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  4. EPA Faces Challenge to Considering Environmental Justice in DSW Rule

EPA Faces Challenge to Considering Environmental Justice in DSW Rule

Date: October 25, 2011

Source: News Room

Industry and state regulators are challenging EPA's use of environmental justice (EJ) analysis to strengthen its definition of solid waste (DSW) rule, by arguing that it is irrelevant and cannot legally be used to craft regulations. However, environmental groups that sued EPA over its current DSW rule say equity analysis proves the necessity of a stricter rule. EPA on July 6 proposed to amend the current DSW rule, first issued under the Bush administration in 2008, which relaxes certain waste management requirements to promote recycling. The rule generally defines when wastes are considered "solid wastes" subject to weaker control requirements and, by implication, when they are considered "hazardous" and subject to more stringent requirements. Along with the proposed revision to the DSW rule, EPA also released an equity analysis, to detail how the current rule impacts low-income and minority communities. The analysis is one of the first that EPA has conducted to assess the impact of its rules and represents a major priority for agency Administrator Lisa Jackson.

But industry officials and state regulators are challenging use of such an analysis as the basis for changing EPA rules, and in particular the DSW rule. In Oct. 20 comments, the American Petroleum Institute (API) argues that environmental justice considerations are not among the factors that the Resource Conservation & Recovery Act (RCRA) directs EPA to consider in defining solid waste. "Environmental justice is not a logical or useful concept for addressing the issue at hand -- i.e., what constitutes a discarded material that should be regulated as waste," API says. "Second, even if those considerations were relevant, the supporting [EJ analysis] does not fairly evaluate them."

State regulators, meanwhile, are also arguing that EPA cannot use EJ as the basis for altering regulations. "EPA's rules should be equally protective in either a densely populated urban area or an isolated, sparsely populated rural area," the Association of State & Territorial Solid Waste Management Officials (ASTSWMO) says in Oct. 20 comments. "To evaluate the technical aspects of a rule based on [EJ] circumvents the Agency's mission to protect all communities."

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