California Issues Emergency Rulemaking to Address Regulation of Metal Shredding Wastes

September 7, 2021 (Updated September 17, 2021)

The California Department of Toxic Substance Control (DTSC) is no longer pursuing an emergency rulemaking to address hazardous waste management relating to metal shredding operations. In response to concerns raised by the metal recycling industry and environmental groups, the DTSC indicated in a September 10 statement that it was withdrawing its initial request with the Office of Administrative Law to update its rules on an emergency basis and that the DTSC intends to submit a new proposal, with a separate public comment period, in the coming weeks. The extent to which DTSC’s forthcoming proposal may differ from its previously-proposed emergency rules is not yet clear. Interested parties should continue to monitor these developments and be on the lookout for another public notice from the DTSC concerning the new rulemaking.

The DTSC recently launched an emergency rulemaking amending California’s definition of scrap metal to align it with federal requirements and clarifying the process by which metal shredding facilities will determine when hazardous waste management requirements must be followed.

The DTSC’s emergency rulemaking follows an analysis of the metal shredder industry in California that raised concerns at the DTSC regarding the nonhazardous waste classifications being used by a number of metal shredding facilities. The DTSC concluded that there are nonrecyclable components of metal shredder output that contain a large volume of California-regulated hazardous wastes including fine powders of lead, copper, and zinc. The analysis comes in the wake of a ruling by the Alameda County Superior Court ordering the DTSC to rescind a Hazardous Waste Control Law (HWCL) exemption issued to a metal shredding operation and to bring it under applicable hazardous waste management and disposal regulations. The DTSC’s analysis identified ambiguity and inconsistency in how the metal shredding industry interpreted the regulations, as well as numerous incidents at various California metal shredding facilities that raised concerns, including the risk of offsite migration and deposition of hazardous waste.


Prior to the DTSC’s action, a number of California’s scrap metal facilities used fixation technologies for metal shredder wastes so that the wastes could be classified, managed, and disposed of as nonhazardous solid waste. These facilities were typically granted the nonhazardous waste classification in what were known as “f letters” because the authority for the letters is found in subdivision (f) of Title 22, Section 66260.200 of the California Code of Regulations.

In reviewing the regulation of metal shredding facilities, the DTSC noted that the exemption states that scrap metal is not considered hazardous waste if it is a “recyclable material.” The exemption also states that scrap metal is not regulated under California’s HWCL when recycled. However, prior to the emergency regulations, the provisions failed to indicate whether all scrap metal must be recycled to qualify for the exemption. In its analysis, the DTSC noted that the lack of clarity in the definition of scrap metal and the distinction between California-regulated and federally regulated scrap metal raised issues regarding how metal shredder output is regulated in California.


The proposed emergency regulations amend California’s current definition of scrap metal by aligning it with that of the US Environmental Protection Agency. Specifically, Sections 66260.10 and 66273.9 of Title 22 will define scrap metal as “bits and pieces of metal parts (e.g., bars, turnings, rods, sheets, wire) or metal pieces that may be combined together with bolts or soldering (e.g., radiators, scrap automobiles, railroad box cars), which when worn or superfluous can be recycled.” In addition, Section 66261.6, which provides the requirement for recyclable materials, will now expressly state that only “when recycled” is scrap metal exempt under California’s HWCL.

In aligning California’s definition of scrap metal with federal requirements, the DTSC aims to clarify when metal shredding facilities conduct activities on hazardous waste rather than scrap metal, thereby requiring these facilities to seek authorization from the DTSC.


If you have questions or would like more information on the issues discussed in this LawFlash, please contact any of the following Morgan Lewis lawyers:

Los Angeles
Rick R. Rothman
David K. Brown

San Francisco
Ella Foley Gannon
Jack Stoddard