By Jeryl L. Olson, Ilana R. Morady, and Craig B. Simonsen

Seyfarth Synopsis: EPA announces its proposal to streamline the regulation of hazardous waste aerosol cans by adding them to the list of materials that can be managed under the Universal Waste management system.

The U.S. Environmental Protection Agency has issued a proposed rule that is intended to simplify the regulation of hazardous waste aerosol cans by adding them to the list of materials that can be managed under the Universal Waste management system under 40 CFR Part 273.  83 Fed. Reg. 11654 (March 16, 2018).  Some states, including California, Colorado, Minnesota, New Mexico, Texas, and Utah have already added aerosol cans to their Universal Waste lists. Adding aerosol cans to the list of Universal Wastes would ease the RCRA burden on generators in the two top economic sectors with the largest percentage of potentially affected entities, the retail trade industry and manufacturing.

Currently the U.S. EPA regulates nonempty aerosol cans as RCRA hazardous wastes in the same manner as other hazardous wastes; that is, hazardous waste aerosol cans are basically subject to the same requirements as drums of hazardous waste, including limitations on accumulation time  and volume, manifesting, disposal requirements, employee training, and response to releases.  That is, aerosol cans are regulated as hazardous waste when discarded, because propellant in the cans is flammable (i.e., a characteristic hazardous waste) and/or the contents of the cans contain P- or U- listed chemicals regulated as hazardous wastes. Aerosol cans can be excluded from the definition of hazardous waste, but only if they meet certain strict requirements.

Hazardous waste batteries, certain hazardous waste pesticides, mercury-containing equipment, and hazardous waste mercury lamps are already regulated as Universal Wastes. In general, materials managed as universal waste can be stored for 1 year or longer, and do not require a manifest when shipped, provided they are properly labeled, packaged and stored. Universal wastes also do not need to be counted toward a hazardous waste generator’s inventory for the purpose of determining whether the generator is classified as a very small quantity generator, small quantity generator, or large quantity generator.

While the rule is expected to be relief to the regulated community, the proposed rule raises nearly as many questions as it answers.  For instance, under the proposed rule, an aerosol can is defined as “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.” It remains to be seen, therefore, whether this proposed definition would include items such as cans that dispense product without aerating (e.g. shaving gel).  Importantly, the proposed rule also creates uncertainty about when an aerosol can is “intact” or is “empty.”  This is a key issue because aerosol cans meeting the definition of “empty” are to be excluded from the Universal Waste rule, and the cans themselves would not be hazardous if recycled.

Currently, punctured, empty aerosol cans that are recycled are exempt from RCRA regulation if the puncturing is performed as part of a recycling process, and many companies have invested in can puncturing equipment to render aerosol cans “RCRA-empty” and thus, the cans (not the “drained contents”) are considered exempt from hazardous waste rules.  As suggested above, however, in the future, where puncturing and draining would render cans empty, they would not be subject to Universal Waste rules.  The issue of whether “puncturing” by the generator (versus the waste handler) is hazardous waste treatment can vary from state to state, and the proposed rule does not provide clarity for generators.

We will continue to monitor development of the proposed rule.

For more information on this or any related topic please contact the authors, your Seyfarth attorney, or any member of the Seyfarth Environmental Compliance, Enforcement & Permitting Team.