Bureau of Waste Prevention
Policy BWP-94-014
Signed by Steve DeGabriele for
Patricia Deese Stanton, Assistant Commissioner
on June 8, 1994

1. POLICY STATEMENT
This document sets forth the DEP's policy [Endnote 1] regarding reduced reporting requirements and exemption from TURA planning and fees for specified metals and metal alloys processed in certain metalworking operations, including but not limited to processes involving bending, cutting, stamping, and extruding.

The reduced reporting provisions and the exemption from planning and fees may be claimed only for those metals specified in Part A of this policy and only when the metalworking operation meets the conditions, requirements, and procedures set forth, respectively, in Parts B, C and D of this policy.

A. Applicability

  1. This policy applies only to copper and its alloys, and steels including stainless steel.
  2. This policy applies only where a metal is processed; the policy does not apply to metals that are manufactured or otherwise used. [Endnote 2]
  3. This policy does not apply to (a) metallic compounds, (b) metals or metal alloys not specified in paragraph 1(a) above or (c) lead even if the lead is a constituent of an alloy listed in paragraph 1(a).

B. Conditional Exemption and Reduced Reporting for Certain Metals
DEP will allow reduced reporting and an exemption from TURA planning and fees for a metal covered by this policy when the following conditions are met for each metal claimed under this policy.

  1. The metal must be an "input" to a process.
  2. While the physical form or shape of the metal may change during processing, the metal must remain solid and the other properties of the metal, including its chemical properties, must not change.
  3. Except for transfers of the metal as a commodity or item with value to scrap metal brokers or other recycling or reuse operations, the handling, storage, and processing activities at the facility must result, on a calendar year basis, in no releases [Endnote 3] of the metal to the environment as reportable in the following sections of the Form R: Sections 5 (RELEASES OF THE TOXIC CHEMICAL TO THE ENVIRONMENT ON-SITE) and Section 6 (TRANSFERS OF THE TOXIC CHEMICAL IN WASTES TO OFF-SITE LOCATIONS).
  4. The scrap metal generated by the metalworking operation must be collected under a "comprehensive and aggressive" recycling program as described by EPA. [Endnote 4] The scrap metal must also be sent without treatment or further processing -- except mechanical separation processing -- to a scrap metal broker or other recycling or reuse operation.
  5. The toxics user must comply with the reporting requirements described below.

C. Reporting Requirements

  1. For each metal that the toxic user seeks to have covered under this policy, the toxic user shall complete and submit to the Department: a Form R, a Form S Cover Sheet, and Section 1 of the Form S. (Completion of sections 2 and 3 of the Form S will not be required if all the conditions of this policy are met.) In Section 1, the user shall report as separate items the amount of metal shipped in or as product and the amount shipped as scrap. The certification statement in the Form S Cover Sheet shall apply not only to the Form S and Form R information but also to the information described in paragraph 2 below.
  2. Recycling Activity Report Form: The toxics user shall provide, on a form specified by DEP, such additional information necessary to demonstrate that the metalworking operation satisfies the conditions of this policy. Such information shall include, but not be limited to:
    1. a description of the steps taken, if any, to minimize the production of scrap metal, and metal disposed of, treated, or otherwise released to the environment;
    2. a statement that the scrap metal was sent without treatment or further processing -- except mechanical separation processing -- to a scrap metal broker or other recycling or reuse operation.
    3. a description of the toxic user's recycling or reuse strategy sufficient to demonstrate that this strategy is "comprehensive and aggressive." This description shall include, without limitation, the following information:
    4. a) methods employed for collecting the metal for recycling or reuse and ensuring that all discernable metal particles are so collected; b) the methods of storing and handling of the scrap metal prior to recycling or reuse; c) the name(s) and address(es) of the scrap metal broker or other recycling or reuse operation as well the type of operation(s) to which the scrap metal was transferred (unless this information was reported in the Form R); d) information to substantiate the commodity-like nature of the scrap metal, e.g., information indicating that the scrap metal has value.

D. Procedure for Modified Reporting, and Planning and Fee Exemption, for Metalworking Operations 

  1. The toxic user shall submit to the Department the Form R and Form S documents described above on or before July 1st for each prior calendar year for which the user seeks to proceed under this policy. The first page of the Form S Cover Sheet and Form S shall be clearly marked "submitted under the provisions of BWP Policy-94-014."
  2. The toxic user shall submit to the Department the Recycling Activity Report Form described above on or before July 1st for the first prior calendar year for which the user seeks to proceed under this policy. This form need not be submitted annually; provided, however, that if a change occurs in the toxic user's recycling operations that would make it less aggressive and comprehensive, the toxic user shall so notify the Department. [Endnote 5]
  3. Any toxic user seeking to claim confidentiality of information in the documents submitted under this policy shall follow the procedures set forth in 310 CMR 3.30.
  4. If the Department determines, based on information in the reports submitted under this policy or other relevant information, that the metal does not qualify under this policy, then the Department shall so notify the toxic user in writing, and the toxics user shall submit to DEP a toxics use report, develop a plan and pay applicable fees by the deadline specified in the written notice.
  5. This policy is based on information available to the Department as of the date of the policy. Should additional information indicate a need to repeal or modify the policy, the Department may take such action but any repeal or modification of this policy shall be effective for the calendar year reporting period following the calendar year in which the repeal or modification occurs.

2. BACKGROUND STATEMENT

  1. Problem Definition

    In part, this policy relies on the rationale behind the "article exemption" [Endnote 6] to establish the appropriate level of regulation for certain metals. Under the article exemption, toxic chemicals contained in articles are not regulated under TURA. Because, in general, an article is a discrete item when it enters the facility, and remains so during its normal use at the facility, the environmental and public health risks of a toxic substance contained in an article are generally less than the use of same toxic substance when it is not contained in an article.

    Many metals that would otherwise qualify under the article exemption fail to do so because the processing of the item involves a change in shape. The DEP believes, if the conditions in this policy are met, that certain uses of the metals specified in the applicability section of this policy pose a risk similar to the reduced risk posed by metals in an article.

    This is not to say, however, that there are no risks associated with metal use. For example, mining, manufacture, smelting, and general handling of metals may pose issues of concern. The DEP believes that these risks must continue to be assessed, and that, consistent with TURA and EPCRA, the public has a right to information about metal use. The level of reporting required under this policy will allow the continued assessment of risks associated with metals, and will provide the public with information about metal use.

    In addition, this policy seeks to encourage metal reuse and recycling by requiring an "aggressive and comprehensive" strategy for metal reuse and recycling in order to qualify for the planning and fee exemption. While reuse/recycling, under these circumstances is NOT toxics use reduction as defined in TURA, it is beneficial as a resource conservation measure. Furthermore, although the remelting of scrap metal may entail certain risks, it does not involve the handling of ores that can contain such toxics as arsenic (in copper ores).
  2. Implementation and Evaluation The information in these modified reports will provide a clearer picture of metal use in Massachusetts, and will allow the agencies responsible for implementing TURA to continue to assess risks associated with metal use throughout its lifecycle. The modified reports will be publicly available, as are toxics use reports. The DEP will collect and manage data from the reports in a manner consistent and compatible with data from toxics use reports.

ENDNOTES:

  1. While this policy is based on certain concepts and conditions found in the article exemption, this policy does not change the definition of "article" under TURA, or the interpretation or application of the article exemption.
  2. See 310 CMR 50.00 for the definitions of the terms "manufacture," "process," and "otherwise use."
  3. Consistent with EPA, if any amount (calculated separately for each metal) is less than or equal to 0.5 pounds, the amount may be rounded to zero. Also consistent with EPA policy, "(i)f the owner/operator has instituted a comprehensive and aggressive program for the recycle/recovery of all released material then small amounts of toxic chemical that are not, in fact, recycled/recovered due to the imperfect efficiency of virtually any recycling/recovery system should not count towards the 0.5 pound cut-off value." See EPA memorandum entitled Clarification of Article Exemption, dated June 14, 1991, from Sam Sasnett to Robert W. Hicklin.
  4. See EPA memorandum entitled Clarification of Article Exemption, dated June 14, 1991, from Sam Sasnett to Robert W. Hicklin. In effect, this memorandum defines a "comprehensive and aggressive" recycling program as one in which the facility takes all practicable steps to collect and recycle scrap. For example, a small amount of metal that may cling to worker's clothing would not negate an otherwise comprehensive and aggressive recycling program. Sweeping up metal dust and discarding it in a dumpster could negate the comprehensiveness and aggressiveness of the program.
  5. DEP recognizes that metalworking operations typically choose their scrap metal dealers based on the best available price. Changes in scrap metal dealers based on pricing decisions would not be considered a change that would normally require notice to the Department.
  6. The TURA regulations (310 CMR 50.10) define "article" as follows:
    "a manufactured item, other than an item which is manufactured at the facility: (1) which is formed to a specific shape or design during manufacture; (2) which has end use functions dependent in whole or in part upon its shape or design during end use; and (3) which does not release a toxic substance under normal conditions of processing or use of that item at the facility or establishments."