The Resource Conservation and Recovery Act (RCRA) assigns the US Environmental Protection Agency (EPA) to define and then regulate “hazardous wastes.” RCRA provides EPA considerable discretion, and one way the agency applies that discretion is by separating hazardous wastes into a variety of categories that are subject to distinct waste management requirements. One basis for these categorizations is relative risk – the more hazardous the waste the greater the controls required, and the smaller the threshold quantities necessary to trigger regulation. Beginning in 1995, EPA has defined a limited set of lower-risk wastes as “universal wastes” subject to special rules intended to encourage recycling (40 CFR part 273). In March 2018, EPA proposed to add aerosol cans. The rest of this note summarizes universal waste requirements, and how EPA is proposing to apply them to aerosol cans.Which Wastes are Already Universal Wastes?
EPA presently defines five types of universal wastes:
Waste mercury thermostats
In addition, EPA’s universal waste rules allow states to add additional categories and to apply comparable management standards. EPA notes the following additional state-only universal wastes:
Aerosol Cans (California, Colorado)
Antifreeze (Louisiana, New Hampshire)
Ballasts (Maine, Maryland, Vermont)
Barometers (New Hampshire, Rhode Island)
Cathode Ray Tubes (CRTs) (Maine, New Hampshire, Rhode Island)
Electronics (Arkansas, California, Colorado, Connecticut, Louisiana, Michigan, Nebraska, New Jersey)
Oil-Based Finishes (New Jersey)
Paint and Paint-Related Wastes (Texas)
Hazardous Waste Pharmaceuticals (Florida, Michigan)
EPA’s proposal to add aerosol cans to its national program acknowledges the existing programs in California and Colorado, and provides for similar requirements.
How Will the New Aerosol Can Requirements Work?
Universal waste requirements generally parallel those applicable to most hazardous wastes, although terminology, quantity thresholds, and compliance details vary. EPA’s proposed requirements for aerosol cans fit this model.
● Which aerosol cans will be universal waste?
Each set of universal waste rules starts with a definition of the wastestream covered. For aerosol cans, EPA provides the following (very general) definition:
Aerosol can means 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.
Most waste aerosol cans will qualify under the proposed rules, but EPA excludes the following:
- Aerosol cans that are not yet waste [a can becomes waste when it is discarded, whether or not it has been used]
- Aerosol cans that are not hazardous waste
- “Empty” aerosol cans that meet the RCRA standard for empty containers
- Aerosol cans that show evidence of leakage, spillage, or damage that could cause leakage under reasonably foreseeable conditions
In its preamble to the proposal, EPA notes that most aerosol cans consist of a number of components: can or container storing propellant and product; actuator or button at the top that is pressed to deliver product; valve that controls delivery/flow of product; propellant (a compressed gas or liquefied gas) that provides pressure in the container to expel or release the product when the actuator is pressed to open the valve; the product itself; and a dip tube connected to the valve to bring the product up through the can to be released when the actuator is pressed.
EPA also discusses two sets of concerns with waste cans: the chemical properties of a can’s contents including propellant (many of which are flammable and some of which are biologically or chemically hazardous); and the physical risk that crushing or heat can lead to explosive release of contents and/or shattering of the can itself.
● Who will be aerosol can “handlers”?
Just as EPA defines hazardous waste “generators,” the agency defines universal waste “handlers.” As proposed for aerosol cans, EPA interpolates the new wastestream into its general division of handlers into large and small quantity handlers:
Large Quantity Handler of Universal Waste means a universal waste handler … who accumulates 5,000 kilograms or more total of universal waste (batteries, pesticides, mercury-containing equipment, lamps, or aerosol cans, calculated collectively) at any time. This designation as a large quantity handler of universal waste is retained through the end of the calendar year in which the 5,000-kilogram limit is met or exceeded.
* * * * *
Small Quantity Handler of Universal Waste means a universal waste handler … who does not accumulate 5,000 kilograms or more of universal waste (batteries, pesticides, mercury-containing equipment, lamps, or aerosol cans, calculated collectively) at any time.
This means that a facility that accumulates any quantity of aerosol cans becomes a small quantity handler.
Requirements also apply to universal waste transporters, and to destination facilities where wastes are managed offsite.
● What onsite management standards will apply?
A small quantity handler must manage universal waste aerosol cans in a way that prevents releases to the environment, as follows:
Accumulate universal waste aerosol cans in a container that is structurally sound, compatible with the contents of the aerosol cans, and lacks evidence of leakage, spillage, or damage that could cause leakage.
Management of intact cans. The following activities may be conducted as long as each individual aerosol can is not breached and remains intact: sorting cans by type; mixing intact cans in one container; and removing actuators to reduce the risk of accidental release.
Puncturing and draining cans. A small quantity handler of universal waste who punctures and drains their aerosol cans must do so in a device specifically designed to safely puncture aerosol cans and effectively contain the residual contents and any emissions; must operate the device safely; and then must recycle the empty punctured aerosol cans. The handler must create a written procedure for doing so, maintain onsite a copy of the manufacturer’s specification and instruction for the device, and ensure employees operating the device are properly trained.
Manage wastes. The handler must immediately transfer the contents from the waste aerosol can or puncturing device to a container or tank that meets the RCRA standards for quality and compatibility; must conduct a hazardous waste determination on the emptied aerosol can and its contents, and manage the hazardous and non-hazardous wastes appropriately.
Time limits – A handler generally must keep a particular container onsite for no longer than 1 year, although small quantity handlers may accumulate containers longer if “necessary to facilitate proper recovery, treatment, or disposal.”
Labeling waste containers. Each universal waste aerosol can, or a container holding cans, must be labeled or marked clearly with the date on which accumulation began in the container, and with one of the following phrases: “Universal Waste—Aerosol Can(s)”, “Waste Aerosol Can(s)“, or “Used Aerosol Can(s)”.
Spill procedure. A written procedure must be in place in the event of a spill or release and a spill clean-up kit must be provided. All spills or leaks of the contents of the aerosol cans must be cleaned up promptly.
A large quantity handler must meet the onsite management standards listed above, and must also provide EPA with written notification of universal waste management, and receive an EPA Identification Number that will be used in subsequent record keeping and reporting.
● What standards apply when transporting cans offsite for management?
Shipments of universal wastes offsite do not require use of Uniform Hazardous Waste Manifests (I wrote about impending “e-manifest” requirements here), but must:
Comply with US Department of Transportation (DOT) requirements, including placarding if the wastes are “hazardous” under DOT’s system.
Be shipped only to a destination facility that has agreed in advance to receive the shipment for management, and to notify the handler whether the shipment has been accepted or rejected.
Keep records of shipments (large quantity handlers only; small quantity handlers are exempt).
Do any of the organization’s activities involve the use of aerosol cans, in stationery facilities or mobile work units?
Does the organization have procedures in place for managing waste aerosol cans?
If so, are the procedures based on procedures used to manage other wastes designated by EPA or a state as universal waste?
Does the organization track volumes of spent aerosol cans handled in its activities (whether voluntarily, or because of state or local requirements for management of hazardous or non-hazardous waste)?
Where Do I Go For More Information?
Specialty Technical Publishers (STP) provides a variety of single-law and multi-law services, intended to facilitate clients’ understanding of and compliance with requirements. These include:
About the Author
Jon Elliott is President of Touchstone Environmental and has been a major contributor to STP’s product range for over 25 years. He was involved in developing 13 existing products, including Environmental Compliance: A Simplified National Guide and The Complete Guide to Environmental Law.
Mr. Elliott has a diverse educational background. In addition to his Juris Doctor (University of California, Boalt Hall School of Law, 1981), he holds a Master of Public Policy (Goldman School of Public Policy [GSPP], UC Berkeley, 1980), and a Bachelor of Science in Mechanical Engineering (Princeton University, 1977).
Mr. Elliott is active in professional and community organizations. In addition, he is a past chairman of the Board of Directors of the GSPP Alumni Association, and past member of the Executive Committee of the State Bar of California's Environmental Law Section (including past chair of its Legislative Committee).
You may contact Mr. Elliott directly at: firstname.lastname@example.org