last sentence applies as well to the whole report.)

b. Two other possible scenarios to address are listed above under “general comments”.

2c. Is EPA’s analysis of the types and quantities of hazards from the definition of solid waste 

final rule thorough and accurate? Please explain. 

a. Toxicity information: When applicable, endocrine disruption toxicity is not even mentioned. 

Developmental toxicity of heavy metals would also seem to be an important, very sensitive effects 

indictor to mention.

b. p 19 top of the page. There isn’t mention of fugitive emissions (leaks at valves, escape at points of 

transfer) as part of the way in which hazardous materials/waste can be released.
Diane S. Henshel, Ph.D.

79

2d. Is EPA’s analysis of the differences between hazardous waste regulations and the 

regulations in the definition of solid waste accurate? If not, please explain. 

Detailed Comments to Improve Writing:

a. Page 3 Inset. Typo or residual undeleted “(“ in explanation for Generator-Controlled Exclusion.

b. Section 2.3 p 30, third paragraph down – This paragraph needs rewriting to make it clearer. A 

particularly difficult sentence is sentence 3, and the logic between sentences 3 and 4 may be faulty. 

If a material’s reporting quantity is lower when it is characterized as hazardous waste then if it is 

characterized as non-waste, as written in sentence 3, then a smaller quantity would be needed 

before it exceeds the reportable quantity as a hazardous waste compared to as a non-waste, not a 

larger quantity (as currently written in sentence 3). But this does mean that if the implementation 

of the DSW results in what would otherwise be considered hazardous waste being now considered 

non-waste, then indeed more of the same material (now classified as “non-waste”) would be 

required to trigger reporting requirements then would have been true if the material were classified 

as hazardous waste.

c. P 32, end of second full paragraph. A “reasonable” effort is not defined or discussed. Without 

such discussion or clarification, a “reasonable” effort remains so open to interpretation that a phone 

call to the foreign facility owner and asking for assurances of safety would more than satisfy that 

requirement, and yet not provide any real assurance that the community and workers in the foreign 

facility would be protected from hazardous exposures.

d. p 32 end of the second bullet there’s a typo, a misplaced period.

e. As an example of a need to define terms and abbreviations, K061 is used in the footnote on page 

27 (footnote 25) without any explanation of the meaning of the term.

f. When requirements or criteria are referred to, it is important to specify and list those requirements 

or criteria, in the text, a footnote, or an inserted box. An example of such a referral to 

insufficiently explained and detailed requirements are on the top of page 28. The details about the 

“SQG” requirements are lacking.

g. The discussion about reportable quantities (second full paragraph down on page 30) needs to be 

written more clearly. The third sentence in that paragraph is particularly problematic.
Diane S. Henshel, Ph.D.

80

3. Identification of Potentially Affected Communities

3a. Has EPA correctly identified the facilities that may be likely to begin recycling hazardous 

secondary materials under the definition of solid waste exclusions? If not, what facilities are 

missing?

3b. Is EPA’s use of a threshold of 25 tons of recyclable hazardous secondary material generated 

annually an appropriate way of identifying generators that might choose to recycle onsite? 

If not, what threshold would be more appropriate?

3c. Has EPA appropriately identified the communities and populations that are potentially 

affected by these facilities? In particular is the 3-km circle the appropriate area of 

consideration? Please explain.

a. Other environmental justice analyses have used other diameters to define the proximate neighborhoods. 

On studies of Indianapolis, especially, we have tested multiple diameters (all smaller than 3 km – 0.5, 1 

and 2 km) and typically found 2 km to be a good cut-off to define proximate communities. It would 

seem that this question should be answered in the study, that is, that the study design would test 

multiple possible diameters (or donuts) around the facilities and determine which diameter provides the 

most sensitive distinction. It is quite possible that different types of facilities would have different cutoff diameters, based on differences in potential for dispersal/distribution of (excluded) hazardous waste 

(i.e. as liquid solvent waste or dust).

b. Other problems:

In conducting similar EJ analyses, using TRI facilities, we discovered that we had to truthed the facility 

addresses to the GPS coordinates by on the ground determination of whether the address listed for the 

facility was actually the address of the releasing facility or the address of company offices. Even when 

the two buildings were on the same campus, and not separated by miles, the difference between the 

buildings (between the addresses) could be a significant distance (on a mile long campus, they could be 

a mile apart), and thus could affect which neighborhoods were included in the proximate circle. From 

the information provided in chapter 3 about the methods used for obtaining GPS coordinates, it appears 

that this truthing was never done or even attempted for this analysis. No efforts were apparently made 

to ascertain whether the listed address referred to the hazardous materials processing location or to the 

main offices.

4. Analysis of Demographics of Potentially Affected Communities

4a. Are EPA’s data sources for its demographic analysis appropriate? Should EPA consider 

any additional data sources for this information? Please explain.

a. Using census data is standard protocol for many EJ analyses.
Diane S. Henshel, Ph.D.

81

4b. Did EPA select appropriate characteristics for analysis of environmental justice concerns in 

communities? 

a. The same methods and break outs should have been carried out for all analyses. There should not have 

been different protocols and analyses used for some types of facilities and not for others. There should 

have been a break out of asian, black, other minority, and possibly immigrant populations for all 

facilities.

4c. Was the choice of the areal apportionment method to determine the characteristics of the 

communities surrounding each facility appropriate and properly conducted? 

a. It appears, yes.

4d. Is a statistical analysis of these results to determine how the demographic characteristics 

compare to those on a county, state, and national level, in both urban and rural 

communities, a scientifically appropriate way to assess the existence of environmental 

justice concerns in connection with this rulemaking? Are there additional methods that 

should be considered for analyzing the environmental justice concerns with this rule?

a. Yes, statistical methods are appropriate in general. However, a more sensitive analyses seems to be to 

break the demographics up (quartiles, quintiles) into some binned division of the total range, create 

donuts around the facility, and run the analyses as a regression of the demographics against proximity. 

You are able to detect (significantly) more subtle shifting of demographics over time.

b. It is also appropriate to use the more commonly used cut-off of 2x the poverty line, since even families 

at 2x the poverty line are struggling just to provide food and shelter these days. The census determined 

poverty line (that is, above or below the threshold) does not include childcare costs, as one example of 

the kind of critical expenditures that enable both parents to work. Thus it would be appropriate to test 

poverty threshold versus 2x*poverty threshold as the criteria for determining bias in representation of 

low income populations with regard to proximity to the HSM or DSW facilities.

c. Given the neighborhoods in which these facilities are placed, it would seem to be appropriate to at least 

consider other toxic stressors, such as TRI facilities or road density as part of the EJ analysis looking at 

cumulative exposure potential (based on permit data for the HSM/potential DSW facilities for maximal 

exposure estimates).

4e. Is the statistical analysis in this section properly done?

a. There is a lot of detail provided for some of the analyses. Other analyses (producing some of the 

results listed in the tables) do not have such clear or extensive or sometimes even any clear statement 
Diane S. Henshel, Ph.D.

82

of how some calculations were made. At the very least, a clear, jargonless description of how each 

column in each table was determined should be evident in the text in proximity to the tables.

b. There needs to be an explanation of why some Fisher’s analytical results are listed as N/A.

c. Why are the same charts repeated twice? Is this necessary?

d. The analysis should be broken out by state for all the analyses, and similarly, the notification facility 

results could be summed across states, as was done for the other types of facilities, even though the 

states covered are small in number compared to the total number of states represented in the analyses 

for the other facilities. That discrepancy should be pointed out in the legend. Yet there needs to be 

some way to compare across analyses. Only summing across states for most, and separating out one 

subset of data makes it hard to compare across results.

e. The same set of demographics should be tested for all types of facilities for all types of analyses. There 

is no justification for cutting back to 4 categories of analysis for some analyses, and none is given.

f. The first set of analyses for each facility type would be better and more clearly represented by box and 

whisker plots. When using box and whisker plots, it is important to explain (for the lay audience) what 

data is represented in each part of the plots at some point in the chapter. With that explanation, the box 

and whisker plots provide more information for the comparisons, and provide a visual sense of

variability and bias around the means.

4f. Are the assumptions in the analysis presented accurately and thoroughly?

4g. Are the uncertainties in the data input into the analysis appropriately accounted for and 

discussed? 

- No – see comments above about problems with addresses linked to facilities that have corporate 

offices away from the processing facilities, even when the two buildings are on the same campus.

4h. Based on internal EPA review of the document, the Agency is considering additional 

approaches for analyzing the demographic data. The decision to conduct additional 

analyses will depend in part on timing and resource concerns. Which of the following 

analyses are most likely to yield new and/or improved information, and how would that 

information inform EPA’s decision-making process?

1. For the category of facilities from the damage case study, analyze the demographics for 

the timeframe the damages occurred.

- Your meaning is not fully clear in this question, and it is not clear what analyses you would do to 

address this question, and how you would break up the data. I am also concerned that the number 

of facilities in each group might then be so small as to really decrease power to detect significant 

differences.
Diane S. Henshel, Ph.D.

83

2. Compare potentially affected areas to non-affected areas. Compare the demographics in 

the 3-km concentric areas surrounding potentially affected facilities to demographics of 

areas in the state not containing facilities, rather than to averages for the entire state.

- Yes – this provides a better comparison group – a counterfactual.

3. Add comparison to host metropolitan areas for facilities situated in metropolitan areas. 

- Yes, this also would be a very appropriate comparison to include.

5. Other Factors that Affect Vulnerability in Communities

5a. Has EPA accurately described the other factors that may affect vulnerability in 

communities and their relevance to this analysis? 

5b. EPA has included a discussion of five broad categories of other factors that affect 

vulnerability in communities. Based on available information, only two of those appear to 

be specifically associated with the 2008 DSW rule. Is the broader discussion helpful, or 

would it be better to focus more specifically on the factors associated with the rule? Please 

explain.

a. It is better to keep the discussion broader. In this kind of document, it is important to include 

the negative results as well as the positive results.

5c. Are there any additional factors that should be described? If so, please describe.

a. Other health endpoints to consider include: low birth weight as a measure of embryonic 

development; some measure of endocrine disruption including, and particularly, thyroid disruption, 

although other endocrine function indices should also be considered, such as diabetes; and some 

measure of IQ in children, if this is available.

6. Conclusions

6a. Do the results of this analysis support EPA’s conclusions? 

a. Yes, the results support EPA’s conclusions, but likely not as well, currently, as they might with more 

extensive EJ analysis carried out on the data.
Diane S. Henshel, Ph.D.

84

6b. Has EPA clearly and accurately explained the difference between its community-level 

analysis and its population-level analysis?

a. I think so, but I am not fully sure that my answer comes from the readability and clarity of the 

explanations – I suspect my familiarity with the information is affecting my comfort with the 

descriptions.

6c. Please identify any additional information that would make a significant impact on the 

conclusions of this analysis. 

a. Table 5.1 would allow for a very nice small cluster analysis (or principal component analysis) to 

look at which emissions and types of facilities link with which endpoints, and (using maybe 

MANOVA) incorporating transportation and health care availability would be interesting as 

confounding variables.

b. The chapter analyses seem to be ignoring the risk ratio data. Since the “full” set of analyses (ie 

Fishers Exact Test, for example) did not actually carry out the full set of analyses (separating out 

Black and Asian, for example), it seems that the results might have been stronger with the 

additional analyses.

c. Table numbers are not provided.

d. Population level analysis table results seem to show that there is a numbers (sample size) bias in 

the level of statistical significance. Once the notification facilities used in the analysis are pooled, 

or incorporate facilities from other states as will, to increase sample size, chances are that these 

results will also be significant in a pooled state analysis. Thus the need to do both pooled state, and 

divided state, to assess how much of the sensitivity might be sample size. It is also important to 

note that in regions with few Blacks, or few minorities, the minority population comparisons are 

always less of a driver than the low income analysis, as in these regions, are larger percentage of 

the low income community is white. This is true in Indianapolis, where there is a significantly 

large percentage of poor whites. In Northwest Indiana, however, there are more minorities, and 

minority population comparisons drive the EJ analysis results as strongly, or more strongly, than 

the low income analysis.

e. P121 – 7

th line down in paragraph – typo – higher total population than.... I believe was intended.

f. P 123 Multiple and Cumulative Effects - note the numbers with % above 70% (most) and above 

60% (all but a few!!!) – and a cumulative frequency chart might make a nice and very visually 

effective summary of these observations.

g. The proposed regulatory and implementation measures section needs solid expansion. It’s truly 

pitiful right now. It should also be noted that without regulatory clarification of some of the 
Diane S. Henshel, Ph.D.

85

weaknesses in the 2008 DSW rule, enforcement is only as strong as the environmental 

consciousness of the administration. Even with revised regulation, enforcement and oversight is 

susceptible to political influence, just somewhat less so. Monitoring is not as much a part of the 

2008 DSW rule, so how could monitoring data be used to help ensure facilities are not creating 

more of an exposure hazard for their communities under the new rule?

h. Comments on appendices:

- Appendix A – Clarification is needed. 

1. page A-4 – second paragraph – last line – “typically 120 days following 

promulgation” of what? 

2. Page A-4 still – last paragraph – 5 lines down – please add examples here to 

each type of industry not subject to CAA regulation under the 2008 DSW rule.

3. Page A-6 third bullet – clarify if you mean leaks to only ground, to surface 

water, or also leaching to ground water – ie clarify

4. Page A-7 last bullet – capitalize OSH.

5. Page A-8 first bullet – a great example of spaghetti writing. Spaghetti writing 

makes the report more difficult to read for everyone, especially the lay person.

6. Page A-9 top of the page. A mention of the differences in monitoring would be 

appropriate here.

7. Page A-10 – second full paragraph (starts... “Further...”) - This paragraph 

needs some clarification, and needs rewriting.

8. Page A-10 section 3.9 second two paragraphs. These paragraphs are very 

unclear, and also seem to be internally inconsistent, as written. Clarify in these 

paragraphs what is included in each type of exclusion. A good example of a 

clearly written paragraph is the next paragraph (first paragraph of 3.10). This 

paragraph includes a short but clear definition which enables the reader to 

comprehend the information provided more readily. The reader does not have to 

go searching for the definition, which helps reduce reader confusion.

9. Page A-10 last paragraph, first sentence. Add clarifying phrases – what kind of 

characteristics, and where are these listed.

10. Page A-11. First paragraph needs a sentence inserted clarifying what could be 

exempted. Second paragraph needs clarification in the middle sentence –

specify briefly or provide example (in parentheses) for conditions under which 

listed waste may not be determined to be hazardous waste.

11. Table A-11 page A-13 middle column, middle section – This is too dense for the 

average reader referring only to CFR citations and statutes (in inconsistent style 
Diane S. Henshel, Ph.D.

86

no less). Provide details or names for these sections and their overall regulation 

titles in clear, jargon-free writing.

12. Table A-11 – Overall – this table (and the report) lacks any discussion of the 

implication of these changes due to the adoption of the 2008 DSW rule. An 

example might be to evaluate the implication of leaking containers, which (under 

the current vagueness of the 2008 DSW ruling language) might not be caught for 

up to 2 years, or maybe longer. What kinds of exposures might be increased to 

what diameter population under this scenario?

13. Page A -17 – why the changed font size in column 1?

14. Page A-18. Last paragraph in column 1. Include a list of the 140 toxic and 

flammable regulated chemicals referred to here, and elsewhere in the report. 

The easiest way to handle this might be a footnote, or adding the list to the 

appendices, and referring to the inserted list (footnote, endnote, or appendix) 

here and whenever else this list is referenced.

15. Page A-21 first column, second line – missing an article (“the” or “a”) between 

“above” and “specified quantity”.

16. Page A-26 – last column, first paragraph – this section (and its text tie-in) is just 

calling out for a discussion of the implications of lack of required training on 

personnel at the facility if exposures indeed rise.

17. Page A-29 first column – need a space between paragraphs.

18. Page A-30 third column, first word “these” needs clarification – to which 

regulations is the writer referring. Do not expect the lay audience to know for 

sure. Same point for page A-32 third column, last paragraph, second line and 

again page A-33 second line.

19. Page A-34 third column second paragraph. This very statement again seems to 

call out for a discussion of the implications of the lack of record keeping and 

exception reporting. It is NOT sufficient to point out that the 2008 DSW rule 

changes the recording and record keeping requirements.

20. Page A-35 first column middle paragraph – clarify, provide more detail. 

Similarly third column second paragraph – specify which excluded materials 

may not qualify as a DOT hazardous material, and provide some discussion of 

the potential implications of this from an EJ perspective.

21. Page A-36 third column second paragraph – this again needs further discussion 

here and in the text on the possible implication of this change due to the 2008 

DSW rules. Specifically, would any residues from reclamation ever be 
Diane S. Henshel, Ph.D.

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potentially hazardous and NOT get identified as such through the 2008 DSW 

process.

22. Page A-37 GCE: is something missing here? Seems like it.

23. Page A-49 right hand column, second paragraph – use the full citation, not the 

abbreviated citation. The full citation (ie using the same citation format 

throughout) is more understandable to the lay person.

24. Page A-52 right column, top line “an SPCC” fix typo

25. Page A-61 middle column, top paragraph. Keep citation format consistent and 

summarize the legitimacy criteria in this paragraph, a footnote, or the next 

paragraph.

26. Page A-63 right column. Provide examples of potential problematic emissions 

that don’t meet threshold criteria and don’t meet other applicability criteria. It 

would be great if the implications of the resultant exposure (were this to occur) 

be determined quantitatively, maybe at the mean/lower assumption (9.5 TPY 

single type HAP) and high assumption (24.95 TPY mixed HAP) levels.

27. Page A-64 – right hand column – No one in this report is discussed how much 

might be released before anything would trigger the need to determine if a 

cleanup is needed. Surely this would help explore the potential for a significant 

disproportionate impact occurring? 

28. Page A-68, right column, last sentence. Where is the “note below”? Probably 

better to put the note in a footnote on the same page or in the right hand column 

immediately after this paragraph.

29. Page A-82 on – It is great to have the summary of the Federal Regulations here. 

However, the formatting and depth of each discussion is not consistent and 

needs to be made so. For example, the most readable formats start with a 

sentence or two that talks about the relevant regulation(s) more broadly, and then 

includes a sentence that explains the relevance of the regulation to this 

report/study.

30. Page A-83 Second paragraph under “Legitimate recycling” – include a brief 

summary of the six criteria referred to here (and elsewhere) and not clearly 

defined. The listing could be in the paragraph, in an offset list, in a separated 

inset box, or in a footnote.

31. Page A-84 Top of the page – provide details about standards in 262.34 (d) and 

(e). They are not clearly described anywhere. Also maintain a consistent 

formatting for citations.
Diane S. Henshel, Ph.D.

88

32. Page A-94 Exports first paragraph last two sentences – a) remember to keep 

citations in consistent format. B) To make this document most readable, 

summarize these requirements briefly.

33. Page A-96 – No where is there a discussion of at what point in a chain of noncompliance would the chain of permission stop and oversight identify a problem 

that needs to be addressed.

34. Page A-99 bullets under 5.3.3 In each bullet, first identify the key factors that 

determine whether processes fit as Program 1, 2 or 3 (i.e. defined for the 

appropriate bullet). These three was to characterize a process are never clearly 

defined throughout this whole document. This would seem to be the place to put 

those definitions.

35. Page A-106 5.8.2 line 3 – TSDFs is an acronym that is never defined.

36. Appendix B is good to have, as is Appendix C and D. Note that in Appendix B, 

and in a few other places, the writer uses the personal “we” instead of a noun. 

This is formal writing and should not include any first person (personal) 

pronouns anywhere in the document. Search to find the “we”s and rewrite to 

replace the personal pronoun with a clearer sentence using the impersonal 3rd

person or noun.

37. Page B-2 first paragraph. Need to add a sentence that explains why it is 

important to understand what a “wastewater” versus a “nonwastewater” is.

38. Page B-3 table bottom: POTW and NPDES is not defined here or elsewhere in 

the document. Acronyms are best spelled out the first time they are used in any 

given chapter, and still it is kind to the read to provide a Table of Acronyms and 

Abbreviations, and spelling out of all acronyms in footnotes for any table in 

which they are used.

39. Appendix C is written like an abbreviated technical reference manual, but 

without the definitions usually included in such a manual. Most of this section 

reads like a jargonfest, and is not accessible to the lay reader. So, 

a. Identify all acronyms and abbreviations. There’s two in the second 

paragraph.

b. In the introductory section, explain by the K, F, U, P and D codes 

represent, how they are used, and how understanding the coding was 

needed for the environmental justice analyses.
Diane S. Henshel, Ph.D.

89

c. Explain all codes that have no other referent to explain them. For 

example, on page C-5 top line, F037-F038 codes are referred to without 

placing them in any context or defining what these codes cover.

d. Table C-1 needs some additional explanation before it will be easily read 

by the lay reader.

40. Appendix D is written in a way that is essentially understandable. However in 

two places, where groups are moved from the logical grouping to a not as 

obvious grouping, explanation is needed for why the move was made. These 

points are on Page D-3 bottom of the page, and on Page D-5 top of the page.

41. Appendix E needs some clarifying verbiage written in easy to understand 

English. The two ratios could, for example, be easily explained by one or two 

sentences. The description of the tests are more theoretical in places. Specific 

places that clarification is needed includes:

a. Page E-9 bottom of the last Fisher Exact Test paragraph, there is no 

explanation for why or when the minus sign is removed, nor where the 

minus sign is likely to show up and why.

b. Page E-10 – it is not clear what the tables are for the various states. Add 

clarifying language.

c. Since these tests are not always run (but should be) the verbiage should 

include an explanation of why they are not run in some situations in the 

analysis and are run in other, apparently similar situation.