The California Department of Toxic Substances Control (DTSC) has completed the relaunch of an emergency rulemaking to refine the process by which metal shredding facilities determine when hazardous waste management requirements must be followed and clarify that “metal shredder aggregate” is not a scrap metal.
DTSC submitted an emergency rulemaking on October 15, 2021, to the California Office of Administrative Law (OAL), proposing a regulation that defines “metal shredder aggregate” and amends the state’s definition of “scrap metal” to make clear that metal shredder aggregate—the mixture of shredded material produced by metal shredding operations—is not a scrap metal. On October 25, 2021, OAL approved the rulemaking, thereby subjecting metal shredders to additional regulatory requirements under the state’s Hazardous Waste Control Law.
Prior to 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.
Since 2014, DTSC has been researching the potential environmental and public health impacts from metal shredding operations in California. In August 2021, DTSC published a final report regarding California’s metal shredding facilities and metal shredder wastes. The report discussed, among other things, DTSC’s understanding of the hazardous waste components of metal shredder aggregate, such as lead, copper, and zinc; the results of its survey of California’s metal shredding facilities; and its interpretation of how the state’s Hazardous Waste Control Law applies to metal shredding operations.
Of note, DTSC found that the applicability of the scrap metal definition to metal shredder aggregate resulted in situations where it was unclear how metal shredder aggregate is regulated in California. DTSC concluded that metal shredder aggregate is a hazardous waste and not scrap metal, and that metal shredding facilities were conducting hazardous waste treatment activities on metal shredder aggregate to reclaim recoverable ferrous and non-ferrous metals.
As a result, DTSC took emergency action to address the regulation of California’s metal shredding industry. DTSC’s latest emergency rulemaking follows a recission of a prior emergency rulemaking through which DTSC had originally proposed further regulating metal shredding operations by amending California’s definition of scrap metal to align it with federal requirements. However, and in response to concerns raised by the metal recycling industry and environmental groups, DTSC withdrew its initial rulemaking in order to address the public feedback with a new proposal. More information about the prior emergency rulemaking can be found in Morgan Lewis’s updated September 17, 2021, LawFlash, “California Issues Emergency Rulemaking to Address Regulation of Metal Shredding Wastes.”
DTSC’s emergency rulemaking establishes new rules clarifying that metal shredder aggregate is a hazardous waste and not a scrap metal. Instead of rewriting the definition of “scrap metal” as originally proposed, the new regulations define the term “metal shredder aggregate” in Title 22 of the California Code of Regulations, Sections 66260.10 and 66273.9, as the mixture generated by metal shredding facilities that comprises recoverable ferrous and nonferrous metals and other materials known as auto shredder waste, metal shredder residue, metal shredder waste, light fibrous material, or fluff. Further, the term “metal shredder aggregate” has been excluded from the definition of scrap metal. DTSC has also rescinded its former policy and procedure for regulating the management and disposal of auto shredder waste (known as OPP 88-6) since the definition of auto shredder waste is now referenced in the new definition of metal shredder aggregate.
Rather than merely seeking to align California’s definition of scrap metal with federal requirements, DTSC has elected through this revised emergency rulemaking to more explicitly clarify when metal shredding facilities conduct activities on hazardous waste rather than scrap metal. Although DTSC has indicated that it intends to make the provisions of the emergency regulations permanent through its regular rulemaking process later this year, metal shredders are subject to these new regulatory requirements now. Moving forward, metal shredders should ensure that they manage metal shredder aggregate as hazardous waste and must submit a Part A permit application within 30 days from the effective date of the new rules to continue treatment or storage activities under interim status authorization.
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