Audit, Compliance and Risk Blog

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 categories that are subject to distinct waste management requirements. One basis for these categorizations is relative risk – since 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 December 2019, EPA has added aerosol cans, which expands nationwide an alternative already offered by five states (California, Colorado, New Mexico, Ohio, and Utah). EPA’s new rules finalize regulations proposed in March 2018 (I wrote about EPA’s proposal here), with some revisions. Aerosol cans will be EPA’s sixth category of universal wastes (joining batteries, pesticides, mercury thermostats, lamps, and mercury-containing equipment); various states have additional categories, which I summarized in my write-up of EPA’s proposal.

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 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"

This definition is different from the one proposed last year, which had copied definitions in state universal waste rules in order to make hazardous waste definitions consistent. This version is instead consistent with the definition used by the Department of Transportation (DOT) in order to make federal requirements mutually consistent.

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 – although the final rule allows handlers to manage such containers as universal waste (presumably to avoid complicating the handler’s procedures)

EPA’s proposal had also excluded aerosol cans that show evidence of leakage, spillage, or damage that could cause leakage under reasonably foreseeable conditions. However, the final rule allows handlers to apply the new rule to leaking cans if they are “packaged in a separate closed container or overpacked with absorbents, or immediately punctured and drained in accordance with the aerosol can universal waste requirements.”

• Who Will be Aerosol Can “Handlers”?

Just as EPA defines hazardous waste “generators,” the agency defines universal waste “handlers.” The final rule interpolates the new wastestream into the universal waste rules’ 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.

Note that this definition 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:

• Accumulation of 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 who punctures and drains aerosol cans must do so in a device specifically designed to safely puncture cans and effectively contain residual contents and any emissions; must operate the device safely; and then must recycle the empty punctured aerosol cans. The handler must create written procedures, maintain onsite a copy of the manufacturer’s specification and instruction for the device, and ensure employees operating the device are properly trained.

• Managing wastes. The handler must immediately transfer the contents from the waste aerosol can or puncturing device into a container or tank that meets RCRA standards for quality and compatibility; must conduct a hazardous waste determination on the emptied aerosol can and its contents, and manage hazardous and non-hazardous wastes appropriately.

• Time limits – A handler generally can’t keep a particular container onsite for 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 for managing a spill or release, and a spill clean-up kit must be provided. All spills or leaks of aerosol cans’contents 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. The final rules allow management of cans from offsite.

• What Standards Apply When Transporting Cans Offsite For Management?

EPA is applying its general universal waste transport and destination facility standards to the new wastestream.  Shipments of universal wastes offsite do not require use of Uniform Hazardous Waste Manifests, but must:

• Comply with 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).

What’s Next?

The new provisions become effective on February 7, 2020, which is 60 days after publication in the Federal Register. Since these rules are intended to make compliance easier, organizations are free to adopt them when desired, or to continue to manage spent aerosol cans under traditional RCRA provisions. Readers should determine if the new rules apply to you, and whether it’s beneficial to use these rules rather than continue other management of spent aerosol cans.

EPA estimates they will affect over 25,000 industrial facilities in 20 different industries, including 7,483 large quantity generators (LQG). EPA also cites data from estimates by the Household and Commercial Products Association that 3.75 billion aerosol cans were filled in the United States in 2016 for use by commercial and industrial facilities as well as by households.

Self-Assessment Checklist

Do any of the organization’s activities involve the use of aerosol cans, in stationary 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 Can I Go For More Information?

• Adopted aerosol can rules (12/9/19 Federal Register) 

• EPA’s universal waste webpage 

• EPA aerosol can rulemaking webpage 

Specialty Technical Publishers (STP) provides a variety of single-law and multi-law services, intended to facilitate clients’ understanding of and compliance with requirements. 

About the Author

Jon Elliott is President of Touchstone Environmental and has been a major contributor to STP’s product range for over 30 years. 

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: tei@ix.netcom.com