On March 5, 2018, the Administrator of the U.S. Environmental Protection Agency (“EPA”) signed a proposed rule to classify and regulate hazardous aerosol can wastes as “universal wastes” under the federal Resource Conservation and Recovery Act (“RCRA”) hazardous waste rules. As universal wastes, hazardous aerosol can wastes would be subject to substantially reduced requirements for collection and transport, in order to facilitate and encourage environmentally sound recycling or disposal. However, the ultimate recycling and disposal facilities would remain subject to essentially the same requirements as currently apply. As discussed below, even though the proposed rule would largely be consistent with existing requirements for other universal wastes, there are several aspects of the proposal that may warrant special attention.

The proposed rule would build on existing universal waste requirements for other ubiquitous hazardous wastes, such as batteries, lamps, mercury-containing equipment, and certain pesticides. See generally 40 C.F.R. Part 273. Among other things, the aerosol can wastes would not have to be labeled as hazardous wastes (although they would be subject to reduced marking requirements), they could be stored for up to one year or even longer in some cases (rather than just 90 days for large quantity generators), they could be transported offsite without a hazardous waste transporter or hazardous waste manifest, and collection facilities not engaged in treatment or disposal would not have to be permitted as hazardous waste storage facilities. In addition, only large handlers of universal wastes (e.g., facilities that accumulate 5000 kg or more of total universal wastes at any time) would be required to notify EPA and track shipments of the hazardous aerosol can wastes. Aerosol can wastes generated by households and Very Small Quantity Generators (“VSQGs”) meeting applicable requirements would remain exempt from the RCRA regulations. However, all aerosol wastes would remain subject to applicable requirements under the U.S. Department of Transportation (“DOT”) Hazardous Materials Regulations (“HMR”) (although under those rules, if aerosol cans are classified as universal wastes, they will not be subject to the enhanced DOT requirements that normally apply to RCRA hazardous wastes). See 49 C.F.R. § 171.8 (defining “hazardous waste” for purposes of the HMR as materials subject to federal hazardous waste manifest requirements).

Although the proposed rule is largely in line with prior rules for universal wastes, several aspects of the proposal are especially noteworthy, including the following:

  • Definition of Aerosol Can. The proposal would define an aerosol can as “an intact container in which gas under pressure is used to aerate and dispense any material through a valve in the form of a spray or foam.” However, this definition might exclude many products that otherwise may be viewed as aerosols, such as cans that use pressurized gas to dispense a shaving gel without aerating it or producing a spray or foam, or spray dusters or aerosol horns containing only a single compressed gas without another material that the gas is used to dispense. EPA also requests comment on whether there should be any limits on the types of aerosol cans designated as universal wastes, such as a size limit of 24 ounces.
  • Potential Application of the Definition of Solid Waste to Aerosol Cans Being Recycled. The proposal does not address the extent (if any) to which aerosol cans destined for recycling are properly classified as solid wastes (and thus potentially hazardous wastes) in the first instance, even though EPA in 2016 committed to issuing guidance on this critical issue. See EPA, “Strategy for Addressing the Retail Sector under the Resource Conservation and Recovery Act's Regulatory Framework” (September 12, 2016) at 6 (“EPA is developing a guide on how to recycle aerosol cans under the existing Subtitle C recycling exclusions”). Indeed, the proposal briefly addresses only one form of aerosol can recycling (e., recovery of scrap metal values), without mentioning other forms of recycling (e.g., recovery of hydrocarbon propellants for burning as fuel).
  • Potential Reactivity of Aerosol Cans. Although the proposal states that waste aerosol cans may be hazardous if they contain ignitable propellants (g., propane or butane) or if they contain a chemical product that is either listed or exhibits a hazardous waste characteristic, it is silent on the fundamental issue of when (if ever) waste aerosol cans might be classified as reactive hazardous wastes. See, e.g., Letter from Elizabeth A. Cotsworth, Acting Director, Office of Solid Waste, EPA, to T.L. Nebrich, Jr., Technical Director, Waste Technology Services, Inc. (May 19, 1997) (RCRA Online #14235) (“We are not at this time able to make a categorical determination as to whether various types of cans that may have contained a wide range of products exhibit the characteristic of reactivity.”).
  • Exclusion of Empty Aerosol Cans. The proposal would exclude aerosol cans that meet the regulatory definition of an empty container from the universal waste rule. However, there may be some uncertainty about when an aerosol can is properly deemed empty. (The proposal states at one point that empty cans must have “been emptied of ... both propellant and product”). Moreover, EPA has previously claimed that at least some empty aerosol cans may exhibit the characteristic of reactivity. See EPA, RCRA Hotline Report (September 1987) (RCRA Online #13027) (“Irrespective of the lack of contained waste, the [empty] aerosol cans would be a RCRA hazardous waste [to the extent] they demonstrate the hazardous characteristic of reactivity”). As a result, the proposed exclusion would apparently require any empty cans that are reactive to be handled in accordance with the full hazardous waste regulations (although at one point in the proposal, EPA states that “[a]n aerosol can that meets the definition of empty container … is not subject to hazardous waste regulation” (emphasis added)). This fact, together with EPA’s failure to explain when empty cans might be reactive, could potentially undermine the rule.
  • Exclusion of Aerosol Cans with Evidence of Leakage/Damage. The proposal would exclude from the scope of the universal waste rule any aerosol cans that “show evidence of leakage, spillage, or damage that could cause leakage under reasonably foreseeable conditions.” However, this language seems highly ambiguous, for example in the case of a can of spray paint that shows evidence of prior spraying (e.g., dried spots or dribbles of paint) or potentially even any can that is dented or missing an actuator button.
  • Allowance of Certain Processing Activities by Handlers. The proposal would allow handlers of universal waste aerosol cans to perform certain limited activities, “as long as each individual aerosol can is not breached and remains intact”: (1) sorting aerosol cans by type, (2) mixing intact cans in one container, and (3) removing actuators to reduce the risk of accidental release. Allowance of the last of these activities seems to suggest that aerosol cans without actuators could continue to be managed as universal wastes, but as noted above, the absence of an actuator might also be viewed as evidence of damage that would make an aerosol can ineligible for management as a universal waste.
  • Special Rules for Puncturing and Draining of Aerosol Cans. Even though EPA acknowledges in the proposal that puncturing and draining of hazardous aerosol cans is currently exempt from RCRA regulation if performed as part of a recycling process, the proposal would impose new requirements for puncturing and draining by handlers of universal waste aerosol cans. For example, these activities would have to be performed using a commercial device specifically designed to do so in a safe manner that effectively contains residual contents and emissions. The handler would have to develop and follow written procedures to ensure proper operation of the equipment (including avoiding processing of aerosol cans that are incompatible with the equipment) and to respond to any spills or releases, and it would have to ensure relevant employees are adequately trained. The contents drained from the aerosol cans would have to be “immediately” transferred to a tank or container meeting applicable hazardous waste generator requirements (e.g., the requirements for 90-day accumulation units or satellite accumulation units). A hazardous waste determination would have to be performed on both the emptied aerosol cans and the drained contents, and the materials would have to be managed accordingly. EPA further notes that all of these activities must be conducted in compliance with all applicable federal, state, and local laws and regulations related to solid or hazardous wastes, as well as occupational safety and health.
  • Additional Issues for Puncturing and Draining. EPA requests comments on whether additional requirements should be imposed on puncturing and draining, such as limiting the range of aerosol cans that may be processed under the new rule due to concerns about incompatibility with the equipment or the contents of other cans, or “due to the hazardous nature of the contents” (even though if all aerosol can wastes with a “hazardous nature” were excluded, the proposed rule - which on its face is limited to hazardous aerosol can wastes - would be meaningless). Potential candidates for exclusion mentioned by EPA cover an extremely broad range of aerosol can types, including aerosol cans containing “ethyl ether, chlorinated compounds, pesticides, herbicides, freons, foamers, corrosive cleaners and unknowns.” The Agency also asks for comment on whether handlers that are “commercial processors” should be excluded from these provisions on puncturing and draining, and instead regulated as destination facilities (in which case upfront storage would require a hazardous waste storage permit, but the actual puncturing and draining would be exempt from regulation if performed as part of a recycling process). One additional issue not mentioned by EPA is whether generators of hazardous aerosol can wastes would have the option of continuing to manage them as “regular” (non-universal) hazardous wastes, in which case the puncturing and draining operations would presumably continue to be exempt from regulation (although other more stringent generator requirements would apply, for example, with respect to labeling and storage).
  • Adoption by the States. EPA states that “[t]his proposed rule would be less stringent than the current federal program” and thus concludes that “states … would not have to adopt the universal waste regulations for aerosol cans.” However, as noted above, the proposed rules for puncturing and draining would be more stringent than current rules (because those activities are currently exempt from regulation if performed as part of a recycling process), which casts doubt on the Agency’s claim that the proposal (in its entirety) is less stringent.
  • Shipments Between States. The proposed rule is silent on the requirements that would apply to aerosol cans shipped from, to, or through states that do not adopt (or have not yet adopted) a universal waste rule for aerosols. In prior universal waste rules for other wastes, EPA has claimed that, in such circumstances, the waste would have to be transported in the non-universal-waste states by a hazardous waste transporter and with a hazardous waste manifest. See, e.g., 64 Fed. Reg. 36,466, 34,483 (July 6, 1999) (universal waste rule for lamps) (“[if] a [federal universal waste is] transported across a State in which it is subject to the full hazardous waste regulations … [t]ransport through the State must be conducted by a hazardous waste transporter and must be accompanied by a manifest”); 70 Fed. Reg. 45,508, 45,517 (August 5, 2005) (universal waste rule for mercury-containing equipment) (same). However, there appears to be a strong argument under the Hazardous Materials Transportation Act (“HMTA”) that state rules requiring a manifest are preempted if (as would be the case here) federal law does not require a manifest. See, e.g., Letter from Michael Shapiro, Director, Office of Solid Waste, EPA, to Richard J. Barlow, Chair, Northeast Waste Management Officials' Association (June 11, 1996) (RCRA Online #14135) (“[although] preemption authorities are [generally] quite foreign to RCRA … they are introduced into the transporter area by the statutory directive in RCRA to maintain consistency with the DOT framework”); 49 Fed. Reg. 10,490, 10,492 (March 20, 1984) (federal law “prohibit[s] States from requiring separate State manifests or other information to accompany waste shipments”); id. at 10,494 (“States are not precluded from setting up another system of forms . . . as long as the system does not interfere with the actual shipment of waste [and] transporters [are] not . . . required to carry these forms”). Similar arguments may apply with respect to state requirements to use a hazardous waste transporter for a federally designated universal waste.

The proposed rule is expected to be published in the Federal Register in the next several days. Comments will be due 60 days after the date of publication, or approximately in mid-May. EPA is currently projecting that a final rule will be issued in September 2019, which would then become effective at the federal level six months later, or approximately in March 2020. The rule would not become effective in most states unless and until they act to adopt the rule, which (as discussed above) EPA says they would not be required to do (on the ground that the rule would be less stringent than existing requirements). However, because several states have already acted to classify and regulate hazardous aerosol can wastes as universal wastes (e.g., California, Colorado, Utah, New Mexico, and Ohio), it can be reasonably expected that virtually all states will eventually follow EPA’s lead on this issue (possibly with some variations).