A Hazardous Update That Will Break What Isn’t Broken
by Senator Steven Bradford (D-Gardena)
The metal recycling industry is critical to keeping our environment clean. DTSC does great work to protect Californians, but this is one case where moving too fast could destroy one of our state’s vital recycling services.
If you’re old enough, you probably remember the old joke line, which is supposed to be ironic, “I’m from the government and I’m here to help.”
It’s not really fair, of course, because government programs and personnel work hard to help people every day — from Social Security and fire and police, to disaster assistance and our court system.But occasionally a government agency tries to do something helpful and ends up taking a step too far, creating real harm to real people and to sectors of the economy that we rely upon every day. This is particularly true when due process is sacrificed in order to move faster.
One recent example of this is happening here in California. We have the Department of Toxic Substances Control (DTSC), whose job it is to protect the state and its people from the impacts of dangerous toxins and hazardous waste. The Department is seeking to expand its domain and is targeting a part of the state’s recycling infrastructure — scrap-metal recycling — that is critical to environmental protection.
The scrap-metal recycling industry has been an integral part of our recycling culture for at least as long as our environmental spirit has been in place. As the largest state, and an economic powerhouse, California businesses and consumers generate vast quantities of scrap metal every day, adding up to millions of tons per year. Most of this scrap is processed by metal-recycling plants. Under California law, recyclable scrap metal items cannot be disposed of in landfills. Even if this prohibition did not exist, all the landfills in California combined could not accommodate the huge volume of scrap metal generated in the state.
For the last couple of years, however, DTSC has been threatening to designate metal-recycling facilities as “hazardous waste treatment” facilities, requiring that they obtain hazardous waste permits and comply with an extensive set of regulations that apply only to hazardous waste. But scrap metal is not a waste, let alone a hazardous waste, and has never been classified as a hazardous waste under either California or federal law. That metal is a commodity that can even be traded internationally. The change appears harmless, but could end up causing tremendous trouble for California metal-recycling facilities. Most of these plants are located at ports and industrial sites that do not allow hazardous-waste processing. I have at least one such facility in my own district and this update could lead to their total closure.
Litigation is well underway, and good-faith discussions are ongoing with the Department about possible approaches that would address DTSC’s concerns without shutting down the whole industry. But now, before a compromise could be reached, the Department has filed a notice intending to utilize its emergency rule-making authority.
Under state law, the emergency rule-making procedure is reserved for emergency situations that imminently threaten public health and safety. DTSC’s attempt to use this process to unilaterally impose its decision on a major California industry twists the statute’s purpose and is a violation of due process.
Let’s be clear, there is no emergency here. I see no evidence that would in any way justify the emergency rule-making route. For more than 50 years, the metal-recycling industry has efficiently processed the overwhelming majority of the mountains of scrap metal California produces each year, using a variety of safe and environmentally responsible technologies, including metal shredding, sorting and separation without harming public health.
The hazardous-waste decree that the Department is pursuing through unnecessary means is an unfortunate case of bureaucratic overreach with no clear environmental benefit or justification. Without the ability to process the millions of end-of-life vehicles, appliances and other metal items produced in the state, these materials will pile up in huge numbers. Then, we may well have an actual emergency on our hands.
I implore DTSC to end its use of an emergency rule on this issue. The metal recycling industry is critical to keeping our environment clean. DTSC does great work to protect Californians, but this is one case where moving too fast could destroy one of our state’s vital recycling services. More time and consideration will avoid unintended consequences and ensure the final regulations actually achieve their goal.
Senator Steven Bradford represents California’s 35th Senate District. He was elected to the Legislature in 2009 as a member of the State Assembly and to the State Senate in 2017.