United States
Environmental Protection
Agency
Solid Waste and
Emergency Response
(5305W)
EPA 53 O-R-9 7-029
NTIS: PB97-170 945
April 1997
<&EPA Background Paper:
Exclusion to the
Definition of Solid
Waste; Excluded Scrap
Metal and Shredded
Circuit Boards Being
Recycled
Printed on paper that contains at lest 20 percent postconsumer fiber

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BACKGROUND PAPER: Exclusion to the Definition of Solid Waste: Excluded Scrap
Metal and Shredded Circuit Boards being Recycled
Excluded Scrap Metal being Recycled
The Agency proposed the exclusion of processed scrap metal and shredded
circuit boards being recycled from the Definition of Solid Waste in the January 25, 1996 proposed
Phase IV LDR supplemental rulemaking. Currently, scrap metal being reclaimed is a solid waste,
but completely exempt from RCRA Subtitle C regulations. The proposal would amend the
definition of solid waste to exclude processed scrap metal and containerized shredded circuit
boards that are being recycled from RCRA jurisdiction. In the proposal, the Agency did not
propose to make changes to the current definition of scrap metal: "bits and pieces of metal parts
(e.g., bars, turnings, rods, sheets, wire) or metal pieces that are combined together with bolts and
soldering (e.g., radiators, scrap automobiles, railroad box cars), which when worn or superfluous
can be recycled."
The proposal defined processed scrap metal as "scrap metal which has been
manually or mechanically 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 bailed, shredded, sheared, melted, agglomerated (for fines, drosses
and related materials which are not scrap metal prior to agglomeration) or separated by metal
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type." The Agency believes that processed scrap metal being recycled is distinct from other
secondary materials defined as wastes when recycled due to established markets for the material's
utilization, inherent positive economic value of the material, the physical form of the material, and
absence of damage incidents attributable to the material and is therefore sufficiently product-like
that maintaining RCRA regulatory jurisdiction over this material is not necessary. A summary of
the proposed exclusion from the definition of solid waste for shredded circuit boards being
recycled follows the discussion of comments on the proposed exclusion from the definition of
solid waste for processed scrap metal being recycled.
The Agency received approximately twenty-five comments concerning the
proposed scrap metal and shredded circuit board exclusions. The comments were generally
supportive of the exclusions. Following is a discussion of the major comments received on the
proposed processed scrap metal exclusion. Comments on the shredded circuit board exclusion
will be addressed in a following section.
In the proposal, the Agency recommended amending the definition of solid waste
to exclude processed scrap metal that is being recycled from RCRA jurisdiction. The Agency
received public comment suggesting that it expand the exclusion to cover all scrap metal being
recycled. The commenter asserts the five factors that EPA used to evaluate whether to exclude
processed scrap metal apply equally well to unprocessed scrap metal being recycled. In comments
and discussions held with the Agency to better understand the concerns, the commenters provided
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examples of various categories of unprocessed scrap metal which they believe should be
incorporated into the exclusion. The general categories that were recommended consist of
unprocessed home scrap, unprocessed prompt scrap, and unprocessed obsolete scrap. Home
scrap is scrap metal generated by steel mills, foundries, and refineries such as turnings, cuttings,
punchings, and borings. Prompt scrap, also known as industrial or new scrap metal, is generated
by the metal working/fabrication industries and includes such scrap metal as turnings, cuttings,
punchings, and borings. Obsolete scrap metal is composed of worn out metal or a metal product
that has outlived its original use such as automobile hulks, railroad cars, aluminum beverage cans,
steel beams from torn down buildings, and household appliances, Commenters assert
unprocessed home scrap metal and prompt scrap metal have economic value and are in a physical
state that limits the dispersion of metal consitutents during the handling and transport for
processing. Additionally, unprocessed home and prompt scrap metal are often difficult to
distinguish from processed scrap and creating such a distinction creates unnecessary confusion for
individual facility operators. The commenter explains that home and prompt scrap metal such as
turnings, cuttings, borings and punchings are often generated in a form that does not require
processing before shipment to a scrap recycler for accumulation or directly to a mill. Commenters
argue that these materials are substantially similar to processed scrap metal and meet the criteria
the Agency has applied to determine whether categories of scrap metal are "commodity-like" (as
used in 40 CFR Part 260.31) and not part of the waste management problem, however these
categories will not be able to claim the exclusion from the definition of solid waste because they
do not meet the conditions for processed scrap metal. The commenter recommends that the
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Agency expand the scope of the exclusion beyond processed scrap metal to also include
unprocessed home and prompt scrap metal.
Commenters also suggested that unprocessed obsolete scrap (composed of worn
out metal or a metal product that has outlived its original use such as automobile hulks, railroad
cars, aluminum beverage cans, steel beams from torn down buildings, and household appliances)
should also be covered by the exclusion if it is subject to a source control program. The
commenter explained that scrap metal recyclers frequently have a source control program in place
which is designed to implement pollution prevention measures and Best Management Practices
that reduce pollutant discharges at the source as well as provide steps to respond if a problem
should occur. The components of such a program include supplier education, warning signs,
procedures to minimize spillage and training. The commenter asserts that conditioning the
exclusion of unprocessed obsolete scrap metal to that which is subject to a source control
program will address the Agency's concerns that unprocessed scrap metal may contain leaking
fluids, or other potential contaminants that, if improperly managed, could present an
environmental concern at the facility processing the materials.
The Agency considered the recommendation to expand the scope of the
exclusion to include unprocessed scrap metal (home scrap metal, prompt scrap metal and obsolete
scrap metal subject to a source control program). As explained in the proposal, the Agency
considered five factors to determine whether processed scrap metal is "commodity-like" (as used
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in 40 CFR part 260.31(c)) and not part of the waste management problem. The five factors used
are borrowed from the partially-reclaimed variance criteria listed in 40 CFR Fart 260.31(c). The
five factors are: 1) the degree of processing the material has undergone and the degree of further
processing that is required, 2) the value of the material after it has been reclaimed, 3) the degree
to which the reclaimed material is like an analogous raw materials, 4) the extent to which an end
market for the reclaimed material is guaranteed, and 5) the extent to which a material is managed
to minimize loss. The Agency used the relevant factors from 40 CFR Part 260.31 © to determine
if these categories met the criteria for "commodity-like". The analysis for the three categories of
unprocessed scrap is summarized below.
The Agency evaluated unprocessed home scrap and prompt scrap metal and
found that these categories of scrap metal are substantially similar to processed scrap metal due to
established markets for the material's utilization, inherent positive economic value of the material,
the physical form of the material, and absence of damage incidents attributable to the material.
Based on this analysis, the Agency has determined that the scope of the exclusion should be
expanded to include both unprocessed home and prompt scrap metal. Regarding the first factor,
by definition no processing has occurred with home and prompt scrap metal, however, these
materials are similar in metal content and economic value to processed scrap metal. With respect
to the second factor of the value of the material after it has been reclaimed, although there is not
reclamation, unprocessed home and prompt scrap metal are typically traded nationally and
internationally in established markets for positive economic value (i.e., the processor is paid by the
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purchaser for the metal). In general, this scrap metal is sold under the same market specifications
for purity and physical form as processed scrap metal to ensure efficient recycling of the material.
Regarding the third factor of how a material compares to the analogous raw material, like
processed scrap metal, unprocessed home and prompt scrap metal is very similar to analogous
raw metal concentrates and intermediates. The fourth factor the Agency considered is the extent
to which an end market is guaranteed for the material. End markets at smelters, mills and
foundries for unprocessed home and prompt scrap metal are likely because of this material's
positive economic value and can be easily inserted into the manufacturing process as a substitute
for raw materials. In addition, analogous raw materials (e.g., ores) are finite and non-renewable
so their decreasing supply will also ensure that end markets exist for not only processed scrap
metal but home and prompt scrap metal as well. The fifth and final factor the Agency considered
is the extent to which the material is manage to minimize loss. Again, unprocessed home and
prompt scrap are similar to processed scrap metal in that there is little evidence or potential for
release because it is usually in a solid non-dispersible form and is managed to minimize loss
because of its economic value. In today's final rule, the Agency has expanded the scope of the
exclusion from the definition of solid waste for processed scrap metal to also include unprocessed
home and prompt scrap metal. In the final rule, the term "excluded scrap metal" will be used to
reflect this decision.
The Agency evaluated unprocessed obsolete scrap metal subject to a source
control program against each of the five factors discussed above. The Agency concluded that it
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does not have sufficient information to justify an exclusion for this category of scrap metal at this
time. Based on this analysis, the Agency has determined that the scope of the exclusion should
not be expanded at this time to include obsolete scrap metal subject to a source control program.
Regarding the first factor, by definition no processing has occurred with unprocessed obsolete
scrap metal and, the many in this category are not similar in metal content and economic value to
processed scrap metal. With respect to the second factor of the value of the material after it has
been reclaimed, unprocessed obsolete scrap metal subject to a source control plan can be traded
nationally and internationally for some positive economic value (i.e., the processor is paid by the
purchaser for the metal). Regarding the third factor of how the material compares to the
analogous raw material, unprocessed obsolete scrap metal is not similar to analogous raw metal
concentrates and intermediates. This category has properties that are inconsistent the analogous
raw material and with processed scrap metal. The fourth factor the Agency considered is the
extent to which an end market is guaranteed for the material. End markets at smelters, mills and
foundries are likely because of the positive economic value of this material. Also, a decreasing
supply of similar raw materials ensure that end markets exist for this category of scrap metal. The
fifth and final factor the Agency considered is the extent to which the material is managed to
minimize loss. If a source control plan is in place and properly implemented it is less likely that
losses will occur than if no source control plan were in place. However, the Agency is concerned
that this category of scrap metal is inconsistent enough with processed scrap metal and that there
is not sufficient data to include unprocessed obsolete scrap metal in today's exclusion. The
Agency is continuing to evaluate whether or not the regulation of these category is necessary.
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Providing an exclusion from the definition of solid waste for obsolete scrap metal at this time
would be premature and will be better addressed in the Definition of Solid Waste rulemaking to
be proposed. Therefore, in today's final rule, the Agency is not expanding the scope of the
exclusion from the definition of solid waste for processed scrap metal to also unprocessed
obsolete scrap metal. The current exemption for scrap metal being reclaimed at 40 CFR
26 L1 (c)(6) remains unchanged.
Several commenters expressed a concern that the preamble to the proposed rule
implied scrap metal would have to be processed by a scrap metal recycler to qualify for the
exclusion. One commenter explained that scrap metal processing is often a multi-step process
where some steps may take place at locations other than at a scrap metal recycler. The
commenter gave the example of a scrap generator who may cut, sort and bale scrap prior to
delivery to a scrap processor for further processing. The Agency agrees with the commenter that
the language in the preamble could lead to the conclusion that scrap metal does not qualify for the
exclusion until it is processed by a scrap metal recycler. The language in the proposal was not
intended to limit the exclusion in this way. In today's final rule, the Agency clarifies that the
exclusion for processed scrap metal being recycled applies to scrap metal that has undergone a
processing step (as defined in the preamble to the proposed rule) regardless of who does the
processing. In other words, a processing step may be performed by the generator, an intermediate
scrap handler (e.g. broker, scrap processor), or a scrap recycler. Once the scrap metal has
undergone a processing step, it may qualify for today's exclusion.
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One commenter requested an explanation of the meaning of partially processed
scrap metal and unprocessed scrap metal. In the preamble to the proposed regulation, the terms
"unprocessed" and "partially processed" scrap metal were employed. These terms were used in
clarifying the term "processed scrap metal", For instance, the Agency states in the preamble that
processing "also includes manual or other separation of unprocessed or partially processed scrap
metal into separate categories to enhance the economic value of the material." The terms are
further used to describe materials that are not considered processed scrap metal. For instance, it
is stated in the preamble that "processed scrap metal does not include any distinct components
[(e.g., mercury relays, Ni-Cd batteries)] separated from unprocessed or partially processed scrap
metal that would not otherwise meet the current definition scrap metal". One commenter
requested the Agency to clarify the definition of "unprocessed" and "partially processed" scrap
metal. Partially processed scrap metal was used in the preamble as a way of indicating that the
processed scrap metal need not be completely recycled, but may have completed one of several
steps in the process of recycling the material. For instance, scrap metal that has been cut and
sorted by a generator prior to being sent to a scrap metal recycler would meet the definition of
processed scrap metal. The term partially processed scrap metal was intended to convey this type
of activity. Therefore, in the context of this rulemaking, the term "partially processed scrap
metal" has the same meaning as the term "processed scrap metal". Additionally, the term
unprocessed scrap metal covers the universe of scrap metal which does not fall within the
definition and scope of processed scrap metal.
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One commenter suggested that the Agency create a separate category for
reusable metal materials that can be used for their original intended purpose. The commenter
asserts that creating such a distinction would encourage the reuse of materials prior to recycling.
In today's final rule, the Agency is not creating a separate category for reusable metal materials
that can be used for their original intended purpose. In comments, the commenter suggested that
establishing a separate category would be an incentive for the reconditioning and reuse of 55-
gallon steel drums and other like containers. The Agency does not believe that the regulation as
proposed is a disincentive for such activity. Currently, drum reconditioning is a form of recycling
activity and is exempt under 40 CFR part 261.2 (c). Therefore, drums being reconditioned are
not affected by today's rule. In additionally, such drums are generally fabricated from materials
such as carbon steel which do not contain hazardous constituents and would likely not be
classified as hazardous. The Agency believes that the proposed regulation does not serve as a
disincentive to reuse and therefore, a separate category is not being established in today's final
rulemaking.
The Agency received a request in public comment to clarify that scrap metal that
contains components such as batteries or mercury switches, which do not meet the current
definition of scrap metal, also do not meet the definition of processed scrap metal in the proposal.
In the preamble to the proposal, the Agency discusses materials which are not considered
processed scrap metal. The Agency explains that "processed scrap metal does not include any
distinct components separated from unprocessed or partially processed scrap metal that would not
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otherwise meet the current definition of scrap metal " One commenter expressed concern that
this may imply that items can qualify as processed scrap metal even though they include
components such as batteries and mercury switches which, when separated, cannot themselves
qualify as processed scrap metal. The language in the preamble was intended to clarify that any
distinct components that are separated from the scrap metal that would not otherwise meet the
current definition of scrap metal would not meet the definition of processed scrap metal The
language was not intended to confuse the existing definition of scrap metal In the January 4,
1985 preamble (50 FR 614), the Agency defined scrap metal as bits and pieces of metal parts
(e.g., bars, turnings, rods, sheets, wire) or metal pieces that are combined together with bolts and
soldering (e.g., radiators, scrap automobiles, railroad box cars), which when worn or superfluous
can be recycled. The Agency excluded from the definition of scrap metal: secondary materials
from smelting and refining operations (e.g., slags, drosses and sludges), liquid wastes containing
metals (e.g., spent acids and caustics), liquid metal wastes (e g,, liquid mercury), and metal-
containing wastes with a significant liquid component (e.g., spent lead acid batteries). In order
for a material to qualify as processed scrap metal, it must first meet the definition of scrap metal.
Under today's exclusion, the existing definition of scrap metal continues to apply. Therefore,
secondary materials from smelting and refining operations (e.g., slags, drosses and sludges), liquid
wastes containing metals (e.g., spent acids and caustics), liquid metal wastes (e.g., liquid
mercury), and metal-containing wastes with a significant liquid component (e.g., spent lead acid
batteries) do not meet the definition of scrap metal and therefore also not be classified as
processed scrap metal.
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Public comments identified the need for the Agency to more broadly specify
operations that are typically employed in managing scrap metal being reclaimed. One commenter
suggested that the Agency modify the definition of processed scrap metal in the proposal to
reflect these operations. The commenter explained that there are several methods frequently used
which were omitted from the definition proposed. Based on comment, chopping, crushing,
flattening, cutting and sorting are processes typically used in the processing of scrap metal for
recycling that were omitted from the proposed definition. The Agency has added these processes
to the definition of processing in today's final rule which reads: "manually or physically altered to
either separate it into distinct materials to enhance economic value or to improve the handling of
materials." Additionally, to avoid confusion, the explanation of processed scrap metal has been
reworded to clarify the the status of agglomerated fines, drosses and other related 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 that circuit boards that
are shredded and being sent for recycling are covered under the exclusion from the definition of
solid waste for shredded circuit boards being recycled (261.4(a)(12)) see discussion following)
and are not covered under the definition of excluded scrap metal.
Currently, by-products exhibiting a characteristic of hazardous waste are
excluded from the definition of solid waste when reclaimed (40 CFR part 261.2). Public
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comments agree that metal-bearing by-product materials generated during secondary materials
processing, such as slags, drosses, skimmings, and sludges, retain the current exclusion from the
definition of solid waste when reclaimed. However, commenters assert these metal-bearing by-
products have low environmental risk, possess high intrinsic value, and are recycled at high rates,
therefore appearing to meet the criteria for a partially-reclaimed material that is commodity-like
(40 CFR part 260.31(c)). Therefore, the commenter recommends that these materials be
distinguished from other by-products by providing a separate exclusion under 40 CFR part
261 4(a) for metal-bearing by-products when reclaimed. At this time, the Agency is in the process
of addressing regulation of by-product materials as part of the Definition of Solid Waste
rulemaking. Finalizing the recommended revision is beyond the scope of this rulemaking and
would be more appropriately addressed in the context of the Definition of Solid Waste
rulemaking. Thus, today's final rule does not amend the exclusion from the definition of solid
waste for metal-bearing by-product materials exhibiting a characteristic of hazardous waste when
reclaimed (40 CFR part 261.2).
Shredded Circuit Boards being Recycled

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In the proposed rule, EPA proposed to exclude shredded circuit boards being
reclaimed from the definition of solid waste in order to facilitate their recovery. 61 F R. 2339,
2361. The proposed exclusion was conditioned on the storage of the shredded circuit boards in
containers prior to recovery that would be adequate to prevent a release of the boards to the
environment. This condition was specified as a performance standard rather than a design
standard to allow the handler maximum flexibility in selecting the method of containment. Today,
EPA is finalizing this exclusion as proposed with an additional limitation that shredded circuit
boards excluded from RCRA jurisdiction be free of mercury switches, mercury relays, nickel-
cadmium batteries and lithium batteries.
EPA explained in the proposal that shredded circuit boards merit exclusion from
RCRA regulation in order to facilitate their recovery when they are properly stored in containers
to prevent their release to the environment. As presented in the proposal, the necessity for the
proposed exclusion for shredded circuit boards is that the process of shredding the circuit boards
causes the boards to lose the scrap metal exemption (see 40 CFR §261.6(a)(3)(ii)) that currently
applies to used whole circuit boards. This scrap metal exemption allows used whole circuit
boards being recycled to be shipped in commerce without being subject to RCRA regulation
including generator manifesting and export requirements. The process of shredding the boards
produces small fines from the whole board which are dispersible and do not meet the RCRA
regulatory definition of scrap metal. The application of RCRA regulatory provisions to shredded
boards may present serious disincentives to their recovery. As explained in the proposal,
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generator manifesting and export requirements may result in significant delays in shipments of
shredded boards to recovery operations such as smelters. Many intermediate precious metal
reclaimers, e.g. shredders, operate on a short cash flow and depend on prompt payment for
shipments of shredded circuit boards in order to pay the generators of the used circuit boards for
supplying them to the intermediate reclaimers.
For the following reasons, EPA believes that shredded circuit boards destined for
reclamation when properly containerized and free of mercury switches, mercury relays, nickel-
cadmium batteries and lithium batteries are an appropriate secondary material to be excluded from
RCRA regulation. As discussed in the proposal, shredding is beneficial to the recovery process.
Shredding improves the recovery of the boards by improving handling of shredded boards through
increasing the bulk density of the boards in the container during shipment. Shredding also
improves the assaying of the shipment for base metal and precious metal content by homogenizing
the load thus assuring a representative sample is taken for the assay. Shredding also destroys
proprietary information from generators or manufacturers of the boards thus better assuring
confidentiality to the generator or manufacturer when making a decision to recycle. Some
generators may be concerned about proprietary information contained in used whole circuit
boards being transferred to competitors once the boards are out of the generator's control.
Second, shredded boards have qualities which are similar to primary materials
such as virgin mineral concentrates that are processed and refined for base metal and precious
metal values. These qualities satisfy the criteria EPA considers when evaluating whether a
partially-reclaimed solid waste is commodity-like and is not part of the waste management
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problem and thus is appropriate to exclude from RCRA subtitle C jurisdiction through issuance of
a variance. EPA believes that these criteria are relevant in determining whether a general
exclusion is justified. See 40 CFR §§261.30(c)& 261.31(c). These criteria are: 1) the degree of
processing the material has undergone and the degree of further processing that is required, 2) the
value of the material after it has been reclaimed, 3) the degree to which the reclaimed material is
like an analogous raw material, 4) the extent to which an end market for the reclaimed material is
guaranteed, 5) the extent to which a material is managed to minimize loss and 6) other relevant
factors (such as the presence of cyanide or other foreign materials).
Regarding the first criterion, shredded circuit boards have been processed
through shredders, hammer mills and similar devices to decrease their size. Value is added to the
boards, as indicated above, because the boards are easier to handle, assay and ship without
concerns of generator confidentiality that might exist if the boards were shipped to the smelters as
whole boards. Further processing for the shredded boards includes both smelting and refining to
extract base metals such as copper and precious metals such as gold, silver and platinum group
metals. And while a substantial amount of further processing remains, EPA believes that
shredded circuit boards can be thought of as secondary feedstocks similar to primary ore
concentrates that have undergone beneficiation and are destined for primary mineral processing
and refining.
Regarding the second criterion of the value of the material after it has been
reclaimed, shredded circuit boards generally have positive economic value (i.e., the smelter pays
the shredder for the assayed base and precious metal value of the shipment). The typical price

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range for shredded circuit boards is between a negative SO 25 per ib. and $5 per lb. One recycling
company reported an annual average price of shredded circuit boards of $1.50 per pound which is
greater than the current market price for refined copper metal.
Regarding the third criterion of how the partially reclaimed material compares to
the analogous raw material, recyclers have indicated that shredded circuit boards typically have
assays of that average 10 percent copper, between one-half and one-third that of primary copper
concentrates. Shredded circuit board copper assays reported in literature evaluated in completion
of this rule ranged between 11 percent and 18 percent copper. Shredded circuit boards also
frequently contain precious metal values such as gold, silver or platinum that enhance the
economic value of the material. Moreover, the reported recycling efficiency for copper, gold,
silver and platinum exceeds 90 percent for this type of material.
Although toxic metal content for primary copper concentrates is variable
depending on the ore body it comes from, reported assays for circuit boards are comparable in
lead and lower in arsenic content than reported primary copper concentrate assays. Although
shredded circuit boards are comparatively dispersible in comparison to primary copper
concentrates, the conditional requirement for the exclusion stipulates that the shredded circuit
boards must be stored in containers sufficient to prevent a release to the environment prior to
recovery reduces any greater likelihood of release from shredded boards in comparison to primary
copper concentrates.
The fourth criterion EPA uses to evaluate partially-reclaimed secondary materials
is the extent to which an end market is guaranteed for the material. Continuous demand from
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primary smelters for base metals and precious metals from shredded circuit boards should result
from the positive economic value of the boards, the relative ease of handling and assaying of the
boards and the diminishing quantities of primary copper ore concentrates. According to the
Bureau of Mines Mineral Commodity Summaries 1994, reported and apparent consumption for
copper, silver and platinum group metals has either remained constant or increased between 1989
and 1993. Reported consumption of gold decreased slightly between 1989 and 1993 from 115
metric tons and 100 metric tons. Secondary gold production decreased slightly over the same
period from 158 metric tons to 130 metric tons. The price of gold declined over the same period
from $382 per troy ounce to $355 per troy ounce. By 1996, the price of gold has increased to
over $380 per troy ounce.
The fifth criterion EPA uses to evaluate partially-reclaimed materials is the extent
to which the material is managed to minimize loss. The proposed exclusion is conditioned on the
proper storage of shredded circuit boards in containers prior to recovery. As mentioned in the
proposal, the shredded boards are usually stored in super sacks (sacks that are reinforced woven
resin and designed to accomodate bulk shipments), gaylord containers (also known as tri-wall
boxes composed of three layers of cardboard with two layers of corrugation) and 55 gallon
drums. Open bulk shipments of board by rail, truck or barge are not within the scope of this
exclusion. In addition to the storage requirement, the economic value of the boards also provides
an incentive for handlers to prevent releases to the environment. At an average market value of
$ 1 50 per pound for one recycler, the incentive to prevent releases is substantial. The Agency
notes that containerization in and of itself was not the only reason the Agency concluded that

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shredded circuit boards should be excluded from the definition of solid wasste. The other five
factors supported this determination as well.
Finally, EPA considers other relevant factors when evaluating the exclusion of
partially-reclaimed materials from RCRA jurisdiction through the variance. In the context of
shredded circuit boards, other relevent factors include: 1) the presence of both materials possibly
attached to printed circuit boards that are ordinarily outside of the definition of scrap metal such
as mercury switches, mercury relays, nickel-cadmium batteries and lithium batteries, and 2) the
frequency of foreign materials mixed with but not part of the circuit board itself. EPA's concern
about these materials is discussed below.
Printed circuit boards may contain or be incorporated into electronic products
which contain mercury switches, mercury relays , nickel-cadmium batteries, and lithium batteries
EPA is concerned about the potential environmental impact of these materials that are associated
with printed circuit board production and management after the boards are spent. Ordinarily,
commercial printed circuit board recyclers, both intermediate processors (e.g. shredders) and
smelters, do not want mercury switches, mercury relays, nickel-cadmium batteries and lithium
batteries in shipments of shredded boards sent from the intermediate processor to the smelter.
However, because these items may be very small, they may, on occasion, escape visual inspection
and become shredded along with printed circuit boards. When this happens, EPA is concerned
about the potential release of mercury or cadmium to the environment. For this reason, EPA is
limiting the scope of the exclusion for shredded boards to shipments that are free of mercury

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switches, mercury relays, nickel-cadmium batteries or lithium batteries. Free of these materials
means that mercury switches, mercury relays, nickel-cadmium batteries and lithium batteries are
not or have not been part of the batch of circuit boards shredded to add value. In addition, EPA
reiterates that in enforcement actions that it is the respondent in the action who bears the burden
of proof in documenting that a material for which an exclusion is claimed from the definition of
solid waste meets the appropriate regulatory definition or exclusion. 40 CFR §261 2(f) Shredded
circuit boards that are not free of mercury switches, mercury relays, nickel-cadmium batteries, and
lithium batteries when reclaimed are solid wastes. This is so because these used shredded circuit
boards are spent materials. Spent materials being reclaimed are solid wastes that, when they
exhibit a characteristic or are listed, are also hazardous wastes. 40 CFR 261.1(b)(1), 261 2(c)(3).
As stated in the proposal, EPA established in 1992 that whole used circuit boards could be
considered scrap metal. The whole used circuit boards are therefore exempt from RCRA
regulation. See 40 CFR 261 6(a)(3)(ii) stating scrap metal being recycled is exempt from RCRA
regulation. (Please note that whole used circuit boards which contain mercury switches, mercury
relays, nickel-cadmium batteries, or lithium batteries also do not meet the definition of scrap metal
because mercury (being a liquid metal) and batteries are not within the scope of the definition of
scrap metal. See 50 F.R. 614, 624 (January 4, 1985).) As stated in the proposal shredded circuit
boards do not meet the definition of scrap metal because the shredded material contains fines
which are too small to qualify as scrap metal.' Shredded circuit boards that are not free of
mercury switches, mercury relays, nickel-cadmium batteries, and lithium batteries would be
subject to applicable parts of RCRA regulation, 40 CFR Parts 260 through 266, Part 268, Part

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270, Part 273 and Part 124. Shredded circuit boards with economically recoverable quantities of
precious metals are still eligible for conditional exemption from regulation under 40 CFR Part 266
Subpart F. This provision allows recyclable materials containing an economically recoverable
amount of precious metals to be exempt from many RCRA regulatory provisions. However,
these materials are still subject to manifesting, export and speculative accumulation requirements.
40 CFR 266.70.
Public comments received on the shredded circuit board exclusion have generally
been favorable. Commenters did raise specific concerns about: 1) the jurisdictional status of
whole circuit boards, 2) expanding the scope of the exclusion to include other secondary materials
from RCRA jurisdiction, 3) the status of circuit boards being burned and EPA policy about
incineration of printed circuit boards, 4) clarification about the existing regulatory status of
secondary materials closely related to the generation or recovery of printed circuit boards such as
spent solder baths, sweeps, fluff, baghouse dust, and solder dross.
Several commenters stated that EPA should expand the scope of the exclusion to
include whole circuit boards. The commenters believe that it does not make sense that EPA
should exclude shredded boards from jurisdiction while leaving whole boards within RCRA
jurisdiction even though they are exempt from regulation.
EPA disagrees. First, EPA notes that whole used circuit boards are less
commodity-like than shredded circuit boards because whole used boards are harder to sample for
base metal and precious metal value, This makes whole boards less commodity-like than
shredded boards because the whole boards cannot be sampled to determine their economic value
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as easily as shredded circuit boards. Second, used whole circuit boards are unprocessed obsolete
scrap metal. As mentioned above, EPA has decided in today's rulemaking to defer changing the
status of unprocessed obsolete scrap metal until next revision to the definition of solid waste and
to limit the exclusion from RCRA jurisdiction to processed scrap and unprocessed home and
prompt scrap. Therefore, third and finally, used whole circuit boards being reclaimed remain solid
wastes and if hazardous, hazardous wastes that are exempt from RCRA regulation. As such, no
RCRA regulatory requirements such as manifesting, export or storage permit requirements
currently operate as disincentives to environmentally sound recycling of whole used circuit
boards.
Several commenters requested that EPA expand the scope of the exclusion to
include other secondary materials that are currently classified as solid and hazardous wastes such
as F006 (wastewater treatment sludges from electroplating operations) and metal-bearing dusts
and fines. EPA is currently working on a proposed rule to amend the definition of solid waste and
believes that effort is the correct forum to address the status of these additional materials.
One commenter notes that in 1994 that EPA issued a policy directive through a
letter1 that the regulatory exemption at 40 CFR 261.6(a)(2)for certain recyclable materials, e.g.,
precious metal-bearing recyclable materials, are not exempt from incineration requirements and
September 19, 1994 letter from Frank McAlister, Chief, U.S.E.P.A.',
Office of Solid Waste, Assistance Branch, to Randall W. Steger, Manager, Idaho
Department of Health and Welfare, Permits and Enforcement, Operating Permits
Bureau, OSWER document number 9489.1994(02).
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wanted to know how this policy could be reconciled with the Agency's 19922 memorandum on
circuit boards that identifies burning as a possible preliminary step in recycling of whole circuit
boards. The 1994 EPA letter states that if a thermal unit burning hazardous waste is deemed to
be an incinerator then even if material recovery occurs, the material is a solid and hazardous waste
and is ineligible for the 261.6(a)(2) recycling exemption. The 1992 EPA memorandum simply
states that circuit boards are shredded or burned as part of a reclamation process without
elaborating on the type of thermal unit it is being burned in.
First, the comment is outside of the scope of the final rule. The policy the
commenter is discussing pertains to an Agency memorandum on whole circuit boards rather than
shredded circuit boards. Second, the commenter errs in assuming an apparent conflict exists
between these two Agency statements. The commenter assumes that all burning of secondary
materials must occur in incinerators instead of other thermal devices such as boilers, industrial
furnaces and miscellaneous thermal treatment units. The recycling exemption of 40 CFR 261 6
(a)(2)(iii) for precious metals reclamation would only pertain to shredded circuit boards with
economically recoverable amounts of precious metals The other recyclable materials listed in the
261,6 exemption do not pertain to circuit boards. In 1993, EPA clarified that precious metal-
bearing hazardous waste when legitimately recovered in thermal recovery units are not subject to
2 August 26, 1992 memorandum from Sylvia Lowrance, Director,
U.S.E.P.A., Office of Solid Waste to EPA Waste Management Division Directors,
Regions I-X on the Regulatory Status of Printed Circuit Boards.
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40 CFR Part 264 Subpart O incineration requirements3. The September 1994 letter does not
disturb this policy and describes the status of the thermal unit as an incinerator rather than a boiler
or industrial furnace.
Several commenters requested clarification in today's rule about the current
regulatory status of secondary materials associated with the generation or management of printed
circuit boards. These materials include: spent solder baths (pot dumps), sweeps, and baghouse
dust, and solder dross. These commenters also requested exclusion of these materials from RCRA
jurisdiction in today's rule.
Spent solder baths, also known as pot dumps, are solidified pieces of tin-lead
solder baths used in the production of printed circuit boards. Prior to 1993, EPA had classified
spent solder baths as spent materials, which, absent the scrap metal designation, would be fully
regulated under RCRA hazardous waste regulation.5 In 1993, EPA issued a letter to the Lead
Industries Association stating that spent solder baths meet the definition of scrap metal and are
therefore exempt from RCRA regulation under the regulatory exemption for scrap metal being
recycled.5 This interpretation continues to be the Agency view.
Sweeps refer alternatively to a powdered material that is a residue of thermal
recovery of precious metal-bearing secondary material (often ash that is crushed into particulate
form in a ball mill or similar device) or particulate material that is collected from firms handling
precious metals such as jewelers and metal finishers. Sweeps have been previously classified by
3 December 27, 1993 memorandum from Michael Shapiro, Director,
U.S.E.P.A., Office of Solid Waste, to Conrad S. Simon, Director, U.S.E.P.A.,
Region I, Air and Waste Management Division.

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EPA as a by-product4 As such, when sent for reclamation, sweeps are not solid waste and are
excluded from RCRA jurisdiction regulation when considered hazardous solely by exhibiting a
characteristic. Characteristic by-products are not solid wastes when reclaimed. 40 CFR Section
261.2(c)(3). In contrast, when sweeps are derived from source material that meets the description
of a listed hazardous waste, the sweeps are solid wastes that are also hazardous wastes and are
regulated under the appropriate RCRA regulation provisions. 40 CFR Section 261.2(c)(3). For
example, often combustible material such as a rag, filter or paper is used to clean up a secondary
material such as a spent solvent that may: 1) contain precious metals and 2) meets one of the
F001 through F005 listing descriptions for solvents. The rag, filter or paper will be burned to an
ash that it homogenized in order to assay its precious metal content. The ash when crushed is
turned into a sweep. The sweep carries the F-listed hazardous waste code that was associated
with the original source material (i.e., solvent). Listed by-products, in contrast to characteristic
by-products, are solid and hazardous wastes when reclaimed.
EPA has classified baghouse dust from precious metal recovery furnaces as a
sludge.5 As with the by-product classification for sweeps, baghouse dust is not a solid and
hazardous waste when it would be considered hazardous only for exhibiting a characteristic such
as toxicity. However, if the source material to the furnace contained a listed hazardous waste,
then the baghouse dust would be considered a solid and hazardous waste due to its classification
4 August 26, 1992 memorandum from Sylvia K. Lowrance, Director,
U.S.E.P.A., Office of Solid Waste to Waste Management Division Directors
U.S..E.P.A, Regions I-X on the Regulatory Status of Printed Circuit Boards.
' Ibid.
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as a listed sludge being reclaimed. Also as with the sweeps, even if the baghouse dust is a listed
sludge, it may still be conditionally exempt from RCRA regulation under 40 CFR Part 266
Subpart F if it contains economically recoverable levels of precious metals.
Finally, EPA currently classifies solder dross as a characteristic by-product when
reclaimed. As such, this material is already excluded from the definition of solid waste and not
regulated under the RCRA regulations. Therefore, including solder dross in today's final rule
would be duplicative.
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