Coinciding with the June 2011 proposed revisions to the definition of solid waste, USEPA proposed for public notice and comment an "Environmental Justice Analysis" of the impact of the October 2008 rulemaking. The Environmental Justice Analysis looked critically at whether the 2008 rule accomplished the goals of resource conservation and waste reduction "…at the expense of one of the other fundamental goal(sic) of RCRA: protecting human health and the environment from hazardous waste management."

The Environmental Justice Analysis was performed by USEPA in response to a Sierra Club petition that argued the 2008 rule was not protective of minority and low-income communities. The Analysis used a 6-step process, implemented in 2010 to evaluate the 2008 rule; the Analysis, scheduled to be published in the Federal Register alongside the July 2011 proposed rulemaking, resulted in five significant findings:

  1. Hazardous secondary material recycling does pose significant potential hazards.
  2. Adverse human health impacts from hazardous secondary materials recycling has increased as a result of the 2008 rule relaxing regulation of materials subject to reclamation.
  3. Many of the communities potentially impacted by the risk of adverse impacts are minority and low-income communities, and in some cases the populations potentially impacted are disproportionately minority and/or low income.
  4. Underlying vulnerabilities traditionally associated with minority and low income communities exacerbate the potential adverse impacts of the rule.
  5. USEPA can take steps to prevent and mitigate the potential adverse impacts on minority and low-income communities.

Additional critical findings determined that the 2008 rule failed to include measures to ensure compliance with the rule:

  • created incentives for facilities to accumulate large volumes of hazardous secondary materials;
  • created increased potential for releases during storage and transportation of materials; and
  • failed to include standards neacessary for the control of wastes during storage, containment and interstate transport of wastes destined for recycling.

The findings in the Environmental Justice Analysis, and in particular the fifth finding that USEPA has the ability and obligation to prevent and mitigate adverse consequences to minority and low-income communities associated with recycling and reclamation, should be viewed as the impetus for the proposed revisions to the reclamation rulemaking. Even though the Analysis is the driver of the proposed rulemaking, it should be noted that the Analysis itself is being published in the Federal Register alongside the rulemaking order to obtain public notice and comment on the methodology and conclusions of the Analysis, separate and distinct from the solicitation of public notice and comment associated with the proposed rulemaking.