Hazardous and Solid Waste, Regulatory Developments

EPA Adds Aerosol Cans to Federal Universal Waste Program

Sixty days after its publication in the Federal Register, a final EPA rule will formally add hazardous waste aerosol cans to the federal Universal Waste program.

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The rule will lighten regulations under the Resource Conservation and Recovery Act (RCRA) for about 25,000 facilities now subject to the requirement to manage these cans under the full RCRA Subtitle C hazardous waste management program, including all applicable provisions at 40 CFR parts 260 through 268. Subtitle C affects both large quantity handlers of universal waste (LQHUWs) and small quantity handlers of universal waste (SQHUWs). According to the Agency, the two economic sectors generating hazardous waste aerosol cans that will benefit most from the new rule are the retail trade industry, which accounts for 69 percent of the affected LQHUW universe, and manufacturing, which accounts for 17 percent of the affected LQHUW universe.

3.5 billion cans

The regulated sectors and other stakeholders have offered no persuasive argument that hazardous waste aerosol cans should be unregulated under RCRA. The Household & Commercial Products Association estimates 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. Many aerosol cans contain propellant or product that is ignitable—one of the RCRA characteristics of hazardous waste. Some aerosol cans also contain RCRA-listed hazardous wastes or wastes that exhibit other hazardous waste characteristics.

Retail Sector Challenged by Hazardous Waste

Even in light of the risks associated with hazardous waste aerosol cans, the Agency has recognized that compliance with Subtitle C has been particularly difficult for the retail sector. For example, in its 2016 Strategy for Addressing the Retail Sector under RCRA’s Regulatory Framework, the EPA stated that the retail sector differs from the industrial/manufacturing sector in the following key respects:

  • Large number of stores in many locations handling consumer goods that, in many situations, could become hazardous waste upon discard.
  • Numerous varieties of goods, which are generally manufactured by someone else and whose ingredients are often not fully known, make hazardous waste determinations difficult.
  • Unpredictable quantity of waste generation due to episodic generation (e.g., recalls and customer returns).
  • Hazardous waste training at the store level is difficult due to high employee turnover.
  • Use of the reverse distribution process to manage unsalable products—including those that become hazardous waste when discarded.

Streamlined Management

It has been apparent for some time that the solution for hazardous waste aerosol cans is placement in the Universal Waste program. Promulgated by the EPA in 1995, the Universal Waste rule established a streamlined hazardous waste management system for widely generated hazardous wastes as a way to encourage environmentally sound collection and proper management of the wastes within the system.

The Universal Waste rule applies to handlers and transporters that generate or manage items designated as a universal waste. Handlers include both facilities that generate universal waste and facilities that receive universal waste from other universal waste handlers; accumulate the universal waste; and then send the universal waste to another handler, a destination facility, or a foreign designation.

Under the rule, the EPA considers eight factors when evaluating whether a waste is appropriate for designation as a universal waste. For example, the waste should be generated by a large number of facilities and frequently generated in relatively small quantities, and the risks posed by the waste during accumulation and transport should be relatively low compared with the risks posed by other hazardous waste. Currently, the Universal Waste program covers hazardous waste batteries, certain hazardous waste pesticides, mercury-containing equipment, and hazardous waste lamps.

Not every one of the eight factors must be met for a waste to be appropriately regulated under the Universal Waste system. “However, consideration of the weight of evidence should result in a conclusion that regulating a particular hazardous waste under [the] program will improve waste management,” says the EPA. The Agency has determined that “on balance,” hazardous waste aerosol cans meet the factors warranting inclusion on the federal list of universal wastes for management under the program.


The new rule includes standards that streamline requirements for storage, labeling and marking, preparing the waste for shipment off-site, employee training, accumulation time, response to releases, and notification and tracking of universal waste shipments. Also, the final rule distinguishes between LQHUWs (those that handle more than 5,000 kilograms (kg) of total universal waste at one time) and SQHUWs (those that handle 5,000 kg or less of universal waste at one time). Mainly, the additional responsibilities of LQHUWs involve obtaining an EPA identification number, retaining shipping records, and conducting more extensive employee training. The 5,000-kg accumulation criterion applies to the quantity of all universal wastes accumulated.

The primary difference between the Universal Waste rule’s transporter requirements and the Subtitle C transportation requirements is that no manifest is required for transport of universal waste.

State Successes

Currently, five states—California, Colorado, New Mexico, Ohio, and Utah—have universal waste aerosol can programs in place, and Minnesota plans to propose to add aerosol cans to its universal waste regulations in 2019. The universal waste programs in all these states include streamlined management standards similar to the federal standards for small and large quantity handlers of universal waste.

The current rule appears to have been motivated in part by the state experience. The EPA notes that waste management officials from the four states whose programs were operating at the time the new rule was proposed informed the Agency that these programs have been operating well and achieving their objective of facilitating safe management of hazardous waste aerosol cans. In particular, the EPA adds, state officials from both California and Colorado said their respective aerosol can universal waste programs have been in effect since 2002, and they have not identified any problems with enforcing compliance with the standards.


The EPA is finalizing a definition of aerosol can that is consistent with the language in Department of Transportation (DOT) regulations. Aerosol can is defined as a nonrefillable 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. Using language from the DOT regulation will help ensure consistency across federal regulatory programs, will avoid unnecessarily narrowing the scope of the rule to aerosol cans that aerate their product, and will not inadvertently include compressed gas cylinders in the definition of aerosol can, says the EPA.

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