EPA Adds Aerosol Cans to Universal Waste Regs

The U.S. Environmental Protection Agency (EPA) is adding hazardous waste aerosol cans to the universal waste program under the federal Resource Conservation and Recovery Act (RCRA) regulations.

“This change will benefit the wide variety of establishments generating and managing hazardous waste aerosol cans, including the retail sector, by providing a clear, protective system for managing discarded aerosol cans,” said EPA in a December 9 final ruling in the Federal Register. “The streamlined universal waste regulations are expected to ease regulatory burdens on retail stores and others that discard hazardous waste aerosol cans; promote the collection and recycling of these cans; and encourage the development of municipal and commercial programs to reduce the quantity of these wastes going to municipal solid waste landfills or combustors.”

The final rule is effective on February 7, 2020, and will affect those who generate, transport, treat, recycle or dispose of hazardous waste aerosol cans, unless those persons are households or very small quantity generators (VSQGs). Entities potentially affected by this action include more than 25,000 industrial facilities in 20 different industries at the two-digit North American Industry Classification System code level. An estimated 7,483 of these facilities are large quantity generators (LQG). The two top economic sectors with the largest percentage of potentially affected entities are the retail trade industry, representing 69 percent of the affected LQG universe, and manufacturing, representing 17 percent of the affected LQG universe.

On March 16, 2018, EPA published the proposal to add aerosol cans to the federal universal waste program. EPA said its proposal recognized that inclusion of this common waste stream as universal waste could better ensure that aerosol cans are managed appropriately at the end of their lives, remove these wastes from the municipal waste stream, potentially encourage recycling and reduce unnecessary burden for generators.

In addition to the universal waste management standards that apply to all universal waste handlers, such as labeling and marking, accumulation time limits, employee training, responses to releases, export requirements and, for large quantity handlers of universal waste, notification and tracking, EPA proposed specific standards that relate to the puncturing and draining of aerosol cans.

EPA proposed that puncturing and draining of aerosol cans be conducted by a commercial device specifically designed to safely puncture aerosol cans and effectively contain the residual contents as well as any emissions from the puncturing and draining activities. In addition, EPA proposed that handlers establish written procedures for safely puncturing and draining universal waste aerosol cans and ensure that employees operating the device be trained in the proper procedures. EPA proposed that puncturing of aerosol cans be done in a manner designed to prevent fires and releases and that any residuals from puncturing cans be transferred to a tank or container, at which point the handler must make a hazardous waste determination on the residuals. The proposal also included that written procedures be in place in the event of a spill or release, that a spill cleanup kit be provided and that any spills or leaks be cleaned up promptly.

In addition to these proposed standards, EPA analyzed the existing state universal waste programs that include aerosol cans. The agency requested comment on including further limitations on puncturing and draining of cans that might contain materials that pose an incompatibility hazard with other materials or establishing further limits on which types of handlers are allowed to puncture and drain aerosol cans.

Regulation of Aerosol Cans Under RCRA

Any person who generates a solid waste must determine whether the solid waste qualifies as hazardous waste. The waste may be hazardous either because it is listed as a hazardous waste in subpart D of 40 CFR part 261 or because it exhibits one or more of the characteristics of hazardous waste, as provided in subpart C of 40 CFR part 261. Aerosol cans are frequently hazardous due to the ignitability characteristic and in some cases may also contain listed waste or exhibit other hazardous waste characteristics.

Until this rulemaking goes into effect, many, but not all, generators of aerosol cans identified or listed as a hazardous waste have been subject to the full RCRA Subtitle C hazardous waste management requirements, including all applicable requirements of 40 CFR parts 260 through 268. Depending on their activities, some generators must meet only the requirements of part 262, including onsite management, pre-transport and manifesting.

VSQGs, defined as facilities that generate less than or equal to 100 kilograms of hazardous waste in a calendar month, are not subject to the RCRA Subtitle C hazardous waste management standards, provided they send their waste to a municipal solid waste landfill or non-municipal non-hazardous waste facility approved by the state for the management of VSQG wastes and meet other conditions. In addition, households that generate waste aerosol cans are exempt from the federal hazardous waste management requirements under the household hazardous waste exemption.

Facilities that treat, store and/or dispose of hazardous waste aerosol cans are subject to the requirements of 40 CFR part 264 (for permitted facilities) or the requirements of 40 CFR part 265 (for interim status facilities). However, when hazardous waste aerosol cans are recycled, the recycling process itself is not subject to regulation, except as indicated in 40 CFR 261.6(d). EPA has interpreted the current hazardous waste regulations to mean that puncturing and draining an aerosol can, if performed for the purpose of recycling (e.g. for scrap metal recycling), is considered part of the recycling process and is exempt from RCRA permitting requirements. However, until this rulemaking goes into effect, facilities receiving hazardous waste aerosol cans from offsite would require a RCRA permit for storage prior to the recycling activity, and the recycling process would be subject to subparts AA and BB of 40 CFR part 264 or 265, or subject to part 267.

Regulation Under FIFRA

Hazardous waste aerosol cans that contain pesticides are also subject to the requirements of the Federal Insecticide, Fungicide and Rodenticide Act (FIFRA), including compliance with the instructions on the label. In general, the statement on aerosol pesticide product FIFRA labels prohibits the puncturing of the cans.

However, in April 2004, EPA issued a determination that puncturing aerosol pesticide containers in the process of recycling aerosol cans is consistent with the purposes of FIFRA. Such puncturing is lawful pursuant to FIFRA provided the following conditions are met:

Retail Strategy and Aerosol Cans

The retail sector handles a large number of diverse products, which change over time and may, in many instances, become regulated as hazardous waste under RCRA when discarded. As a result, retailers are required to make hazardous waste determinations for a variety of products being discarded at stores across the country.

In 2014, EPA published a Notice of Data Availability (NODA) for the retail sector. In the NODA, EPA requested comment on a series of topics related to retail operations, waste management practices and management of materials that may become hazardous waste when discarded. This specifically included requests for information regarding aerosol cans (e.g., quantity generated, classification and management options, including handling them as universal waste), since aerosol cans comprise a large percentage of the retail sector's hazardous waste stream. Approximately 35 percent of NODA commenters specifically suggested that discarded aerosol cans be managed as universal waste.

In response to comments on the Retail Sector NODA, the agency published the “Strategy for Addressing the Retail Sector under RCRA's Regulatory Framework,” which lays out a cohesive plan to address the unique challenges faced by the retail sector in complying with RCRA regulations.

“This final rule, which adds aerosol cans to the federal universal waste program, completes EPA's commitment in the Retail Strategy to explore this option,” according to EPA. “Further, with this action, EPA has completed all commitments made in the Retail Strategy.”

State Universal Waste Programs that Include Aerosol Cans

Five states—California, Colorado, New Mexico, Ohio and Utah—already have universal waste aerosol can programs in place. Minnesota plans to propose to add aerosol cans to its universal waste regulations in 2019. The universal waste programs in all these states include streamlined management standards similar to 40 CFR part 273 for small and large quantity handlers of universal waste and a one-year accumulation time limit for the aerosol cans. In addition, the five current state universal waste programs set standards for puncturing and draining of aerosol cans by universal waste handlers.

The aerosol can universal waste programs in California, Colorado, New Mexico, Ohio and Utah allow for puncturing and draining of aerosol cans by universal waste handlers, as long as specific management standards and waste characterization requirements are met. In addition, California does not allow offsite commercial processors to puncture and drain aerosol cans without a permit and requires those handlers that do puncture and drain cans to submit a notification. Guidance in effect in Minnesota at the time of publication of this final rule also allows handlers to puncture and drain their aerosol cans.

Expected Changes in Management of Aerosol Cans

EPA expects that under the final rule, the number of aerosol cans that are diverted from municipal solid waste landfills and incinerators to recycling or disposal in Subtitle C facilities will increase. Following implementation of this rule, some generators will likely begin managing their aerosol cans as a universal waste, either to save money or to improve implementation of their existing waste management program.

One provision of the Universal Waste Rule allows consolidation of aerosol cans at central locations, making it easier for smaller generators to arrange for hazardous waste recycling or disposal of these materials when they are generated, noted EPA.

“Because the streamlined structure of the universal waste standards makes aerosol can collection programs more economical, hazardous waste aerosol cans that might otherwise be sent to a municipal landfill under a VSQG or household hazardous waste exemption would be more easily collected and consolidated for hazardous waste disposal by those who are interested in managing it this way,” according to the agency. “EPA intends to encourage individual households and VSQGs to participate in such programs.”

“In summary, EPA believes that management of hazardous waste aerosol cans will best be implemented through a universal waste approach where handlers are operating within a simple, streamlined management system,” added EPA. “The universal waste program addresses the environmental concerns surrounding the management of such wastes, while at the same time putting into place a structure that will allow for and encourage increased collection of aerosol cans for recycling.”