Is Scrap Metal Hazardous?

On February 24, 2017, EPA issued a response to an inquiry about what does and does not meet EPA’s definitions of “scrap metal” and “processed scrap metal,” as they relate to scrap tantalum anodes, wire, pellets, pins, and powders. RCRA defines 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."

RCRA also recognizes different classes of scrap metal under “Excluded scrap metal”:

• Processed scrap metal is scrap metal which has been manually or physically altered to either separate it into distinct materials to enhance economic value or to improve the handling of materials. Processed scrap metal includes, but is not limited to scrap metal which has been baled, shredded, sheared, chopped, crushed, flattened, cut, melted, or separated by metal type (i.e., sorted), and, fines, drosses and related materials which have been agglomerated. (Note: shredded circuit boards being sent for recycling are not considered processed scrap metal. They are covered under the exclusion from the definition of solid waste for shredded circuit boards being recycled ( § 261.4(a)(14)).

• Home scrap metal is scrap metal as generated by steel mills, foundries, and refineries such as turnings, cuttings, punchings, and borings.

• Prompt scrap metal is scrap metal as generated by the metal working/fabrication industries and includes such scrap metal as turnings, cuttings, punchings, and borings. Prompt scrap is also known as industrial or new scrap metal.

Along with confirming scrap tantalum anodes, wire, pellets, and pins as scrap metal, more generally, EPA’s response highlights that metal powders only meet the definition of scrap metal if they are agglomerated in such a way that the agglomerated material physically resembles other types of scrap metal (i.e., bits and pieces of metal parts).

In the response, EPA noted:
 

• Scrap tantalum anodes, wire, pellets, and pins meet the definition of “scrap metal” found at §261.1(c)(6). (Tantalum is a highly corrosion-resistant transition metal that is widely used as a component in metal alloys.) Thus, if these materials are legitimately recycled (i.e., meeting the factors in §260.43), they are exempt from RCRA hazardous waste regulation under §261.6(a)(3)(ii), even if they exhibit a characteristic or have become contaminated with a listed waste.

• Tantalum powders would meet the definition of scrap metal in §261.1(c)(6) only if they are agglomerated in such a way that the agglomerated material physically resembles other types of scrap metal. For example, tantalum powder that has been mixed with a binder and then sintered at high temperature to cause the particles to form a structure of high mechanical strength and density would meet the definition of “fines, drosses and related materials which have been agglomerated” and would therefore be considered “processed scrap metal” per §261.1(c)(10). Per §261.4(a)(13), “processed scrap metal” is excluded from the definition of solid waste if legitimately recycled (i.e., meeting the factors in §260.43).

• Non-agglomerated tantalum powders would not meet the definition of scrap metal in §261.1(c)(6). Thus, non-agglomerated tantalum powders that exhibit a hazardous waste characteristic per Part 261, Subpart C would be considered a hazardous waste, even when sent for recycling.

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Court Ruling On EPA Lead Paint Lead Dust Rules

On December 27, 2017, the US Court of Appeals ruled the Environmental Protection Agency must issue a proposed rule within 90 days to update lead-based paint and lead-dust hazard standards. The court also ruled that the EPA must promulgate the final rule within one year after the announcement of the proposed update.

Complaints were filed in August 2009 by multiple groups, including the Sierra Club and United Parents Against Lead National, urging the EPA to use its rule-making authority in order to more adequately protect children. Court filings requested lead-dust hazard levels to be lowered to 10 µg/ft2 for floors and 100 µg/ft2 for window sills and the standard for lead-based paint be lowered to 0.06% lead by weight. The EPA responded in October 2009 and agreed, however, since that date EPA has not provided specifics on the rule nor a date when the proposed rules would come into effect.

Lead Renovation, Repair, and Painting Program Application To Public and Commercial Buildings

US EPA has announced that it will conduct a public meeting on June 26, 2013 to gather public comment regarding extending its Lead Renovation, Repair, and Painting Program to public and commercial buildings. In 2010, EPA issued an advance notice of proposed rulemaking (ANPRM) concerning renovation, repair, and painting activities in public and commercial buildings.

EPA is in the process of determining whether these activities create lead-based paint hazards, and, for those that do, developing certification, training, and work practice requirements as directed by the Toxic Substances Control Act (TSCA). EPA has also reopened the comment period for the December 31, 2012 Federal Register document to allow for additional data and other information to be submitted by the public and interested stakeholders. EPA specifically requested information on the following:

1. The manufacture, sale, and uses of lead-based paint after 1978.
2. The use of lead-based paint on public and commercial buildings.
3. The frequency and extent of renovations of public and commercial buildings.
4. Work practices used to renovate public and commercial buildings.
5. Dust generation and transportation from exterior and interior renovations of public and commercial buildings.

Click here for further background on the application of the LBP Rule to public and commercial buildings




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Expansion of Lead Renovation, Repair, and Painting (RRP) Rule

In 2010, EPA issued an advance notice of proposed rulemaking concerning renovation, repair, and painting activities on and in public and commercial buildings. EPA is in the process of determining whether these activities create lead-based paint hazards. For those that do, EPA will develop certification, training, and work practice requirements as directed by the Toxic Substances Control Act (TSCA). EPA has now opened a comment period to allow for additional data and other information to be submitted by the public and interested stakeholders. Comments must be received on or before April 1, 2013. EPA plans to hold a public meeting on June 26, 2013.

As background, Title IV of TSCA was enacted to reduce lead exposures, particularly those resulting from lead-based paint. TSCA requires EPA to revise its Lead-based Paint Activities Regulations to apply to those renovation and remodeling activities in target housing, public buildings constructed before 1978, or commercial buildings that create lead-based paint hazards. In April 2008, EPA issued the final Lead Renovation, Repair, and Painting (RRP) Rule. The RRP Rule covers renovation, repair, and painting activities in target housing, which is most pre-1978 housing, and child-occupied facilities, defined in the rule as a subset of public and commercial buildings in which young children spend a significant amount of time.

Shortly after the RRP Rule was published, several lawsuits were filed challenging the rule, asserting that EPA failed to address renovation activities in public and commercial buildings. As part of a settlement agreement, EPA agreed to commence rulemaking to address renovations in public and commercial buildings, other than child-occupied facilities. EPA has agreed to either sign a proposed rule covering renovation, repair, and painting activities in public and commercial buildings, or determine that these activities do not create lead-based paint hazards by July 1, 2015.

In addition, EPA agreed to hold a public meeting on or before July 31, 2013, and offer an opportunity for stakeholders and other interested members of the public to provide data and other information that EPA may use in making its regulatory determinations. Of particular interest to EPA for developing a proposed rule is information concerning:

1. The manufacture, sale, and uses of lead-based paint after 1978.

2. The use of lead-based paint in and on public and commercial buildings.

3. The frequency and extent of renovations on public and commercial buildings.

4. Work practices used in renovation of public and commercial buildings.

5. Dust generation and transportation from exterior and interior renovations of public and commercial buildings.


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Implementation of the Reduction of Lead in Drinking Water Act

On August 16, 2012, the US Environmental Protection Agency (EPA) plans to host a public meeting to get input from states, manufacturers, drinking water system administrators, and other interested groups and consumers on the implementation of the Reduction of Lead in Drinking Water Act of 2011. The Act was signed on January 4, 2011, and will go into effect in January 2014. The meeting will be held at the EPA Conference Center in Arlington, VA, from 1 - 4:30 pm.

The Act amends Section 1417 of the Safe Drinking Water Act (SDWA) to prohibit the use of certain plumbing products that are not “lead free” (as defined by SDWA), and bans the introduction of products that are not “lead free.” The revision to the SDWA changed the definition of "lead-free" to a lead content with weighted average of not more than 0.25% in the wetted surface material. In addition, the Act added a specific formula for calculating lead content. Finally, the Act created two separate exemptions to the prohibitions on the use and introduction into commerce of products that are not “lead free.”

Some changes to the Act raised implementation challenges and issues that may warrant further regulatory changes. EPA says it would make any needed regulatory changes as part of the Lead and Copper Rule long-term revisions. Because the final Lead and Copper Rule revisions will be published after the effective date of SDWA revisions, the Agency intends to provide information to assist plumbing manufacturers, states, water systems, plumbing retailers, and other parties in complying with the provisions of the Act starting in 2014. Information in the public meeting will help inform these stakeholders on the regulatory revisions that will affect them.


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Risk and Technology Review RTR For Secondary Lead Smelters

In December 2010, US EPA initiated its Risk and Technology Review (RTR) for Secondary Lead Smelters. The review will address both EPA's obligation under Clean Air Act (CAA) section 112(f)(2) and 112(d)(6) to conduct a residual risk review and to conduct a technology review.

Under the "technology review" provision of CAA section 112, EPA is required to review maximum achievable control technology (MACT) standards and to revise them "as necessary (taking into account developments in practices, processes and control technologies)" no less frequently than every 8 years. Under the "residual risk" provision of CAA section 112, EPA must evaluate the MACT standards within 8 years after promulgation and promulgate standards if required to provide an ample margin of safety to protect public health or prevent an adverse environmental effect. These reviews will address possible residual risks, technology advancements, and technical deficiencies in the existing MACT.

The MACT standards for Secondary Lead Smelters, also known as the National Emissions Standards for Hazardous Air Pollutants (NESHAP) for Secondary Lead Smelters, were promulgated in 1995 under Clean Air Act Section 112(d). The standards establish emission limitations and work practice standards for all new and existing secondary lead smelters that produce refined lead from lead scrap, mainly recycled spent lead acid batteries.

EPA anticipates the RTR for Secondary Lead Smelters will be published in the Federal Register in May 2011.

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Wisconsin Lead Renovation, Repair and Painting Rule

Beginning April 22, 2010, contractors nationwide who perform renovation activities in residential homes and child-occupied facilities built before 1978 must be certified and follow specific lead-safe work practices to prevent lead contamination.

While this new requirement will apply nationwide under the U.S. Environmental Protection Agency’s (EPA) 2008 Lead Renovation, Repair and Painting Rule, Wisconsin recently passed an emergency administrative rule adopting the EPA requirements at the state level. As a result, contractors performing renovation activities in Wisconsin will be required to obtain certification through the Wisconsin Department of Health Services (WDHS), instead of the EPA. Wisconsin is the first state to receive federal approval to enforce the new EPA standards at the state level. Wisconsin’s emergency rule is expected to be finalized April 2010.

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Federal Lead Standards - Companies Agree To Early Restrictions

A number of toy manufacturers have agreed to adopt the new federal standards immediately, ahead of a new federal law ratcheting down standards for lead in toys that won't go into effect until Feb. 10, 2009. By this agreement to settle a law suit with the State of California, the companies agreed not to sell any toys they know contain lead above the soon-to-be Federal standard of 90 parts per million (ppm), The companies will also pay over $0.5 million for lead testing and improved consumer notification.

In 2008, Congress passed a consumer product safety legislation, the Consumer Product Safety Improvement Act, which:

• Lowers the standard for lead in paint and surface coatings from 600 parts per million currently to 90 parts per million after Aug. 14, 2009,
• Establishes tighter restrictions for lead in other materials used in toys, such as plastics, metals and fabrics.

Under the terms of the settlement agreement in California, the companies will:

• Implement the federal lead standards on Dec. 1, 2008, instead of Feb. 10, 2009,
• Meet the 90 ppm lead in paint standard by Dec. 1, 2008, instead of by Aug. 14, 2009,
• Meet the 300 ppm standard for lead in plastics, metals, and fabrics by Dec. 1, 2008.

If the companies find toys in excess of the lead standard, they will stop selling and distributing those toys, regardless of when the toy was made. If the companies violate the lead standard in the future, the California Attorney General can obtain penalties through an expedited enforcement process.

Caltha LLP assists manufacturers, importers and exporters in evaluating and meeting product stewardship requirements.

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