Hazardous and Solid Waste

Aerosol Cans Could Soon Be Universal Waste

In its 2017 Update of its Regulatory Agenda, the EPA states that it is considering a proposal to add hazardous waste aerosol cans to those universal wastes regulated under 40 CFR 273.

This is the first time the Agency has included the aerosol can/universal waste option in the Regulatory Agenda. The entry states that the EPA is planning to issue a proposed rule in April 2018 and a final rule in September 2019. Rulemaking predictions in the Regulatory Agenda are rarely firm unless they are required by statute or court order, and what the Agency actually does is almost always dependent on other priorities and the availability of in-house resources. On the other hand, state experience with managing aerosol cans as universal waste may provide the EPA with the information and background it needs to follow through with a rulemaking. California and Colorado currently regulate aerosol cans as universal waste.

Current RCRA Requirements

Under the Resource Conservation and Recovery Act (RCRA), the EPA regulates nonempty aerosol cans as hazardous waste subject to all the Subtitle C accumulation time-limit, management, manifesting, and disposal requirements applicable to any other hazardous waste. To be excluded from the definition of a hazardous waste, an aerosol can must be empty. To be RCRA-empty, an aerosol can must meet four conditions:

  • Contain no compressed propellant.
  • All chemical product that can be dispensed through the valve has been dispensed.
  • No more than 3 percent of the original capacity/net weight of the full container or no more than 1 inch of the liquid residue remains in the can.
  • If the aerosol can contained an acute hazardous waste (P-listed or F027), it must be punctured and triple-rinsed using a solvent capable of removing the commercial chemical product. The solvent rinse must then be managed as an acute hazardous waste.

Most retail stores (entities that generate waste aerosol cans) do not have the resources to meet these requirements. Hence, these establishments must comply with RCRA hazardous waste regulations, a sector that Congress arguably did not intend to be subject to Subtitle C. This is precisely the type of situation the federal universal waste rules were developed to address.

Universal Waste Advantages

In general, materials managed as universal waste can be stored for 1 year and are not required to be shipped with a manifest. In addition, universal wastes do not need to be counted toward a generator’s category for the purpose of determining whether it is a very small quantity generator, small quantity generator, or large quantity generator. The universal waste regulations do require that the materials are managed in a way to prevent releases to the environment, and those requirements are tailored to each type of universal waste (for small quantity handlers and for large quantity handlers). The standards also include labeling, a requirement to respond to releases, and transport to a facility that is permitted or otherwise designated for receiving hazardous waste (e.g., a recycler).

State Programs

The EPA currently regulates four wastes as universal: batteries, pesticides, mercury-containing equipment, and lamps. In addition, states authorized by the EPA to implement the RCRA petition process may add other universal wastes to the state’s universal waste program. To add waste to a state program, the waste must be generated by a wide variety of generators, cannot be exclusive to a specific industry, and must be hazardous. Also, the state must have a collection system in place and ensure that the universal waste program will increase the likelihood that the waste will be recycled. California and Colorado currently regulate aerosol cans as universal waste.

Aerosol cans contain liquids, which somewhat complicates management. However, the EPA has addressed this issue in its pesticide universal waste program, which includes requirements applicable to leakage, spillage, or damage that could cause leakage under reasonably foreseeable conditions. In the coming months, the Agency will likely attempt to determine if these or similar requirements can be applied to aerosol cans.

The Agenda entry is here.

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