On November 15, EPA posted its pre-publication version of the Final Rule re-classifying aerosol cans as “universal waste” under the Resource Conservation and Recovery Act (RCRA), which finalizes EPA’s March 16, 2018 proposal (83 Fed. Reg. 11,654). As discussed in our prior blog post regarding the proposal, many aerosol cans have historically been classified as hazardous waste because of their ignitability, and thus often are subject to stringent regulations related to handling, transportation, and disposal.

Universal waste is a sub-category of RCRA regulated hazardous waste that allows certain widely generated products, such as batteries, certain pesticides, and lamps, to qualify for less stringent regulation than the traditional hazardous waste regime. The Final Rule is intended by EPA to ease regulatory burdens on retail stores and others that discard hazardous waste aerosol cans by providing an optional pathway for streamlined waste management treatment; promote the collection and recycling of these cans; and encourage the development of municipal and commercial programs to reduce the quantity of aerosol cans going to municipal solid waste landfills or combustors.

Key provisions of the Final Rule are described below.

Description of Aerosol Cans

Under the Final Rule, “aerosol can” means “a non-refillable receptacle containing a gas compressed, liquefied or dissolved under pressure, the sole purpose of which is to expel a liquid, paste, or powder and fitted with a self-closing release device allowing the contents to be ejected by the gas.” Aerosol cans that are damaged or leaking may be characterized as universal waste as long as they are packaged in a separate closed container, overpacked with absorbents, or immediately punctured and drained in accordance with drainage requirements (see 40 CFR 273.13(e)(2) and 40 CFR 273.33(e)(2)).

Aerosol cans that are not subject to hazardous waste requirements because they are either not solid waste, not hazardous waste, or they meet the definition of an empty container are not subject to the Final Rule. However, for ease of operations, handlers may choose to manage aerosol cans that are not subject to the hazardous waste rules as universal waste.

Management Requirements for Aerosol Cans Under the Final Rule

The Final Rule follows many of the general universal waste requirements for large quantity handlers of universal waste (“LQHUW”) (those who handle more than 5,000 kilograms of total universal waste at one time) and small quantity handlers of universal waste (“SQHUW”) (those who handle less than 5,000 kilograms of total universal waste at one time) found in 40 CFR 273.13 and 273.33. This means that to take advantage of managing aerosol cans as universal waste rather than complying with full hazardous waste requirements, the handler must comply with specific requirements. For both LQHUWs and SQHUWs, these requirements include waste management standards such as labeling and marking, accumulation container requirements (must be structurally sound and compatible with contents of the can, showing no evidence of damage), accumulation time limits (one year), employee training, responses to releases, requirements related to off-site shipments, and export requirements.

Puncturing and Draining

EPA recognizes that hazardous waste handlers are currently exempt from RCRA permitting under 40 CFR 261.6(c) when they puncture and drain aerosol cans to recycle for scrap metal, and the Final Rule does not change this. Under the Final Rule, a universal waste handler may opt to puncture and drain aerosol cans or send its un-punctured, full aerosol cans to another universal waste handler. EPA recognizes that some universal waste generators may puncture and drain a greater volume of aerosol cans than the typical hazardous waste handler. As such, the Final Rule clarifies the requirements for the puncturing and draining process, requiring that the puncturing and draining handler use a device specifically designed to safely puncture aerosol cans and effectively contain the residual contents and any emissions thereof.

The draining and puncturing handler must immediately transfer the contents from the waste aerosol can, or the puncturing device (if applicable), to a container or tank and conduct a hazardous waste determination of the contents under 40 CFR 262.11. This means that although the aerosol cans themselves do not have to be managed as hazardous waste, the drained contents may still be hazardous waste and must be managed in accordance with applicable RCRA regulations. Cans that have been punctured and drained that are considered “empty containers” under 40 CFR 261.7 are not required to meet the universal waste requirements but are also not barred from being managed as universal waste if a handler chooses to do so.

Effective Date and State Adoption

The Final Rule will become effective at the federal level 60 days after its publication in the Federal Register. However, since this Final Rule will be less stringent than the current federal program, states are not required to adopt these regulations. Some states have already added aerosol cans to the list of universal wastes (California, Colorado, Minnesota, New Mexico, Texas and Utah), and others may do so in the future.

Implications for Retailers

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. This Final Rule represents a piece of EPA’s RCRA Retail Strategy to evaluate and streamline waste management regulations and practices for the retail sector. Other components of EPA’s Retail Strategy include, without limitation, EPA’s final Management Standards for Hazardous Waste Pharmaceuticals and Amendment to the P075 Listing for Nicotine, effective in August 2019, and the Hazardous Waste Generator Improvements Rule, effective in May 2017.