On Jan. 13, 2010, the Environmental Protection Agency (EPA) released its Draft Environmental Justice Methodology for the Definition of Solid Waste Final Rule. As had been previously announced, EPA intends to examine the potential adverse impacts of the December 2008 Definition of Solid Waste Rulemaking on minority or low income communities. In its proposed analysis, EPA may assume that facilities will not comply with the conditions in the rule that provide environmental protections, presuming releases to identify “potential hazards.”

For the first time, EPA also states that its Environmental Justice analysis may look at “existing disproportionate impacts of pre-existing regulations, whenever such an examination is practical.” EPA notes that there have been damage cases associated with recycling of (1) characteristic by-products and sludges under 40 CFR 261.2(c)(3); materials being used or reused as an ingredient or returned to the original process under 40 CFR 261.2(e); scrap metal under 40 CFR 261.4(a)(13) and 261.6(a)(3)(ii); empty drums under 40 CFR 261.7; precious metals under 40 CFR 266.70; lead acid batteries under 40 CFR 266.80; universal waste under 40 CFR Part 273; and used oil under 40 CFR Part 279.

Based on this analysis, EPA plans to review “whether one or more of these materials or activities should be regulated in some sense under Subtitle C of RCRA.”

As a result, EPA’s Environmental Justice review could impact the current recycling practices by many industries.

EPA is accepting written comments on its Draft Environmental Justice Methodology and is holding public roundtables in New Orleans, La. on Jan. 28, 2010; in Arlington, Va., on Feb. 23, 2010; and via the Web on Feb. 25, 2010.