Seyfarth Synopsis: Last week the U.S. Environmental Protection Agency (EPA) finalized a “streamlined system” for managing hazardous waste aerosol cans as Universal Waste. The Agency believes that the new system will be “clear, practical, and protective” and will promote recycling, and estimates the change will save at least $5.3 million annually in regulatory costs.
EPA released a pre-publication version of the new Universal Waste Rule for Aerosol Cans under 40 CFR Part 273, in anticipation of the official publication of this new final rule. 84 FR 67202 (December 9, 2019)
The Agency indicates that the new rule affecting the management of used aerosol cans under the Universal Waste (“UW”) Program of 40 CFR Part 273, will benefit approximately 25,000 facilities across numerous industries, including retail, construction, and manufacturing sectors. EPA announced that the “simplified structure of the universal waste program will help improve regulatory compliance, make aerosol can collection more economical, and facilitate the environmentally sound recycling of this common waste stream.”
While the final rule will affect all facilities who generate, transport, treat, recycle, or dispose of hazardous waste aerosol cans, it primarily affects generators (excepting Very Small Quantity Generators (VSQGs)), and handlers of waste aerosol cans. Furthermore, the two top economic sectors estimated by EPA as having the largest percentage of potentially affected entities are the retail trade industry (69% of the affected universe), and manufacturing (17% of the affected universe). The next largest concerns are transportation and warehousing, and health care and social assistance.
In addition to the UW standards that apply to all UW generators and handlers (that is, rules specifying labeling and marking of UW, accumulation time limits, employee training, release response, and for LQGs, notification and tracking of UW), rules for the puncturing of aerosol cans by generators who intend to recycle the empty cans as scrap or by handlers of UW aerosol cans, including facilities that puncture cans, requirements for utilizing commercial devices to safely puncture cans, drain contents, contain residual contents and control emissions from puncturing and draining activities. (Note, EPA is not specifying any particular device be used by handlers for puncturing cans, nor is it prohibiting the use of self-designed equipment; rather, it is requiring that generators or handlers that do puncture cans use some type of commercial device for puncturing and controlling emissions. Note further that generators or handlers who puncture and drain cans must manage the drained material in full compliance with RCRA).
Finally, the new UW Rules require generators/handlers to accumulate aerosol cans in a structurally sound container, and to establish a UW training program for employees that manage UW, including aerosol cans.
Leaking and Damaged Cans.
Although the proposed rule excluded leaking or damaged aerosol cans from being managed as UW, the final rule allows damaged/leaking cans to be managed as UW if separately packaged in a closed container, over-packed, and drained in accordance with the aerosol can UW requirements.
States with Existing Aerosol Can Rules
For the five states with their own aerosol can rules (California, Colorado, New Mexico, Ohio, Utah, and soon, Minnesota), those state rules have been deemed by USEPA to be similar to the new Part 273 rules for SQGs and LQGs, with consistent rules for puncturing and draining aerosol cans.
Aerosol Cans that are Recycled
Where aerosol cans are being recycled rather than disposed, cans which have been punctured and drained prior to recycling are considered exempt scrap metal under 40 CFR 261.6(a)(3)(ii) and are exempt from the UW rules, and there is no requirement that a waste determination be made on the RCRA-empty cans to be recycled. The materials removed from the cans however must be properly managed under RCRA.
Waste from Aerosol Cans
Before managing cans as UW, generators do not need to remove the contents from the cans, that is, the cans do not need to be drained at the generator facility. Rather, a generator can put an aerosol can into the UW aerosol can container with residual material inside. However, when a handler subsequently punctures/drains a can, the waste generated must be properly managed as a hazardous waste.
The administrative record for the rulemaking is found at EPA-HQ-OLEM-2017-0463. The final rule is effective on February 7, 2020.
We had blogged previously on EPA’s New Strategy for Addressing the Retail Sector under RCRA, that was EPA’s attempt to address the unique challenges the retail sector faces in complying with RCRA’s hazardous waste regulations, including challenges relating to aerosol cans.
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.