On Monday December 9, 2019, the EPA added hazardous waste aerosol cans to the list of substances regulated under the universal waste program of the Federal Resource Conservation and Recovery Act (RCRA). The rule will take effect on February 7, 2020, and will affect individuals who generate, transport, treat, recycle, or dispose of hazardous waste aerosol cans. EPA estimates that as many as 25,000 industrial facilities in 20 different industries could be affected. The final rule, as published in the Federal Register, can be accessed here.

EPA’s universal waste regulations streamline hazardous waste management standards for certain categories of hazardous waste that are commonly generated and widely used, including hazardous waste batteries, mercury-containing equipment, pesticides, and lamps. These regulations serve as alternatives to the hazardous waste management standards of 40 CFR parts 260 through 272 and are meant to ease the burden of managing certain lower-risk materials, encourage recycling, and facilitate proper treatment and disposal. When the final rule goes into effect, hazardous waste aerosol cans will be subject to those streamlined regulations. EPA estimates that the final action will result in an annual cost savings of $5.3 million to $47.8 million, and it classifies the rule, which was proposed by the Trump Administration in March 2018, as a deregulatory action consistent with Executive Order 13771.

The rule defines “aerosol can” as a “non-refillable receptacle containing a gas compressed, liquified 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.” Leaking and damaged aerosol cans may also be managed as universal waste, so long as the leaking or damaged cans are packaged in a separate closed container, overpacked with absorbents, or immediately punctured and drained.

Handlers, transporters, and destination facilities that manage these materials will be subject to the regulations that govern all categories of universal waste. Of note, handlers (i.e., facilities that generate universal waste or that receive, accumulate, and send universal waste) may store hazardous waste aerosol cans for up to one year and ship hazardous waste aerosol cans without a manifest. In addition to those general requirements, handlers will have to comply with puncture and drain requirements specific to aerosol cans. Among other things, they must use a device that is designed to safely puncture the aerosol cans and that effectively contains the residual contents and any emissions. And the contents of the drained cans must be immediately transferred to a container or tank that is subject to its own hazardous waste determination.

The final rule does not change the existing requirements applicable to universal waste transporters and destination facilities (i.e., a facility that treats, disposes of, or recycles a particular category of universal waste). Neither does it impose any requirements on household wastes, which continue to be exempt from RCRA Subtitle C regulations, or very small quantity generators (VSQG), which may choose to manage their hazardous waste aerosol cans in accordance with either the VSQG regulations or as universal waste.

While the new requirements for aerosol cans become part of the federal RCRA requirements on February 7, 2020, facilities will need to check to see whether and when they are adopted into the state regulations for the jurisdiction in which they operate before availing themselves of this new option for managing waste aerosol cans.