Q. Is scrap metal with Lead Based Paint (LBP) considered a hazardous waste when sent for recycling?

A. When materials are destined for recycling instead of being shipped off for disposal, they are not considered wastes, whether or not the materials exhibit hazardous characteristics. If a material is exempt from being defined as a solid waste, it cannot be considered a hazardous waste. Therefore, if scrap metal containing LBP is sent out for recycling, it would not be subject to solid and hazardous waste management regulations.

The federal rules, which New Jersey follows, define “scrap metal” at 40 CFR 261.1(c)(6) 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.” For scrap metal, there are two exemptions from regulation as a hazardous waste, provided the scrap metal is recycled. The first exemption, found at 40 CFR 261.4(a)(13), excludes from the definition of solid waste “processed scrap metal, unprocessed home scrap metal, and unprocessed prompt scrap metal being recycled”. Each of these types of scrap metal (“processed,” “home,” and “prompt”) are defined at 40 CFR 261.1(c).

The second exemption, found at 40 CFR 261.6(a)(3)(ii), exempts from hazardous waste management “scrap metal not excluded under 40 CFR 261.4(a)(13)” [the first exemption] provided it is recycled. According to a note in an EPA memorandum from 2018, this second scrap metal exemption only applies to material that would otherwise be regulated as a hazardous waste. For example, if the LBP-contaminated metal exhibited the characteristic of toxicity (e.g., for lead) it would be subject to regulation as a hazardous waste, unless it was being recycled as a scrap metal in accordance with this exemption.