Green groups are cheering a proposed rule released by U.S. EPA this week that they hope will close a dangerous hazardous waste recycling loophole created in the waning days of the George W. Bush administration.
But environmental justice advocates are especially excited about the proposal because of the "unprecedented" level of attention it gives to understanding the health impacts the 2008 rule was having on low income and minority communities. EJ experts say the proposal has set a new standard for how environmental justice issues can be factored into the rulemaking process.
Along with the proposed rule released this week, EPA also released a draft 355-page environmental justice impact analysis that studied the potential disproportionate effects of the hazardous waste recycling rule.
"I think it's unprecedented and it's very important," said Robert Bullard, who works at the Environmental Justice Resource Center at Clark Atlanta University. "It shows the issue of environmental justice was given serious consideration. We would hope that environmental justice in all the rulemaking and all the programs would be given the same level of priority."
The analysis acknowledges that while all communities create waste, where the waste ends up is not random and there are some communities that are more likely to be affected by the waste, Bullard said.
"Acknowledging that helps ensure that certain communities don't become the dumping ground for this waste and for sham recycling operations," he said.
At issue is the 2008 Definition of Solid Waste (DSW) rule, which scaled back federal oversight on hazardous waste recycling of some material from steel, chemical and pharmaceutical companies.
At the time, EPA had hoped the rule would make it more efficient for industry to recycle materials instead of sending them to landfills or incinerating them. If materials met the definition of solid waste under the 2008 rule, they were no longer treated as hazardous waste and could then be subject to less stringent disposal requirements under the Resource Conservation and Recovery Act (RCRA).
The rule was cheered by industry groups that saw it as an effort to reduce burdensome regulation and allow companies to recycle more waste that still had economic value.
But Earthjustice and the Sierra Club filed a petition in January 2009 calling on EPA to reconsider the rule, arguing that it did little to promote recycling but increased threats to public health (Greenwire, Jan. 29, 2009). One of the groups' key arguments was that the rule disproportionately harmed low-income and minority communities, which are more likely to be near facilities that take advantage of the exemption. The groups argued that whatever the government wants to label the waste, it is still hazardous and should be subject to stringent oversight.
Earthjustice noted in a release this week that 48 facilities in Iowa, New Jersey, Pennsylvania and the Virgin Islands have made use of the exemption, 39 of which are located in areas where low-income and minority communities are disproportionately represented. The group noted that many of the facilities have been subject to EPA investigations and cleanup orders or have been designated as Superfund sites.
"So far, the effect of the Bush administration rule has been to strip oversight from facilities with poor environmental records in low income and communities of color," said Abigail Dillen, an attorney for Earthjustice in a news release yesterday. "In other words, the facilities that are taking advantage of the new RCRA exemptions are precisely the facilities that raise the greatest public health and environmental justice concerns."
The proposal released this week would require facilities that recycle under the reduced regulatory requirements of the 2008 DSW rule to be subject to enhanced storage and recordkeeping requirements. In addition, companies that send hazardous materials offsite for recycling would have customized storage standards before they could send materials to a permitted hazardous waste recycling facility. The rule also seeks to cut down on companies' ability to misuse the DSW rule and dispose of hazardous waste illegally.
EPA has agreed to settle the lawsuit and deliver final action on rulemaking by Dec. 31, 2012.
"Safe recycling of hazardous materials conserves vital resources while protecting the environmental and economic health of our communities," Mathy Stanislaus, assistant administrator for EPA's Office of Solid Waste and Emergency Response, said in a statement announcing the proposed rule. "Today's proposed enhancements show EPA's commitment to achieving sustainable materials management through increased recycling, while retaining safeguards to protect vulnerable communities and the environment."