Increasing Recycling: Adding Aerosol Cans to the Universal Waste Regulations, 11654-11667 [2018-05282]
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Federal Register / Vol. 83, No. 52 / Friday, March 16, 2018 / Proposed Rules
Both the EPA and the NH DES signed
the MoA in which the parties agreed to
the terms and conditions regarding the
responsibility to implement and enforce
the policies, responsibilities and
procedures of the SSI Federal Plan. The
MoA became effective upon signature
by the EPA on December 22, 2017.
Under the EPA’s Delegation Manual,
item 7–139, the Regional Administrator
is authorized to delegate
implementation and enforcement of
sections 111(d)/129 Federal Plans to
state environmental agencies. The
Regional Administrator may consider
delegating authority to implement and
enforce Federal Plans to a state provided
the following conditions are met: (1)
The state does not already have an EPA
approved State Plan; (2) the state
submits a demonstration of adequate
resources and legal authority to
administer and enforce the Federal Plan;
and (3) the state enters into a MoA with
the Regional Administrator that sets
forth the terms, conditions and effective
date of the delegation and that serves as
the mechanism for the transfer of
authority.
NH DES has met all of the EPA’s
delegation requirements as described
above. The reader may view the NH DES
letter to the EPA requesting delegation
and the MoA signed by both parties at
www.regulations.gov, identified by
Docket ID Number EPA–R01–OAR–
2018–0069.
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IV. What is the EPA’s proposed
conclusion?
The EPA has evaluated the NH DES
submittal for consistency with the CAA,
EPA regulations, and EPA policy. The
NH DES has met all the requirements of
the EPA’s guidance for obtaining
delegation of authority to implement
and enforce the SSI Federal Plan. The
NH DES entered into a MoA with the
EPA, and it became effective on
December 22, 2017. Accordingly, the
EPA is proposing to approve the NH
DES request dated November 14, 2017
for delegation of authority to implement
and enforce the Federal Plan for existing
SSI units. The EPA will continue to
retain certain specific authorities
reserved to the EPA in the SSI Federal
Plan and as indicated in the MoA (e.g.,
authority to approve major alternatives
to test methods or monitoring, etc.).
V. Statutory and Executive Order
Reviews
Under the Clean Air Act, the
Administrator is required to approve a
state plan submission that complies
with the provisions of the CAA section
111(d) and 129(b)(2) and applicable
Federal regulations. 42 U.S.C. 7411(d)
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and 7429(b)(2); 40 CFR 62.02(a). Thus,
in reviewing state plan submissions,
EPA’s role is to approve state choices,
provided that they meet the criteria of
the CAA. Accordingly, this action
merely approves a state delegation
request as meeting Federal requirements
and does not impose additional
requirements beyond those already
imposed by state law. For that reason,
this action:
• Is not a significant regulatory action
subject to review by the Office of
Management and Budget under
Executive Orders12866 (58 FR 51735,
October 4, 1993) and 13563 (76 FR 3821,
January 21, 2011);
• Does not impose an information
collection burden under the provisions
of the Paperwork Reduction Act (44
U.S.C. 3501 et seq.);
• Is certified as not having a
significant economic impact on a
substantial number of small entities
under the Regulatory Flexibility Act (5
U.S.C. 601 et seq.);
• Does not contain any unfunded
mandate or significantly or uniquely
affect small governments, as described
in the Unfunded Mandates Reform Act
of 1995 (Pub. L. 104–4);
• Does not have Federalism
implications as specified in Executive
Order 13132 (64 FR 43255, August 10,
1999);
• Is not an economically significant
regulatory action based on health or
safety risks subject to Executive Order
13045 (62 FR 19885, April 23, 1997);
• Is not a significant regulatory action
subject to Executive Order 13211 (66 FR
28355, May 22, 2001);
• Is not subject to requirements of
Section 12(d) of the National
Technology Transfer and Advancement
Act of 1995 (15 U.S.C. 272 note) because
application of those requirements would
be inconsistent with the Clean Air Act;
and
• Does not provide EPA with the
discretionary authority to address, as
appropriate, disproportionate human
health or environmental effects, using
practicable and legally permissible
methods, under Executive Order 12898
(59 FR 7629, February 16, 1994).
In addition, this rulemaking does not
apply on any Indian reservation land or
in any other area where EPA or an
Indian tribe has demonstrated that a
tribe has jurisdiction. In those areas of
Indian country, the rule does not have
tribal implications and will not impose
substantial direct costs on tribal
governments or preempt tribal law as
specified by Executive Order 13175 (65
FR 67249, November 9, 2000).
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List of Subjects in 40 CFR Part 62
Environmental protection, Air
pollution control, Administrative
practice and procedure, Carbon
monoxide, Intergovernmental relations,
Lead, Nitrogen dioxide, Particulate
matter, Reporting and recordkeeping
requirements, Sulfur oxides, Waste
treatment and disposal.
Dated: March 8, 2018.
Alexandra Dapolito Dunn,
Regional Administrator, EPA Region 1.
[FR Doc. 2018–05316 Filed 3–15–18; 8:45 am]
BILLING CODE 6560–50–P
ENVIRONMENTAL PROTECTION
AGENCY
40 CFR Parts 260, 261, 264, 265, 268,
270, and 273
[EPA–HQ–OLEM–2017–0463; FRL–9975–
44–OLEM]
RIN 2050–AG92
Increasing Recycling: Adding Aerosol
Cans to the Universal Waste
Regulations
Environmental Protection
Agency (EPA).
ACTION: Proposed rule.
AGENCY:
The Environmental Protection
Agency (EPA or the Agency) is
proposing to add hazardous waste
aerosol cans to the universal waste
program under the federal Resource
Conservation and Recovery Act (RCRA)
regulations. This proposed change, once
finalized, would benefit the wide
variety of establishments generating and
managing hazardous waste aerosol cans,
including the retail sector, by providing
a clear, protective system for managing
discarded aerosol cans. The streamlined
universal waste regulations are expected
to ease regulatory burdens on retail
stores and others that discard hazardous
waste aerosol cans; promote the
collection and recycling of these cans;
and encourage the development of
municipal and commercial programs to
reduce the quantity of these wastes
going to municipal solid waste landfills
or combustors.
DATES: Comments must be received on
or before May 15, 2018. Under the
Paperwork Reduction Act (PRA),
comments on the information collection
provisions are best assured of
consideration if the Office of
Management and Budget (OMB)
receives a copy of your comments on or
before April 16, 2018.
ADDRESSES: Submit your comments,
identified by Docket ID No. EPA–HQ–
SUMMARY:
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OLEM–2017–0463, at https://
www.regulations.gov. Follow the online
instructions for submitting comments.
Once submitted, comments cannot be
edited or removed from Regulations.gov.
The EPA may publish any comment
received to its public docket. Do not
submit electronically any information
you consider to be Confidential
Business Information (CBI) or other
information whose disclosure is
restricted by statute. Multimedia
submissions (audio, video, etc.) must be
accompanied by a written comment.
The written comment is considered the
official comment and should include
discussion of all points you wish to
make. The EPA will generally not
consider comments or comment
contents located outside of the primary
submission (i.e., on the web, cloud, or
other file sharing system). For
additional submission methods, the full
EPA public comment policy,
information about CBI or multimedia
submissions, and general guidance on
making effective comments, please visit
https://www2.epa.gov/dockets/
commenting-epa-dockets.
FOR FURTHER INFORMATION CONTACT:
Tracy Atagi, Office of Land and
Emergency Management (5304P),
Environmental Protection Agency, 1200
Pennsylvania Avenue NW, Washington,
DC 20460; telephone number: 703–308–
8672; email address: atagi.tracy@
epa.gov, or Tiffany Kollar, Office of
Land and Emergency Management
(5304P), Environmental Protection
Agency, 1200 Pennsylvania Avenue
NW, Washington, DC 20460; telephone
number: 703–308–8675; email address:
kollar.tiffany@epa.gov.
SUPPLEMENTARY INFORMATION:
I. General Information
A. Does this action apply to me?
This proposed rulemaking would
affect persons who generate, transport,
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treat, recycle, or dispose of hazardous
waste aerosol cans, herein referred to as
aerosol cans, unless those persons are
households or very small quantity
generators (VSQGs). Entities potentially
affected by this action include over
18,000 industrial facilities in 18
different industries (at the 2-digit North
American Industry Classification
System (NAICS) code level). Most of
these industries have relatively few
entities that are potentially affected. The
two top economic sectors (at the 2-digit
NAICS code level) with the largest
percentage of potentially affected
entities are the retail trade industry
(NAICS code 44–45), representing 65%
of the affected Large Quantity Generator
universe, and Manufacturing (NAICS
code 31–33), representing 20% of the
affected Large Quantity Generator
universe. Potentially affected categories
and entities include, but are not
necessarily limited to:
Total affected
large quantity
generators
Primary NAICS description
44–45 ................
31–33 ................
48–49 ................
62 ......................
92 ......................
61 ......................
54 ......................
56 ......................
42 ......................
22 ......................
81 ......................
21 ......................
23 ......................
71 ......................
55 ......................
53 ......................
51 ......................
11 ......................
Retail Trade ..................................................................................................................
Manufacturing ...............................................................................................................
Transportation and Warehousing .................................................................................
Health Care and Social Assistance .............................................................................
Public Administration ....................................................................................................
Educational Services ....................................................................................................
Professional, Scientific, and Technical Services .........................................................
Administrative and Support and Waste Management and Remediation Services .....
Wholesale Trade ..........................................................................................................
Utilities ..........................................................................................................................
Other Services (except Public Administration) ............................................................
Mining, Quarrying, and Oil and Gas Extraction ...........................................................
Construction .................................................................................................................
Arts, Entertainment, and Recreation ............................................................................
Management of Companies and Enterprises ..............................................................
Real Estate and Rental and Leasing ...........................................................................
Information ...................................................................................................................
Agriculture, Forestry, Fishing and Hunting ..................................................................
4,225
1,327
138
179
116
126
81
112
73
32
65
28
4
3
6
3
1
1
395.8
6,767.2
1,214.9
29.5
186.8
18.0
63.6
2,655.2
130.0
6.8
4.2
10.3
24.1
3.2
0.6
0.6
0.5
0.0
Total ...........
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2 Digit NAICS
code
.......................................................................................................................................
6,520
11,511.3
This table is not intended to be
exhaustive, but rather provides a guide
for readers regarding entities likely to be
regulated by this action. This table lists
the types of entities that EPA is now
aware could potentially be regulated by
this action. Other entities not listed in
the table could also be regulated. To
determine whether your entity is
regulated by this action, you should
carefully examine the applicability
criteria found in Section IV of this
action. If you have questions regarding
the applicability of this action to a
particular entity, consult the person
listed in the FOR FURTHER INFORMATION
CONTACT section.
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B. What action is the agency taking?
The Environmental Protection Agency
(EPA) is proposing to add hazardous
waste aerosol cans to the list of
universal wastes regulated under the
Resource Conservation and Recovery
Act (RCRA) regulations. This proposed
change, once finalized, would benefit
the wide variety of establishments
generating and managing aerosol cans,
including the retail sector, by providing
a clear, practical system for handling
discarded aerosol cans.
C. What is the agency’s authority for
taking this action?
These regulations are proposed under
the authority of sections 2002(a), 3001,
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Generated tons
3002, 3004, and 3006 of the Solid Waste
Disposal Act, as amended by the
Resource Conservation and Recovery
Act (RCRA), and as amended by the
Hazardous and Solid Waste
Amendments (HSWA), 42 U.S.C.
6921(a), 6921, 6922, 6924, and 6926.
D. What are the incremental costs and
benefits of this action?
This proposed action, if finalized as
proposed, is expected to result in an
annual cost savings of $3.0 million to
$63.3 million. Information on the
estimated future economic impacts of
this action is presented in Section VII of
this notice, as well as in the Regulatory
Impact Analysis (RIA) available in the
docket for this proposed action. Note
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that the expected cost savings is based
on the assumption that all eligible states
would adopt regulatory changes, once
they are finalized. EPA requests
comment on this assumption.
In addition to cost savings, EPA’s
analysis shows qualitative benefits to
adding aerosol cans to the universal
waste program, including improved
implementation of and compliance with
the hazardous waste program and
increased recovery and recycling of
aerosol cans.
II. Background
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A. Description of Aerosol Cans
Aerosol cans are widely used for
dispensing a broad range of products
including paints, solvents, pesticides,
food and personal care products, and
many others. The Consumer Specialty
Products Association (CSPA) estimates
that 3.82 billion aerosol cans were filled
in the United States in 2015 for use by
commercial and industrial facilities as
well as by households.1
A typical aerosol can consists of
several components, including (but not
limited to): (1) The can or container
storing both propellant and the product;
(2) an actuator or button at the top of the
can that is pressed to deliver the
product; (3) a valve which controls
delivery or flow of the product; (4) the
propellant (a compressed gas or
liquefied gas), which provides the
pressure in the container to expel or
release the product when the actuator is
pressed to open the valve; (5) the
product itself; and (6) a dip tube which
is connected to the valve to bring the
product up through the can to be
released when the actuator is pressed.2
The can itself is typically a small steel
or aluminum container, designed to be
hand-held, which is sealed with its
contents under pressure. The can’s
design is intended to prevent unwanted
releases of the contents to the
environment under normal handling
and storage conditions. However, when
aerosol cans are mismanaged,
particularly when exposed to excessive
heat, the resulting increase in internal
pressure can reach a point beyond the
design strength of the can, thereby
causing it to burst and release its
contents. At the point of bursting, the
contents of the can have been heated to
a temperature and pressure far above
1 Consumer Specialty Product Association,
What’s New, Industry Updates and Association
Highlights, June 2016. https://www.cspa.org/
aerosol-products-industry-growing-steadily-surveyreveals-north-american-production-reacheshistoric-high/, retrieved November 8, 2017.
2 National Aerosol Association, History of the
Aerosol, https://www.nationalaerosol.com/historyof-the-aerosol/, retrieved December 11, 2017.
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ambient environmental conditions,
causing the contents to rapidly vaporize
and be forcefully released. One or more
of the following may occur when a can
bursts as a result of over-heating: (1) If
the propellant or product are ignitable,
the contents of the can may readily
catch fire as they are released and
exposed to atmospheric oxygen, creating
a rapidly burning vapor ‘‘fireball’’; (2)
the bottom of the can may detach as a
result of a manufacturing defect or an
external force, causing the upper part of
the can to become a projectile; or (3) the
can may fragment as it bursts, releasing
metal shards.
Aerosol cans frequently contain
flammable propellants such as propane
or butane which can cause the aerosol
can to demonstrate the hazardous
characteristic for ignitability (40 CFR
261.21).3 In addition, the aerosol can
may also be a hazardous waste for other
reasons when discarded. More
specifically, an aerosol can may contain
materials that exhibit hazardous
characteristics per 40 CFR part 261
subpart C. Similarly, a discarded aerosol
can may also be a P or U-listed
hazardous waste if it contains a
commercial chemical product found at
40 CFR 261.33(e) or (f).
B. Current Federal Regulation of Aerosol
Cans
1. Regulation of Aerosol Cans Under the
Resource Conservation and Recovery
Act (RCRA)
Any person who generates a solid
waste, as defined in 40 CFR 261.2, must
determine whether the solid waste
qualifies as hazardous waste. The waste
may be hazardous either because it is
listed as a hazardous waste in subpart
D of 40 CFR part 261 or because it
exhibits one or more of the
characteristics of hazardous waste, as
provided in subpart C of 40 CFR part
261. As discussed above, aerosol cans
are frequently hazardous due to the
ignitability characteristic, and in some
cases may also contain listed or exhibit
other hazardous waste characteristics.4
Many, but not all, generators of
aerosol cans identified or listed as a
hazardous waste are subject to the full
RCRA subtitle C hazardous waste
management requirements, including all
applicable requirements of 40 CFR parts
260 through 268. Depending on their
activities, some generators have only to
meet the requirements of part 262,
including on-site management, pre3 University of Vermont, Paint and Aerosol
Safety, https://www.uvm.edu/safety/art/paintaerosol-safety, retrieved December 11, 2017.
4 Aerosol cans that have not been discarded are
not solid or hazardous wastes.
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transport, and manifesting. Under 40
CFR 262.14, very small quantity
generators (VSQGs), defined as facilities
that generate less than or equal to 100
kilograms of hazardous waste in a
calendar month, are not subject to the
RCRA subtitle C hazardous waste
management standards, provided they
send their waste to a municipal solid
waste landfill or non-municipal
nonhazardous waste facility approved
by the state for the management of
VSQG wastes and meet other
conditions. In addition, households that
generate waste aerosol cans are exempt
from the federal hazardous waste
management requirements under the
household hazardous waste exemption
in 40 CFR 261.4(b)(1).5
Facilities that treat, store, and/or
dispose of hazardous waste aerosol cans
are subject to the requirements of 40
CFR part 264 (for permitted facilities),
or the requirements of 40 CFR part 265
(for interim status facilities). However,
when hazardous waste aerosol cans are
recycled, the recycling process itself is
not subject to regulation, except as
indicated in 40 CFR 261.6(d). EPA has
interpreted the current hazardous waste
regulations to mean that puncturing and
draining an aerosol can, if performed for
the purpose of recycling (e.g., for scrap
metal recycling), is considered part of
the recycling process and is exempt
from RCRA permitting requirements
under 40 CFR 261.6(c).6 However,
facilities receiving hazardous waste
aerosol cans from off-site would require
a RCRA permit for storage prior to the
recycling activity, and the recycling
process would be subject to subparts AA
and BB of 40 CFR part 264, 265, or 267.
2. Regulation Under the Federal
Insecticide, Fungicide, and Rodenticide
Act (FIFRA)
Hazardous waste aerosol cans that
contain pesticides are also subject to the
requirements of Federal Insecticide,
Fungicide, and Rodenticide Act
(FIFRA), including compliance with the
instructions on the label. In general, the
statement on aerosol pesticide product
FIFRA labels prohibits the puncturing of
the cans. However, in April 2004, EPA
5 Under 40 CFR 261.4(b)(1), ‘‘household waste’’
means any material (including garbage, trash and
sanitary wastes in septic tanks) derived from
households (including single and multiple
residences, hotels and motels, bunkhouses, ranger
stations, crew quarters, campgrounds, picnic
grounds and day-use recreation areas).
6 EPA first explained this interpretation in 1993.
See U.S. EPA 1993 Regulatory Status of Used
Residential And Commercial/Industrial Aerosol
Cans, Memo from Jeff Denit, Acting Director, Office
of Solid Waste to John DiFazio, Chemical
Specialties Manufacturers Association, October 7,
1993. RO #11780.
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issued a determination 7 that puncturing
aerosol pesticide containers is
consistent with the purposes of FIFRA
and is therefore lawful pursuant to
FIFRA section 2(ee)(6) provided that the
following conditions are met:
• The puncturing of the container is
performed by a person who, as a general
part of his or her profession, performs
recycling and/or disposal activities;
• The puncturing is conducted using
a device specifically designed to safely
puncture aerosol cans and effectively
contain the residual contents and any
emissions thereof; and
• The puncturing, waste collection,
and disposal, are conducted in
compliance with all applicable federal,
state and local waste (solid and
hazardous waste) and occupational
safety and health laws and regulations.
EPA anticipates that this 2004 FIFRA
determination would not be affected by
the proposed addition of hazardous
waste aerosol cans to the universal
waste rules.
In response to comments on the Retail
Sector NODA, the Agency published the
Strategy for Addressing the Retail Sector
under RCRA’s Regulatory Framework,
which lays out a cohesive plan to
address the unique challenges faced by
the retail sector in complying with
RCRA regulations while reducing
burden and protecting human health
and the environment.8 One of the action
items under the Retail Strategy is to
explore adding hazardous waste aerosol
cans to the universal waste rule.
C. Retail Strategy and Aerosol Cans
The retail sector as a whole handles
a very large number of diverse products,
which change over time and may, in
many instances, become regulated as
hazardous waste under RCRA when
discarded. As a result, retailers are
required to make hazardous waste
determinations for a variety of products
being discarded at stores located across
the country.
In 2014, EPA published a Notice of
Data Availability (NODA) for the Retail
Sector as part of the Agency’s
continuing efforts to better understand
concerns from all stakeholders regarding
RCRA’s applicability to the retail sector,
as well as to obtain information and
feedback on issues affecting the retail
sector. (79 FR 8926, February 14, 2014)
In the NODA, EPA requested comment
on a series of topics related to retail
operations, waste management practices
and management of materials that may
become hazardous waste when
discarded. This specifically included
requests for information regarding
aerosol cans (e.g., quantity generated,
classification and management options,
including handling as universal waste),
since aerosol cans comprise a large
percentage of the retail sector’s
hazardous waste stream. Approximately
35% of NODA commenters specifically
suggested that discarded aerosol cans be
managed as universal waste.
D. Universal Waste Rule
In 1995, EPA promulgated the
universal waste rule (60 FR 25492, May
11, 1995) to establish 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. Hazardous waste batteries,
certain hazardous waste pesticides,
mercury-containing equipment, and
hazardous waste lamps are already
included on the federal list of universal
wastes. The universal waste regulations
in 40 CFR part 273 are a set of
alternative hazardous waste
management standards that operate in
lieu of regulation under 40 CFR parts
260 through 272 for specified hazardous
wastes.
Handlers and transporters who
generate or manage items designated as
a universal waste are subject to the
management standards under 40 CFR
part 273, rather than the full RCRA
subtitle C regulations. 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
destination. Handlers do not include
facilities that treat, dispose of, or recycle
universal waste except as provided in
the universal waste regulations. The
regulations distinguish between ‘‘large
quantity handlers of universal waste’’
(those who handle more than 5,000
kilograms of total universal waste at one
time) and ‘‘small quantity handlers of
universal waste’’ (those who handle
5,000 kilograms or less of universal
waste at one time). The 5,000-kilogram
accumulation criterion applies to the
quantity of all universal wastes
accumulated. The streamlined standards
7 2004 U.S. EPA Puncturing of Aerosol Pesticide
Products Under FIFRA for the Purpose of Recycling,
Letter from Lois Rossi and William Diamond, Office
of Pollution Prevention and Toxic Substances, U.S.
EPA, to John A. Wildie, Randolph Air Force Base,
April 30, 2004, available in the docket for this rule.
8 EPA 2016. Strategy for Addressing the Retail
Sector under RCRA’s Regulatory Framework.
September 12, 2016. https://www.epa.gov/
hwgenerators/strategy-addressing-retail-sectorunder-resource-conservation-and-recovery-acts,
retrieved on January 24, 2018.
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include requirements for storage,
labeling and marking, preparing the
waste for shipment off site, employee
training, response to releases, and, in
the case of large quantity handlers,
notification and tracking of universal
waste shipments. Transporters of
universal waste are also subject to less
stringent requirements than the full
subtitle C hazardous waste
transportation regulations. The primary
difference between the universal waste
transporter requirements and the
subtitle C transportation requirements is
that no manifest is required for transport
of universal waste.
Under the universal waste rule,
destination facilities are those facilities
that treat, store, dispose, or recycle
universal wastes. Universal waste
destination facilities are subject to all
currently applicable requirements for
hazardous waste treatment, storage, and
disposal facilities (TSDFs) and must
receive a RCRA permit for such
activities. Destination facilities that
recycle universal waste and that do not
store that universal waste prior to
recycling in accordance with 40 CFR
261.6(c)(2) may be exempt from
permitting under the federal regulations
(see 40 CFR 273.60(b)). Finally, some
states are authorized to add wastes that
are not federal universal wastes to their
lists of universal wastes. Therefore, in
some states, aerosol cans are already
regulated as a universal waste.
E. State Universal Waste Programs That
Include Aerosol Cans
Four states, California, Colorado, Utah
and New Mexico, already have
universal waste aerosol can programs in
place, and two more states, Ohio and
Minnesota, have proposed to add
aerosol cans to their universal waste
regulations.9 The universal waste
programs in all these states include
streamlined management standards
similar to 40 CFR part 273 for small and
large quantity handlers of universal
waste, and a one-year accumulation
time limit for the aerosol cans. In
addition, the four current state universal
waste programs, as well as Ohio’s
proposed regulations, set standards for
puncturing and draining of aerosol cans
by universal waste handlers.
The aerosol can universal waste
programs of California, Colorado, Utah
and New Mexico, as well as Ohio’s
proposed aerosol can universal waste
program, allow for puncturing and
draining of aerosol cans by universal
9 EPA 2017. Summary of State Programs
Addressing Aerosol Cans Under RCRA Hazardous
Waste Regulations or Under State Universal Waste
Programs.
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waste handlers, as long as specific
management standards and waste
characterization requirements are met.
In addition, California does not allow
off-site commercial processors 10 to
puncture and drain aerosol cans without
a permit, and requires those handlers
that do puncture and drain cans to
submit a notification. Minnesota’s
proposed rule would not allow handlers
to puncture and drain their aerosol cans.
III. Rationale for Proposing Aerosol
Cans Be Managed Under the Universal
Waste Rule
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A. Factors for Inclusion in the Universal
Waste Rule
EPA is proposing to add aerosol cans
to the universal waste rule, because the
Agency believes that this waste meets
the factors that describe hazardous
waste that is appropriate for
management under the streamlined
universal waste system. Adding aerosol
cans to the universal waste rule
simplifies handling and disposal of the
wastes for generators, while ensuring
that aerosol cans are sent to the
appropriate destination facilities, where
they will be managed as a hazardous
waste with all applicable subtitle C
requirements. Management as universal
waste under the proposed requirements
is also expected to facilitate
environmentally sound recycling of the
metal used to make the cans. The
universal waste regulations include
eight factors to consider in evaluating
whether a waste is appropriate for
inclusion in the universal waste rule.
These factors, codified at 40 CFR
273.81, are to be used to determine
whether regulating a particular
hazardous waste under the streamlined
standards would improve overall
management of the waste and, therefore,
whether the waste is a good candidate
for the universal waste rule. As the
Agency noted in the preamble to the
final universal waste rule (60 FR 25513),
not every factor must be met for a waste
to be appropriately regulated under the
universal waste system. However,
consideration of all the factors should
result in a conclusion that regulating a
particular hazardous waste under 40
CFR part 273 will improve waste
management. EPA has examined
information on aerosol cans, including
information submitted in the public
10 According to California’s guidance for their
regulations, a ‘‘commercial processor’’ is any person
that processes aerosol cans in exchange for
compensation. Some examples include: Individuals
from another generator’s site, registered hazardous
waste transporters, operators of hazardous waste
treatment, storage and/or disposal facilities, and
operators of transportable treatment units.
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comments on the 2014 Retail NODA,11
using the criteria in 40 CFR 273.81. In
light of its evaluation of this
information, the Agency is proposing
that on balance, these wastes are
appropriate for inclusion onto the
federal list of universal wastes for
management under part 273. EPA
believes that adding aerosol cans to the
universal waste rule would make
collection and transportation of this
waste to an appropriate facility easier
and, therefore, will help facilitate
recycling and reduce the amount of
aerosol cans disposed of in municipal
landfills. A summary of how the criteria
in 40 CFR 273.81 apply to aerosol cans
is described below. EPA solicits
comment on this analysis.
1. The Waste, as Generated by a Wide
Variety of Generators, Should Be a
Listed or Characteristic Hazardous
Waste (40 CFR 273.81(a))
As discussed in Section III, aerosol
cans frequently demonstrate the
hazardous characteristic for ignitability
(40 CFR 261.21) due to the nature of the
propellant used. In addition, the
contents (propellant or product) may
also cause the can to be a hazardous
waste for other reasons if discarded.
2. The Waste, or Category of Waste,
Should Not Be Exclusive to a Particular
Industry or Group of Industries, But
Generated by a Wide Variety of
Establishments (40 CFR 273.81(b))
EPA has documented in the
Regulatory Impact Analysis (RIA)
developed for this proposal, that large
and small quantity generators that
manage hazardous waste aerosol cans
can be found in 18 different industries
(at the 2-digit North American Industry
Classification System (NAICS) code
level). Thus, aerosol cans are commonly
generated by a wide variety of types of
establishments, including households,
retail and commercial businesses, office
complexes, very small quantity
generators, small businesses,
government organizations, as well as
large industrial facilities.
3. The Waste Should Be Generated by a
Large Number of Generators and
Frequently Generated in Relatively
Small Quantities (40 CFR 273.81(c))
As documented in the RIA, more than
18,000 large and small quantity
generators manage hazardous waste
aerosol cans. Quantities generated vary
depending on the type of generator and
the situations associated with
11 Public comments on the 2014 Retail NODA can
be found in docket number EPA–HQ–RCRA–2012–
0426 on regulations.gov.
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generation. For example, a retail store
may determine that large quantities of
aerosol cans, which can no longer be
sold or donated, must be discarded as
hazardous waste. On the other hand,
entities that use aerosol cans in their
day-to-day operations may generate
small quantities of partially-used
hazardous waste aerosol cans on a
sporadic basis. Data from the RIA
demonstrate that in 2015, large quantity
generators that generated hazardous
waste aerosol cans generated an average
of 1.8 tons per year (approximately
4,100 cans), while small quantity
generators generated an average of 0.5
tons per year (approximately 1,100
cans). The median amounts are 0.12
tons (approximately 274 cans) and 0.04
tons (approximately 85 cans) for large
quantity generators and small quantity
generators respectively, per year.
4. Systems To Be Used for Collecting the
Waste (Including Packaging, Marking,
and Labeling Practices) Should Ensure
Close Stewardship of the Waste (40 CFR
273.81(d))
The baseline universal waste
requirements of notification, labeling,
training, response to releases found in
40 CFR part 273 subparts B and C and
the proposed specific requirements for
management of aerosol cans in 40 CFR
273.13 and 40 CFR 273.33 as discussed
Section IV below are designed to ensure
close stewardship of the hazardous
waste aerosol cans.
5. Risks Posed by the Waste During
Accumulation and Transport Should Be
Relatively Low Compared to the Risks
Posed by Other Hazardous Waste, and
Specific Management Standards Would
Be Protective of Human Health and the
Environment During Accumulation and
Transport (40 CFR 273.81(e))
Aerosol cans are designed to contain
the products they hold during the
periods of storage and transportation as
they move from the manufacturer, to the
retailer, and ultimately to the final
customer. As long as they remain intact,
therefore, EPA expects that hazardous
waste aerosol cans would present a
lower risk as compared to other types of
hazardous waste that are not contained
as-generated under normal management
conditions. In addition, the ignitability
risk posed during accumulation and
transport is addressed by standards set
by the Department of Transportation,
Office of Safety and Health
Administration, and local fire codes.12
12 For example, DOT—49 CFR 173.306 for
Shipping of Limited Quantities, Aerosol Cans and
49 CFR 173.115 for Flammable Gas, OSHA—29 CFR
1910.106(d)(6), Flammable Liquids, 2015 NFPA—
Chapter 30, Flammable and Combustible Liquids
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These standards include requirements
for outer packaging and can design,
including limits on the amount of
flammable gas and general pressure
conditions.
Finally, as discussed below, the
proposed management standards for
aerosol cans that are punctured and
drained at the handler would address
the ignitability risk, and help prevent
releases, and thus EPA believes that the
risks posed by the activities proposed
are addressed by the universal waste
designation.
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6. Regulation of the Waste Under 40
CFR Part 273 Will Increase the
Likelihood That the Waste Will Be
Diverted From Non-Hazardous Waste
Management Systems (e.g., the
Municipal Solid Waste Stream) to
Recycling, Treatment, or Disposal in
Compliance With Subtitle C of RCRA
(40 CFR 273.81(f))
Managing hazardous waste aerosol
cans under the universal waste program
is expected to increase the number of
these items collected, and to increase
the number of aerosol cans being
diverted from the non-hazardous waste
stream into the hazardous waste stream
because it would allow generators,
especially those that generate this waste
sporadically, to send it to a central
consolidation point. Under the
universal waste rule, a handler of
universal waste can send the universal
waste to another handler, where it can
be consolidated into a larger shipment
for transport to a destination facility.
Therefore, under the proposed rule it
would be more economical to send
hazardous waste aerosol cans to
recycling for recovery of metal values.
EPA thus expects such management to
not only advance the RCRA goal of
increased resource conservation, but
also to increase proper disposal as
hazardous waste, making it less likely
that it will be sent for improper disposal
in municipal landfills or municipal
incinerators. In addition, because of the
streamlined structure of the universal
waste rule makes aerosol can collection
programs more economical, hazardous
waste aerosol cans that might otherwise
be sent to a municipal landfill under a
VSQG or household hazardous waste
exemption, would be more easily
collected and consolidated for
hazardous waste disposal by those who
are interested in managing it this way.
This waste would be diverted from the
municipal solid waste stream to
universal waste management.
Code, and Chapter 30B, Code for the Manufacture
and Storage of Aerosol Products.
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7. Regulation of the Waste Under 40
CFR Part 273 Will Improve the
Implementation and Compliance With
the Hazardous Waste Regulatory
Program (40 CFR 273.81(g))
The structure and requirements of the
universal waste rule are well suited to
the circumstances of handlers of
hazardous waste aerosol cans and their
participation in the universal waste
program will improve compliance with
the hazardous waste regulations. In
particular, handlers of hazardous waste
aerosol cans who are infrequent
generators of hazardous waste and who
might otherwise be unfamiliar with the
more complex subtitle C management
structure, but who generate hazardous
waste aerosol cans will be able to more
easily send this waste for proper
management. Therefore, adding aerosol
cans to the universal waste rule would
offer a protective hazardous waste
management system that is likely to be
more accessible, particularly for the
retail sector, which can pose unique
compliance challenges as compared to
manufacturing and other ‘‘traditional’’
RCRA-regulated sectors.13
8. Additional Factor (40 CFR 273.81(h)):
States’ Experience Under Existing State
Universal Waste Programs Indicates
That Regulation Under 40 CFR Part 273
Will Improve Management of Aerosol
Cans
As discussed above, the factors
included in 40 CFR 273.81 are designed
to determine whether regulating a
particular hazardous waste under the
streamlined standards of the universal
waste rules would improve the overall
management of the waste. Because in
this case, as at least four states have
added aerosol cans to their universal
waste programs, those states’
experiences with management of aerosol
cans under their respective universal
waste programs provides a useful source
of information to inform EPA’s
judgment on whether to propose adding
aerosol cans to the national universal
waste program.
Information supplied to EPA from
those states’ officials indicates that their
programs improve the implementation
of the hazardous waste program.
Specifically, State waste management
officials have represented to EPA that
these programs have been operating
well and achieving their objective of
facilitating safe management of
13 EPA 2016. Strategy for Addressing the Retail
Sector under RCRA’s Regulatory Framework.
September 12, 2016. https://www.epa.gov/
hwgenerators/strategy-addressing-retail-sectorunder-resource-conservation-and-recovery-acts.
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hazardous waste aerosol cans.14 In
particular, state officials from both
California and Colorado stated to EPA
that their respective aerosol can
universal waste programs have been in
effect since 2002, and they have not
identified any problems with
compliance with the standards.
Accordingly, this information also
weighs in favor of concluding that
management of aerosol cans under the
federal universal waste regulations is
likely to be successful.
B. Expected Changes in Management of
Aerosol Cans
If EPA’s proposal to include aerosol
cans in the list of Universal Waste is
finalized as proposed, EPA expects that
the number of aerosol cans that are
diverted from municipal solid waste
landfills and incinerators to recycling or
disposal in subtitle C facilities would
increase. Small and large quantity
generators are already required to
manage their hazardous waste aerosol
cans under RCRA subtitle C. As a result
of implementation of this rule in the
states, some of these generators would
likely begin managing their aerosol cans
as a universal waste, either to save
money or to improve implementation of
their existing waste management
program. One of the streamlined
provisions of the universal waste rule
allows consolidation of aerosol cans at
central locations, which makes it easier
for smaller users to arrange for
hazardous waste recycling or disposal of
these materials when they are generated.
EPA intends to encourage individual
households and VSQGs to participate in
such programs, which would divert
aerosol cans from the municipal waste
stream.
In summary, EPA believes that
management of hazardous waste aerosol
cans can best be implemented through
a universal waste approach where
handlers are operating within a simple,
streamlined management system with
some limited oversight. The universal
waste program addresses the
environmental concerns surrounding
the management of such wastes, while
at the same time putting into place a
structure that will allow for and
encourage increased collection of
aerosol cans for recycling.
IV. Discussion of Proposed Rule
A. Waste Covered by Proposed Rule
EPA is proposing that an ‘‘aerosol
can’’ be defined as an intact container
14 EPA 2017. Summary of State Programs
Addressing Aerosol Cans Under RCRA Hazardous
Waste Regulations or Under State Universal Waste
Programs. December 2017.
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in which gas under pressure is used to
aerate and dispense any material
through a valve in the form of a spray
or foam. This definition is the same as
the definition of aerosol can in the
California, Colorado, New Mexico and
Utah universal waste programs, with the
exception of a size limit in Utah’s
definition of aerosol can, as described
below. EPA is proposing to adopt this
definition of aerosol can to keep
consistency with the existing state
programs.
EPA also intends this definition to be
limited to sealed containers whose
intended use is to dispense a material
by means of a propellant or compressed
gas. Aerosol cans are designed to
contain those materials until they are
intended for release and to present
minimal risk during normal storage and
transport. Other types of containers,
including compressed gas canisters and
propane cylinders, present a greater risk
than aerosol cans and would not be
included.
Utah’s definition of aerosol cans
includes a size limitation of twenty-four
ounces for aerosol cans that would
qualify under their universal waste
provisions. EPA has not, however,
included a size limitation on universal
waste aerosol cans in this proposal
because EPA believes that aerosol cans
that meet the proposed definition in
general can be safely managed under the
universal waste system for the reasons
explained in Section III above, and has
not identified reasons why size would
affect the considerations described.
However, EPA requests comment on
whether to include a size limit of
twenty-four ounces or other type of
limitations on the types of aerosol cans
that would be eligible for the federal
universal waste rule, including any
information on how such a limit would
be necessary to ensure safe management
of aerosol cans. EPA requests comment
on the appropriate scope of the
definition of ‘‘aerosol can’’ and the
types of materials that should fall under
it.
Proposed section 273.6 has specific
exclusions from the coverage of the
proposed rules in paragraph 273.6(b).
First, the proposed rules at 273.6(b)(1)
and (2) exclude from the definition of
‘‘aerosol can’’ those cans that are not yet
a waste under 40 CFR part 261, and
those cans that are not hazardous waste,
respectively. An aerosol can would only
be subject to the proposed rule if it is
considered a hazardous waste under 40
CFR part 261, and before a material can
be determined to be a hazardous waste,
it first must be determined to be a solid
waste. Accordingly, any aerosol can that
is not yet a solid waste (for example,
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because it is not yet discarded) would
also not be subject to this section.
Consistent with prior universal waste
rules, the proposed rule at 273.6(c) also
explains that a used aerosol can
becomes a waste on the date it is
discarded, and an unused aerosol can
becomes a waste on the date the handler
decides to discard it.
A solid waste may be a hazardous
waste either because it is listed as a
hazardous waste in subpart D of 40 CFR
part 261 or because it exhibits one or
more of the characteristics of hazardous
waste, as provided in subpart C of 40
CFR part 261. For example, as discussed
in Section II above, aerosol cans are
frequently hazardous due to the
ignitability characteristic, and in some
cases may also contain listed hazardous
waste or materials exhibiting another
hazardous characteristic. If a solid waste
aerosol can is determined to be nonhazardous then it is also not subject to
the proposed universal waste
regulations.
In proposed 273.6(b)(3), EPA
specifically excludes aerosol cans that
have been emptied of their contents
(both propellant and product). Once the
contents of a universal waste aerosol
can have been removed, the emptied
can is considered a new point of
generation and is subject to a hazardous
waste determination per 40 CFR 262.11.
An aerosol can that meets the definition
of empty container in 40 CFR 261.7 is
not subject to hazardous waste
regulation, and may be recycled as scrap
metal.
The proposed rules also exclude at
273.4(b)(4), aerosol cans that show
evidence of leakage, spillage, or damage
that could cause leakage under
reasonably foreseeable conditions.
Through this exclusion, EPA intends
that hazardous waste aerosol cans that
are not intact continue to be subject to
the full hazardous waste standards. The
protectiveness of the proposed
management standards described below
relies in part on the fact that the aerosol
cans to be managed in accordance with
those rules are not leaking or otherwise
damaged where contents or propellants
could be dispersed out of the can,
because such uncontrolled release could
pose risk to human health and the
environment, including an increased
risk of fire. A leaking or damaged
hazardous waste aerosol can that
presents a risk of the contents or
propellants being dispersed out of the
can would need to be managed as RCRA
hazardous waste under 40 CFR parts
260 through 272. Therefore, this
provision includes all discarded, intact,
non-empty hazardous waste aerosol
cans.
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B. Proposed Management Requirements
for Aerosol Cans
1. Proposed Requirements for Small and
Large Quantity Handlers
Under this proposed rule, the existing
universal waste requirements currently
applicable to small quantity handlers of
universal waste (SQHUWs) and large
quantity handlers of universal waste
(LQHUWs) would also be applicable to
handlers of discarded aerosol cans. For
both SQHUWs and LQHUWs, these
requirements include waste
management standards, labeling and
marking, accumulation time limits,
employee training, response to releases,
requirements related to off-site
shipments, and export requirements.
LQHUWs are subject to additional
notification and tracking requirements.
For the labeling requirement, EPA is
proposing that either each aerosol can,
or a container in which the aerosol cans
are contained, must be labeled or
marked clearly with any of the
following phrases: ‘‘Universal Waste—
Aerosol Can(s),’’ ‘‘Waste Aerosol
Can(s)’’, or ‘‘Used Aerosol Can(s)’’.
In addition, EPA is proposing that
small and large quantity universal waste
handlers must follow certain specific
management standards while handling
their aerosol cans. Under this proposal,
all handlers must manage their
universal waste aerosol cans in a
manner designed to prevent releases to
the environment. This includes
accumulating universal waste aerosol
cans in containers that are structurally
sound and compatible with the contents
of the can, and show no evidence of
leaks, spills, or damage that could cause
leaks under reasonably foreseeable
conditions. Handlers may sort aerosol
cans by type and consolidate intact
aerosol cans in larger containers,
remove actuators to reduce the risk of
accidental release, and under certain
conditions, may puncture and drain
aerosol cans that are being recycled, as
described below.
2. Proposed Requirements and Request
for Comment on Puncturing and
Draining at Small and Large Quantity
Handlers
As discussed in Section II above,
under the current hazardous waste
regulations, puncturing and draining an
aerosol can, if performed as part of the
recycling process (e.g., scrap metal
recycling), is exempt from RCRA
permitting requirements per 40 CFR
261.6(c). Storage of hazardous waste
aerosol cans prior to recycling still
requires a permit, unless it is exempt
from permitting under another
provision.
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However, EPA expects that
puncturing and draining activities at
universal waste handlers will be
different from those currently performed
by hazardous waste generators. Because
handlers may receive universal waste
from many other handlers, the volume
of aerosol cans punctured and drained
at a commercial universal waste handler
is likely to be much greater than at a
typical hazardous waste generator
(which can only puncture and drain its
own hazardous waste aerosol cans). In
addition, under the universal waste
regulations, handlers can store their
universal waste up to a year, which
could increase the number of cans
punctured and drained at one time if the
facility processes the cans in batches.
Because of the likely differences
between recycling of aerosol cans at
hazardous waste generators versus
recycling of aerosol cans at universal
waste handlers, EPA is proposing
specific management standards for the
puncturing and draining of aerosol cans
at universal waste handlers, similar to
the requirements currently being
implemented in states that have added
aerosol cans to their list of universal
waste. The aerosol can universal waste
programs of California, Colorado, Utah
and New Mexico, as well as Ohio’s
proposed aerosol can universal waste
program, allow for puncturing and
draining of aerosol cans by universal
waste handlers, as long as specific
management standards and waste
characterization requirements are met.
Similar to the current state
requirements, EPA is proposing that
puncturing and draining activities must
be conducted by a commercial device
specifically designed to safely puncture
aerosol cans and effectively contain the
residual contents and any emissions
thereof. Puncturing and draining
systems for aerosol cans are available
from multiple commercial vendors.
These devices generally consist of an
enclosed puncturing device that
punctures an aerosol can, allowing the
contents to be drained into an attached
container. In many cases, these
containers are 55-gallon drums with a
filter made of carbon or similar
materials to capture any gases that may
escape the 55-gallon drum during the
puncturing and draining process.
Manufacturers of aerosol can
puncturing and draining devices
include instructions for their use.15
These instructions include operating
devices in a well ventilated area that is
free from sparks and ignition sources in
15 EPA
2017. Compilation of Manufacturer’s
Guidance on Devices for Puncturing and Draining
Aerosol Cans, December 2017.
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order to prevent fires, use of personal
protective equipment such as safety
goggles, and segregating incompatible
products from being drained into the
same container. Operators of puncturing
and draining devices are also instructed
to ensure that the container remains
closed, does not become overfilled and
that the container storing the contents of
the drained aerosol cans is also kept in
a well ventilated area free from sparks
or ignition sources.
However, the Agency has previously
investigated the performance of at least
one aerosol can puncturing and draining
device through EPA’s Environmental
Technology Verification (ETV) program.
The ETV review demonstrated one type
of drum-top puncturing and draining
system was effective in processing at
least 187 cans before breakthrough of
volatile chemicals occurred, which was
significantly less than the 600–750 cans
recommended by some manufacturers.
The drum that contained the drained
liquid from the aerosol cans was also
never more than 25% full before
breakthrough occurring. These findings
were contrary to manufacturer
recommendations of ensuring the
container is not filled past 70% full in
order to avoid breakthrough of volatile
chemicals. In addition, the ETV program
found that halogenated compounds
(e.g., chlorinated solvents) were found
to be incompatible with the seal and
gasket materials.
The performance of aerosol can
puncturing and draining devices will
vary by manufacturer and it remains the
responsibility of the operator to ensure
that the puncturing device is properly
draining the contents of the aerosol cans
into the drum, that breakthrough is not
occurring, and that aerosol cans
incompatible with the device are not
punctured. For example, information is
readily available regarding potential
incompatibilities for aerosol can
propellants with puncturing devices
containing rubber seals or gaskets.16
Therefore, EPA is proposing that
handlers must establish a written
procedure detailing how to safely
puncture and drain universal waste
aerosol can (including operation and
maintenance of the unit; segregation of
incompatible wastes; and proper waste
management practices to prevent fires or
releases), and ensure employees
operating the device are trained in the
proper procedures. At minimum, EPA is
proposing that the written procedure
address the operation and maintenance
of the unit including its proper
assembly; segregation of incompatible
wastes; and proper waste management
practices, (e.g., ensuring that flammable
wastes are stored away from heat or
open flames).
EPA is also proposing that the actual
puncturing of the cans should be done
in a manner designed to prevent fires
and to prevent the release of the aerosol
can contents to the environment. This
includes, but is not limited to, locating
the equipment on a solid, flat surface in
a well-ventilated area.
In addition, EPA is proposing that the
contents from the cans should be
immediately transferred from the waste
aerosol can, or puncturing device if
applicable, to a container or tank and
that the contents are subject to a
hazardous waste determination under
40 CFR 262.11. The handler becomes
that hazardous waste generator of the
hazardous aerosol can contents and
must manage those waste in accordance
with applicable RCRA regulations.
The proposed rule would also require
that a written procedure be in place in
the event of a spill or release and a spill
clean-up kit should be provided. All
spills or leaks of the contents of the
aerosol cans should be cleaned up
promptly.
Finally, EPA notes that all
puncturing, waste collection, and
disposal, must be conducted in
compliance with all applicable federal,
state and local waste (solid and
hazardous waste) and occupational
safety and health laws and regulations.
In addition, EPA is requesting
comment on establishing further
limitations on puncturing and draining
of aerosol cans, similar to limitations
that have been established by state
waste management programs either
through regulations or guidance. Many
states have issued guidelines for
puncturing and draining aerosol cans
under their hazardous waste program.
Some state guidelines recommend
against the generator puncturing and
draining certain types of aerosol cans
due to the possible incompatibility with
the puncturing and draining equipment
or the contents of other cans being
drained, or due to the hazardous nature
of the contents. These aerosol cans
include, but are not limited to, cans
containing the following contents:
Ethers including ethyl ether, chlorinated
compounds, pesticides, herbicides,
freons, foamers, corrosive cleaners and
unknowns.17 EPA requests comment on
16 EPA 2017. Compilation of Manufacturer’s
Guidance on Devices for Puncturing and Draining
Aerosol Cans, December 2017. See table beginning
on page 54.
17 EPA 2017. Summary of State Programs
Addressing Aerosol Cans Under RCRA Hazardous
Waste Regulations or Under State Universal Waste
Programs. December 2017.
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establishing additional regulatory
requirements for can draining devices
and limits on aerosol cans that may pose
compatibility problems and that may be
punctured and drained under the
proposed rules.
In addition, EPA is requesting
comment on limiting puncturing and
draining practices to handlers that are
not commercial processors (i.e., a
person that processes aerosol cans
received from other entities in exchange
for compensation). Such a limitation
would be consistent with California’s
universal waste program. Under this
option, the puncturing and draining
management standards would only
apply to handlers that are not
commercial processors. Handlers that
are commercial processors may still
accept aerosol cans and process the cans
by sorting and consolidating them, but
would be unable to puncture and drain
the cans. Under this option, commercial
processors that would like to puncture
and drain aerosol cans must first meet
the requirements for a universal waste
destination facility (including requiring
a permit for storage of the hazardous
waste aerosol cans prior to recycling).
Handlers would still be allowed to
puncture and drain the hazardous waste
aerosol cans that they generate.
1. Proposed Requirements for
Transporters
This proposed rule would not change
any of the existing requirements
applicable to universal waste
transporters. Under 40 CFR 273.9, the
definition of a universal waste
transporter is ‘‘a person engaged in the
off-site transportation of universal waste
by air, rail, highway, or water.’’ Persons
meeting the definition of universal
waste transporter include those persons
who transport universal waste from one
universal waste handler to another, to a
processor, to a destination facility, or to
a foreign destination. These persons are
subject to the universal waste
transporter requirements of part 273,
subpart D. EPA notes that this proposed
rule also would not affect the
applicability of shipping requirements
under the hazardous waste materials
regulations of the Department of
Transportation. Transporters continue
to be subject to these requirements, if
applicable (e.g., 49 CFR 173.306 for
shipping of limited quantities of aerosol
cans, or 49 CFR 173.115(l) which sets
limits in the definition of ‘‘aerosol’’ for
the purpose of shipping flammable gas).
2. Proposed Requirements for
Destination Facilities
This proposed rule would not change
any of the existing requirements
VerDate Sep<11>2014
16:06 Mar 15, 2018
Jkt 244001
applicable to universal waste
destination facilities (subpart E of part
273). Under 40 CFR 273.9, the definition
of a destination facility is ‘‘a facility that
treats, disposes of, or recycles a
particular category of universal waste’’
(except certain activities specified in the
regulations at § 273.13(a) and (c) and
§ 273.33(a) and (c)).
3. Effect of This Proposed Rule on
Household Wastes and Very Small
Quantity Generators
Adding hazardous waste aerosol cans
to the federal definition of universal
wastes would not impose any
requirements on households and very
small quantity generators for managing
these cans. Household waste continues
to be exempt from RCRA subtitle C
regulations under 40 CFR 261.4(b)(1).
However, under the universal waste
rule, households and VSQGs may
choose to manage their hazardous waste
aerosol cans in accordance with either
the VSQG regulations under 40 CFR
261.5 or as a universal waste under part
273 (40 CFR 273.8(a)(2)). It should be
noted, however, that 40 CFR 273.8(b)
would continue to apply. Under this
provision, if household or VSQG wastes
are mixed with universal waste subject
to the requirements of 40 CFR part 273
(i.e., universal waste that is not
generated by households or VSQGs), the
commingled waste must be handled as
universal waste in accordance with part
273. Under this proposed rule, handlers
of universal waste who collect 5,000
kilograms or more of this commingled
aerosol can waste would be considered
large quantity handlers of universal
waste and must meet the requirements
of that category of universal waste
handler. Hazardous waste aerosol cans
that are managed as a universal waste
under 40 CFR part 273 would not be
required to be included in a facility’s
determination of hazardous waste
generator status (40 CFR 261.5(c)(6)).
Therefore, a generator that manages
such cans under the universal waste
rule and does not generate any other
hazardous waste would not be subject to
other subtitle C hazardous waste
management regulations, such as the
hazardous waste generator regulations
in part 262. A large or small universal
waste handler that generates more than
100 kilograms but less than 1,000
kilograms of hazardous waste in a
calendar month in addition to the
universal waste it generates would be
regulated as a small quantity generator
of hazardous waste and would be
required to manage all hazardous waste
not included within the scope of that
universal waste rule in accordance with
all applicable subtitle C hazardous
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waste management standards. Similarly,
a larger or small universal waste handler
that generates 1000 kilograms or more of
hazardous waste in a calendar month in
addition to the universal waste it
generates would be regulated as a large
quantity generator of hazardous waste.
4. Applicability of Land Disposal
Restriction Requirements
This proposed rule would not change
the applicability of land disposal
restriction (LDR) requirements to
universal waste. Under the existing
regulations (40 CFR 268.1(f)), universal
waste handlers and transporters are
exempt from the land disposal
restriction (LDR) requirements regarding
testing, tracking, and recordkeeping in
40 CFR 268.7 and the storage
prohibition in 40 CFR 268.50. EPA
proposes to amend 40 CFR 268.1(f) to
add aerosol can universal waste for
consistency. This proposed rule would
also not change the regulatory status of
destination facilities; they remain
subject to the full LDR requirements.
V. Technical Corrections
As part of this rulemaking, EPA is
proposing four technical corrections to
the universal waste standards for
mercury-containing equipment in 40
CFR 273.13(c)(2)(iii) and (iv) and
273.33(c)(2)(iii) and (iv). Each of these
paragraphs contains a reference to 40
CFR 262.34, which was removed and
reserved as part of the November 28,
2016, Hazardous Waste Generator
Improvements Rule (81 FR 85732). EPA
neglected to update these references as
part of its corresponding changes in that
rule and is correcting that mistake here.
In all four places, EPA is proposing that
the regulation refer to 40 CFR 262.16 or
262.17, as applicable.
VI. State Authority
A. Applicability of Proposed Rule in
Authorized States
Under section 3006 of RCRA, EPA
may authorize qualified states to
administer and enforce the RCRA
hazardous waste program within the
state. Following authorization, EPA
retains enforcement authority under
sections 3008, 3013, and 7003 of RCRA,
although authorized states have primary
enforcement responsibility. The
standards and requirements for state
authorization are found at 40 CFR part
271. Prior to enactment of the
Hazardous and Solid Waste
Amendments of 1984 (HSWA), a State
with final RCRA authorization
administered its hazardous waste
program entirely in lieu of EPA
administering the federal program in
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that state. The federal requirements no
longer applied in the authorized state,
and EPA could not issue permits for any
facilities in that state, since only the
state was authorized to issue RCRA
permits. When EPA promulgated new,
more stringent federal requirements for
these pre-HSWA regulations, the state
was obligated to enact equivalent
authorities within specified time frames.
However, the new federal requirements
did not take effect in an authorized
state, until the state adopted the federal
requirements as state law. In contrast,
under RCRA section 3006(g) (42 U.S.C.
6926(g)), which was added by HSWA,
new requirements and prohibitions
imposed under HSWA authority take
effect in authorized states at the same
time that they take effect in
unauthorized states. EPA is directed by
the statute to implement these
requirements and prohibitions in
authorized states, including the
issuance of permits, until the state is
granted authorization to do so. While
states must still adopt HSWA related
provisions as state law to retain final
authorization, EPA implements the
HSWA provisions in authorized states
until the states do so.
Authorized states are required to
modify their programs only when EPA
enacts federal requirements that are
more stringent or broader in scope than
existing federal requirements. RCRA
section 3009 allows the states to impose
standards more stringent than those in
the federal program (see also 40 CFR
271.1). Therefore, authorized states may,
but are not required to, adopt federal
regulations, both HSWA and nonHSWA, that are considered less
stringent than previous federal
regulations.
daltland on DSKBBV9HB2PROD with PROPOSALS
B. Effect on State Authorization
This proposed rule would be less
stringent than the current federal
program. Because states are not required
to adopt less stringent regulations, they
would not have to adopt the universal
waste regulations for aerosol cans,
although EPA encourages them to do so.
Some states have already added aerosol
cans to the list of universal wastes in
that state, and others may do so in the
future. If a state’s standards for aerosol
cans are less stringent than those in the
final rule, the state would have to
amend its regulations to make them at
least equivalent to the federal standards
and pursue authorization.
VII. Statutory and Executive Order
Reviews
Additional information about these
statutes and Executive Orders can be
VerDate Sep<11>2014
16:06 Mar 15, 2018
Jkt 244001
found at https://www.epa.gov/lawsregulations/laws-and-executive-orders.
A. Executive Order 12866: Regulatory
Planning and Review and Executive
Order 13563: Improving Regulation and
Regulatory Review
This action is not a significant
regulatory action because it does not
have a significant economic impact nor
does it raise novel legal or policy issues.
The Office of Management and Budget
(OMB) waived review.
B. Executive Order 13771: Reducing
Regulations and Controlling Regulatory
Costs
This action is expected to be an
Executive Order 13771 deregulatory
action. Details on the estimated cost
savings of this proposed rule can be
found in EPA’s analysis of the potential
costs and benefits associated with this
action.
C. Paperwork Reduction Act (PRA)
The information collection activities
in this proposed rule will be submitted
for approval to the Office of
Management and Budget (OMB) under
the PRA. The Information Collection
Request (ICR) documents that the EPA
prepared have been assigned EPA ICR
number 1597.12 and ICR number
2513.03. You can find copies of the ICRs
in the docket for this rule, and they are
briefly summarized here.
Because aerosol cans managed under
the proposed rule are not counted
toward a facility’s RCRA generator
status, respondents will see a reduction
in burden. This is because the aerosol
cans would not be subject to
recordkeeping and reporting
requirements as hazardous waste, and
the respondent may no longer be subject
to hazardous waste generator
recordkeeping and reporting
requirements, depending on the
quantity of non-aerosol can hazardous
waste they generate. The existing
universal waste requirements currently
applicable to small quantity handlers of
universal waste (SQHUWs) and large
quantity handlers of universal waste
(LQHUWs) would also be applicable to
handlers of aerosol can waste. For both
SQHUWs and LQHUWs, these
requirements include labeling and
marking, employee training, response to
releases, and export requirements.
LQHUWs are also subject to additional
notification and tracking requirements.
Respondents/affected entities: The
information collection requirements of
the proposed rule affect facilities that
handle aerosol can waste and vary based
on facility generator and handler status.
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11663
Respondent’s obligation to respond:
The recordkeeping and notification
requirements are required in order to
obtain a benefit under 40 CFR part 273.
Estimated number of respondents:
639.
Frequency of response: One-time
notification for LQHUWs, annual
training requirements for all universal
waste handlers; per-shipment costs for
labeling (all handlers) and tracking
(LQHUWs).
Total estimated burden: EPA
estimates the annual burden to
respondents to be a net reduction in
burden of approximately 39,113 hours.
Burden is defined at 5 CFR 1320.3(b).
Total estimated cost: The total
estimated annual cost of this rule is a
cost savings of approximately $2.0
million. This cost savings is composed
of approximately $1.94 million in
annualized avoided labor costs and
$0.06 million in avoided capital or
operation and maintenance costs.
An agency may not conduct or
sponsor, and a person is not required to
respond to, a collection of information
unless it displays a currently valid OMB
control number. The OMB control
numbers for the EPA’s regulations in 40
CFR are listed in 40 CFR part 9. The
OMB Control Number for this proposed
rule is 2050–0145. Submit your
comments on the Agency’s need for this
information, the accuracy of the
provided burden estimates and any
suggested methods for minimizing
respondent burden to the EPA using the
docket identified at the beginning of this
rule. You may also send your ICRrelated comments to OMB’s Office of
Information and Regulatory Affairs via
email to OIRA_submission@
omb.eop.gov, Attention: Desk Officer for
the EPA. Since OMB is required to make
a decision concerning the ICR between
30 and 60 days after receipt, OMB must
receive comments no later than April
16, 2018. The EPA will respond to any
ICR-related comments in the final rule.
D. Regulatory Flexibility Act (RFA)
I certify that this proposed action will
not have a significant economic impact
on a substantial number of small entities
under the RFA. In making this
determination, the impact of concern is
any significant adverse economic
impact on small entities. An agency may
certify that a rule will not have a
significant economic impact on a
substantial number of small entities if
the rule relieves regulatory burden, has
no net burden or otherwise has a
positive economic effect on the small
entities subject to the rule. As
documented in the Regulatory Impact
Analysis found in the docket for this
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proposal, EPA does not expect the rule
to result in an adverse impact to a
significant number of small entities,
since the rule is expected to result in net
cost savings for all entities affected by
the rule. We have therefore concluded
that this proposed action will either
relieve regulatory burden or have no net
regulatory burden for all directly
regulated small entities.
E. Unfunded Mandates Reform Act
(UMRA)
As documented in the Regulatory
Impact Analysis found in the docket for
this proposal, this proposed action does
not contain an unfunded mandate of
$100 million or more as described in
UMRA, 2 U.S.C. 1531–1538, and does
not significantly or uniquely affect small
governments.
F. Executive Order 13132: Federalism
As documented in the Regulatory
Impact Analysis found in the docket for
this proposal, this proposed action does
not have federalism implications. It will
not have substantial direct effects on the
states, on the relationship between the
national government and the states, or
on the distribution of power and
responsibilities among the various
levels of government.
G. Executive Order 13175: Consultation
and Coordination With Indian Tribal
Governments
This proposed action does not have
tribal implications as specified in
Executive Order 13175. Because the
proposed rule is expected to result in
net cost savings, EPA does not expect
that it would result in any adverse
impacts on tribal entities. Thus,
Executive Order 13175 does not apply
to this proposed action.
I. Executive Order 13211: Actions
Concerning Regulations That
Significantly Affect Energy Supply,
Distribution or Use
This proposed action is not subject to
Executive Order 13211, because it is not
a significant regulatory action under
Executive Order 12866.
PART 260—HAZARDOUS WASTE
MANAGEMENT SYSTEM: GENERAL
This rulemaking does not involve
technical standards.
■
K. Executive Order 12898: Federal
Actions To Address Environmental
Justice in Minority Populations and
Low-Income Populations
The EPA believes that this proposed
action does not have disproportionately
high and adverse human health or
environmental effects on minority
populations, low-income populations
and/or indigenous peoples, as specified
in Executive Order 12898 (59 FR 7629,
February 16, 1994).
The documentation for this decision
is contained in Regulatory Impact
Analysis of Proposed Rule to Add
Aerosol Cans to the Universal Waste
Rule, found in the docket for this
proposal.
daltland on DSKBBV9HB2PROD with PROPOSALS
Authority: 42 U.S.C. 6905, 6912(a), 6921–
6927, 6930, 6934, 6935, 6937, 6938, 6939,
and 6974.
Subpart B—Definitions
List of Subjects
40 CFR Part 260
§ 260.10
Environmental protection,
Administrative practice and procedure,
Hazardous waste.
40 CFR Part 261
Environmental protection, Hazardous
waste, Recycling.
40 CFR Part 264
Environmental protection, Hazardous
waste, Packaging and containers.
This proposed action is not subject to
Executive Order 13045 because it is not
economically significant as defined in
Executive Order 12866, and because the
EPA does not believe the environmental
health or safety risks addressed by this
proposed action present a
disproportionate risk to children. This
proposed action’s health and risk
assessments are contained in the
Regulatory Impact Analysis of Proposed
Rule to Add Aerosol Cans to the
Universal Waste Rule, found in the
docket for this proposal.
40 CFR Part 268
Jkt 244001
1. The authority citation for part 260
continues to read as follows:
2. Section 260.10 is amended by:
a. Adding the definition of ‘‘Aerosol
can’’ in alphabetical order;
■ b. Amending the definition
‘‘Universal waste’’ by:
■ i. Republishing the introductory text;
■ ii. Removing the word ‘‘and’’ at the
end of paragraph (3);
■ iii. Revising paragraph (4); and
■ iv. Adding paragraph (5); and
■ c. Republishing the introductory text
of paragraph (2) and revising paragraph
(2)(i) of the definition of ‘‘Universal
waste handler’’.
The revisions and additions read as
follows:
40 CFR Part 265
16:06 Mar 15, 2018
For the reasons set out in the
preamble, title 40, chapter I of the Code
of Federal Regulations, parts 260, 261,
264, 265, 268, 270, and 273 are
proposed to be amended as follows:
J. National Technology Transfer and
Advancement Act (NTTAA)
H. Executive Order 13045: Protection of
Children From Environmental Health
Risks and Safety Risks
VerDate Sep<11>2014
Dated: March 5, 2018.
E. Scott Pruitt,
Administrator.
Environmental protection, Hazardous
waste, Packaging and containers.
Environmental protection, Hazardous
waste, Reporting and recordkeeping
requirements.
40 CFR Part 270
Environmental protection, Hazardous
materials transportation, Reporting and
recordkeeping requirements.
40 CFR Part 273
Environmental protection, Hazardous
materials transportation, Hazardous
waste.
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■
■
Definitions.
*
*
*
*
*
Aerosol can means 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.
*
*
*
*
*
Universal waste means any of the
following hazardous wastes that are
managed under the universal waste
requirements of part 273 of this chapter:
*
*
*
*
*
(4) Lamps as described in § 273.5 of
this chapter; and
(5) Aerosol cans as described in
§ 273.6 of this chapter.
Universal waste handler:
*
*
*
*
*
(2) Does not mean:
(i) A person who treats (except under
the provisions of 40 CFR 273.13(a) or
(c), or 40 CFR 273.33(a) or (c)), disposes
of, or recycles (except under the
provisions of 40 CFR 273.13(e) or 40
CFR 273.33(e)) universal waste; or
*
*
*
*
*
PART 261—IDENTIFICATION AND
LISTING OF HAZARDOUS WASTE
3. The authority citation for part 261
continues to read as follows:
■
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Authority: 42 U.S.C. 6905, 6912(a), 6921,
6922, 6924(y), and 6938.
Subpart A—General
4. Section 261.9 is amended by:
a. Removing the word ‘‘and’’ at the
end of paragraph (c);
■ b. Revising paragraph (d); and
■ c. Adding paragraph (e).
The revisions and additions read as
follows:
■
■
§ 261.9
Requirements for universal waste.
*
*
*
*
*
(d) Lamps as described in § 273.5 of
this chapter; and
(e) Aerosol cans as described in
§ 273.6 of this chapter.
Authority: 42 U.S.C. 6905, 6912(a), 6924,
and 6925.
Subpart A—General
10. Section 268.1 is amended by:
a. Removing the word ‘‘and’’ at the
end of paragraph (f)(3);
■ b. Revising paragraph (f)(4); and
■ c. Adding paragraph (f)(5)
The revision and addition read as
follows:
■
■
§ 268.1
Subpart A—General
Purpose, scope, and applicability.
*
6. Section 264.1 is amended by:
a. Removing the word ‘‘and’’ at the
end of paragraph (g)(11)(iii);
■ b. Revising paragraph (g)(11)(iv); and
■ c. Adding paragraph (g)(11)(v).
The revision and addition read as
follows:
■
■
Purpose, scope and applicability.
*
*
*
*
*
(g) * * *
(11) * * *
(iv) Lamps as described in § 273.5 of
this chapter; and
(v) Aerosol cans as described in
§ 273.6 of this chapter.
*
*
*
*
*
PART 265—INTERIM STATUS
STANDARDS FOR OWNERS AND
OPERATORS OF HAZARDOUS WASTE
TREATMENT, STORAGE, AND
DISPOSAL FACILITIES
7. The authority citation for part 265
continues to read as follows:
■
Authority: 42 U.S.C. 6905, 6906, 6912,
6922, 6923, 6924, 6925, 6935, 6936, and
6937.
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PART 268—LAND DISPOSAL
RESTRICTIONS
Authority: 42 U.S.C. 6905, 6912(a), 6921,
and 6924.
5. The authority citation for part 264
continues to read as follows:
Jkt 244001
PART 270—EPA ADMINISTERED
PERMIT PROGRAMS: THE
HAZARDOUS WASTE PERMIT
PROGRAM
11. The authority citation for part 270
continues to read as follows:
■
Authority: 42 U.S.C. 6905, 6912, 6924,
6925, 6927, 6939, and 6974.
Subpart A—General Information
12. Section 270.1 is amended by:
a. Removing the word ‘‘and’’ at the
end of paragraph (c)(2)(viii)(C);
■ b. Revising paragraph (c)(2)(viii)(D);
and
■ c. Adding paragraph (c)(2)(viii)(E).
The revision and addition read as
follows:
■
■
*
8. Section 265.1 is amended by:
a. Removing the word ‘‘and’’ at the
end of paragraph (c)(14)(iii);
■ b. Revising paragraph (c)(14)(iv); and
■ c. Adding paragraph (c)(14)(v).
The revision and addition read as
follows:
■
■
*
*
*
*
(f) * * *
(4) Lamps as described in § 273.5 of
this chapter; and
(5) Aerosol cans as described in
§ 273.6 of this chapter.
§ 270.1 Purpose and scope of these
regulations.
Subpart A—General
16:06 Mar 15, 2018
*
*
*
*
(c) * * *
(14) * * *
(iv) Lamps as described in § 273.5 of
this chapter; and
(v) Aerosol cans as described in
§ 273.6 of this chapter.
*
*
*
*
*
9. The authority citation for part 268
continues to read as follows:
■
VerDate Sep<11>2014
Purpose, scope, and applicability.
*
■
PART 264—STANDARDS FOR
OWNERS AND OPERATORS OF
HAZARDOUS WASTE TREATMENT,
STORAGE AND DISPOSAL FACILITIES
§ 264.1
§ 265.1
*
*
*
*
(c) * * *
(2) * * *
(viii) * * *
(D) Lamps as described in § 273.5 of
this chapter; and
(E) Aerosol cans as described in
§ 273.6 of this chapter.
*
*
*
*
*
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11665
PART 273—STANDARDS FOR
UNIVERSAL WASTE MANAGEMENT
13. The authority for part 273
continues to read as follows:
■
Authority: 42 U.S.C. 6922, 6923, 6924,
6925, 6930, and 6937.
Subpart A—General
14. Section 273.1 is amended by:
a. Removing the word ‘‘and’’ at the
end of paragraph (a)(3);
■ b. Revising paragraph (a)(4); and
■ c. Adding paragraph (a)(5).
The revision and addition read as
follows:
■
■
§ 273.1
Scope.
(a) * * *
(4) Lamps as described in § 273.5 of
this chapter; and
(5) Aerosol cans as described in
§ 273.6 of this chapter.
*
*
*
*
*
■ 15. Section 273.6 is added to read as
follows:
§ 273.6
Applicability—Aerosol cans.
(a) Aerosol cans covered under this
part 273. The requirements of this part
apply to persons managing aerosol cans,
as described in § 273.9, except those
listed in paragraph (b) of this section.
(b) Aerosol cans not covered under
this part 273. The requirements of this
part do not apply to persons managing
the following aerosol cans:
(1) Aerosol cans that are not yet a
waste under part 261 of this chapter.
Paragraph (c) of this section describes
when an aerosol cans becomes a waste;
(2) Aerosol cans that are not
hazardous waste. An aerosol can is a
hazardous waste if the aerosol can
exhibits one or more of the
characteristics identified in part 261,
subpart C of this chapter or the aerosol
can contains a substance that is listed in
part 261, subpart D of this chapter;
(3) Aerosol cans that meet the
standard for empty containers under
part 261.7 of this chapter, and
(4) Aerosol cans that show evidence
of leakage, spillage, or damage that
could cause leakage under reasonably
foreseeable conditions.
(c) Generation of waste aerosol cans.
(1) A used aerosol can become a waste
on the date it is discarded.
(2) An unused aerosol can become a
waste on the date the handler decides to
discard it.
■ 16. Section 273.9 is amended by:
■ a. Adding the definition of ‘‘Aerosol
can’’ in alphabetical order;
■ b. Revising the definitions of ‘‘Large
quantity handler of universal waste’’
and ‘‘Small quantity handler of
universal waste’’;
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c. In the definition ‘‘Universal waste’’:
i. Republishing the introductory
paragraph;
■ ii. Removing the word ‘‘and’’ at the
end of paragraph (3);
■ iii. Revising paragraph (4), and adding
paragraph (5); and
■ d. Republishing the introductory text
of paragraph (b) and revising paragraph
(b)(1) of the definition of ‘‘Universal
waste handler’’.
The revision and addition read as
follows to read as follows:
■
■
daltland on DSKBBV9HB2PROD with PROPOSALS
§ 273.9
Definitions.
Aerosol can means 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.
*
*
*
*
*
Large Quantity Handler of Universal
Waste means a universal waste handler
(as defined in this section) 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
(as defined in this section) 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.
*
*
*
*
*
Universal Waste means any of the
following hazardous wastes that are
subject to the universal waste
requirements of this part 273:
*
*
*
*
*
(4) Lamps as described in § 273.5; and
(5) Aerosol cans as described in
§ 273.6.
Universal Waste Handler:
*
*
*
*
*
(b) Does not mean:
(1) A person who treats (except under
the provisions of 40 CFR 273.13(a) or
(c), or 40 CFR 273.33(a) or (c)), disposes
of, or recycles (except under the
provisions of 40 CFR 273.13(e) or 40
CFR 273.33(e)) universal waste; or
*
*
*
*
*
Subpart B—Standards for Small
Quantity Handlers of Universal Waste
17. Section 273.13 is amended by
revising paragraphs (c)(2)(iii) and (iv)
■
VerDate Sep<11>2014
16:06 Mar 15, 2018
Jkt 244001
and adding paragraph (e) to read as
follows:
§ 273.13
Waste management.
*
*
*
*
*
(c) * * *
(2) * * *
(iii) Ensures that a mercury clean-up
system is readily available to
immediately transfer any mercury
resulting from spills or leaks from
broken ampules from that containment
device to a container that meets the
requirements of 40 CFR 262.16 or
262.17, as applicable.
(iv) Immediately transfers any
mercury resulting from spills or leaks
from broken ampules from the
containment device to a container that
meets the requirements of 40 CFR
262.16 or 262.17, as applicable.
*
*
*
*
*
(e) Aerosol cans. A small quantity
handler of universal waste must manage
universal waste aerosol cans in a way
that prevents releases of any universal
waste or component of a universal waste
to the environment, as follows:
(1) Universal waste aerosol cans must
be accumulated 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 under
reasonably foreseeable conditions;
(2) A small quantity handler of
universal waste may conduct the
following activities as long as each
individual aerosol can is not breached
and remains intact:
(i) Sorting aerosol cans by type;
(ii) Mixing intact cans in one
container; and
(iii) Removing actuators to reduce the
risk of accidental release.
(3) A small quantity handler of
universal waste who punctures and
drains their aerosol cans must recycle
the empty punctured aerosol cans and
meet the following requirements while
puncturing and draining hazardous
waste aerosol cans:
(i) Conduct puncturing and draining
activities using a device specifically
designed to safely puncture aerosol cans
and effectively contain the residual
contents and any emissions thereof;
(ii) Establish a written procedure
detailing how to safely puncture and
drain universal waste aerosol can
(including proper assembly, operation
and maintenance of the unit; segregation
of incompatible wastes; and proper
waste management practices to prevent
fires or releases), maintain a copy of the
manufacturer’s specification and
instruction onsite, and ensure
employees operating the device are
trained in the proper procedures;
PO 00000
Frm 00019
Fmt 4702
Sfmt 4702
(iii) Ensure that puncturing of the can
is in a manner designed to prevent fires
and to prevent the release of any
component of universal waste to the
environment. This includes, but is not
limited to, locating the equipment on a
solid, flat surface in a well ventilated
area;
(iv) Immediately transfer the contents
from the waste aerosol can, or
puncturing device if applicable, to a
container or tank that meets the
applicable requirements of § 262.14,
262.15, 262.16, or 262.17;
(v) Conduct a hazardous waste
determination on the emptied aerosol
can and its contents per 40 CFR 262.11.
Any hazardous waste generated as a
result of puncturing and draining the
aerosol can is subject to all applicable
requirements of 40 CFR parts 260
through 272. The handler is considered
the generator of the hazardous waste
and is subject to 40 CFR part 262;
(vi) If the contents are determined not
to be hazardous, the handler may
manage the waste in any way that is in
compliance with applicable federal,
state or local solid waste regulations;
and
(vii) A written procedure must be in
place in the event of a spill or release
and a spill clean-up kit must be
provided. All spills or leaks of the
contents of the aerosol cans must be
cleaned up promptly.
■ 18. Section 273.14 is amended by
adding paragraph (f) to read as follows:
§ 273.14
Labeling/marking.
*
*
*
*
*
(f) Universal waste aerosol cans (i.e.,
each aerosol can), or a container in
which the aerosol cans are contained,
must be labeled or marked clearly with
any of the following phrases: ‘‘Universal
Waste—Aerosol Can(s),’’ ‘‘Waste
Aerosol Can(s),’’ or ‘‘Used Aerosol
Can(s)’’.
Subpart C—Standards for Large
Quantity Handlers of Universal Waste
19. Section 273.32 is amended by
revising paragraph (b)(4) to read as
follows:
■
§ 273.32
Notification.
*
*
*
*
*
(b) * * *
(4) A list of all the types of universal
waste managed by the handler (e.g.,
batteries, pesticides, mercury-containing
equipment, lamps, and aerosol cans);
and
* * *
*
*
*
*
*
■ 20. Section 273.33 is amended by
revising paragraphs (c)(2)(iii) and (iv)
E:\FR\FM\16MRP1.SGM
16MRP1
Federal Register / Vol. 83, No. 52 / Friday, March 16, 2018 / Proposed Rules
and adding paragraph (e) to read as
follows:
§ 273.33
Waste management.
daltland on DSKBBV9HB2PROD with PROPOSALS
*
*
*
*
*
(c) * * *
(2) * * *
(iii) Ensures that a mercury clean-up
system is readily available to
immediately transfer any mercury
resulting from spills or leaks of broken
ampules from that containment device
to a container that meets the
requirements of 40 CFR 262.16 or
262.17, as applicable.
(iv) Immediately transfers any
mercury resulting from spills or leaks
from broken ampules from the
containment device to a container that
meets the requirements of 40 CFR
262.16 or 262.17, as applicable.
*
*
*
*
*
(e) Aerosol cans. A large quantity
handler of universal waste must manage
universal waste aerosol cans in a way
that prevents releases of any universal
waste or component of a universal waste
to the environment, as follows:
(1) Universal waste aerosol cans must
be accumulated 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 under
reasonably foreseeable conditions;
(2) A large quantity handler of
universal waste may conduct the
following activities as long as each
individual aerosol can is not breached
and remains intact:
(i) Sorting aerosol cans by type; and
(ii) Mixing intact cans in one
container; and (iii) Removing actuators
to reduce the risk of accidental release;
(3) A large quantity handler of
universal waste who punctures and
drains their aerosol cans must recycle
the empty punctured aerosol cans and
meet the following requirements while
puncturing and draining hazardous
waste aerosol cans:
(i) Conduct puncturing and draining
activities using a device specifically
designed to safely puncture aerosol cans
and effectively contain the residual
contents and any emissions thereof;
(ii) Establish a written procedure
detailing how to safely puncture and
drain universal waste aerosol can
(including proper assembly, operation
and maintenance of the unit; segregation
of incompatible wastes; and proper
waste management practices to prevent
fires or releases), maintain a copy of the
manufacturer’s specification and
instruction onsite, and ensure
employees operating the device are
trained in the proper procedures;
VerDate Sep<11>2014
16:06 Mar 15, 2018
Jkt 244001
(iii) Ensure that puncturing of the can
is in a manner designed to prevent fires
and to prevent the release of any
component of universal waste to the
environment. This includes, but is not
limited to, locating the equipment on a
solid, flat surface in a well ventilated
area;
(iv) Immediately transfer the contents
from the waste aerosol can, or
puncturing device if applicable, to a
container or tank that meets the
applicable requirements of § 262.14, 15,
16, or 17;
(v) Conduct a hazardous waste
determination on the emptied aerosol
can and its contents per 40 CFR 262.11.
Any hazardous waste generated as a
result of puncturing and draining the
aerosol can is subject to all applicable
requirements of 40 CFR parts 260
through 272. The handler is considered
the generator of the hazardous waste
and is subject to 40 CFR part 262;
(vi) If the contents are determined not
to be hazardous, the handler may
manage the waste in any way that is in
compliance with applicable federal,
state or local solid waste regulations;
and
(vii) A written procedure must be in
place in the event of a spill or release
and a spill clean-up kit must be
provided. All spills or leaks of the
contents of the aerosol cans must be
cleaned up promptly.
■ 21. Section 273.34 is amended by
adding paragraph (f) to read as follows:
§ 273.34
Labeling/marking.
*
*
*
*
*
(f) Universal waste aerosol cans (i.e.,
each aerosol can), or a container in
which the aerosol cans are contained,
must be labeled or marked clearly with
any of the following phrases: ‘‘Universal
Waste—Aerosol Can(s)’’, ‘‘Waste
Aerosol Can(s)’’, or ‘‘Used Aerosol
Can(s)’’.
[FR Doc. 2018–05282 Filed 3–15–18; 8:45 am]
BILLING CODE 6560–50–P
PO 00000
11667
DEPARTMENT OF HOMELAND
SECURITY
Transportation Security Administration
49 CFR Parts 1515, 1520, 1522, 1540,
1542, 1544, and 1550
[Docket No. TSA–2008–0021]
RIN 1652–AA53
Large Aircraft Security Program, Other
Aircraft Operator Security Program,
and Airport Operator Security
Program; Withdrawal
Transportation Security
Administration, DHS.
ACTION: Notice of proposed rulemaking;
withdrawal.
AGENCY:
The Transportation Security
Administration (TSA) is withdrawing its
rulemaking concerning the proposed
establishment of a large aircraft security
program (LASP). TSA published a
notice of proposed rulemaking (NPRM)
for LASP on October 30, 2008. In the
NPRM, TSA proposed that certain
private and corporate aircraft operations
should adopt security standards similar
to those of commercial aircraft
operations, including the use of security
programs, crew vetting, and passenger
watchlist matching. The NPRM also
proposed new requirements for airports
that serve the private and corporate
operations. TSA held a series of public
meetings and reviewed more than 7,000
public comments submitted in response
to the NPRM. Based on all of the
information received and a reevaluation of the proposal in light of
risk-based principles, TSA has decided
not to pursue this rulemaking at this
time.
SUMMARY:
TSA is withdrawing the
proposed rule published in Part III of
the Federal Register on October 30,
2008 (73 FR 64789) as of March 16,
2018.
DATES:
FOR FURTHER INFORMATION CONTACT:
Alan Paterno, Office of Security Policy
and Engagement, TSA–28,
Transportation Security Administration,
601 South 12th Street, Arlington, VA
20598–6028; telephone (571) 227–5698;
facsimile (571) 227–2928; email
alan.paterno@tsa.dhs.gov.
SUPPLEMENTARY INFORMATION:
I. Overview of the NPRM
TSA administers an extensive range of
regulatory programs that address
security for scheduled and charter
commercial aviation operations. See 49
CFR parts 1544, 1546, 1548, 1550, 1560,
and 1562. In the LASP NPRM, TSA
Frm 00020
Fmt 4702
Sfmt 4702
E:\FR\FM\16MRP1.SGM
16MRP1
]]>Agencies
[Federal Register Volume 83, Number 52 (Friday, March 16, 2018)]
[Proposed Rules]
[Pages 11654-11667]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2018-05282]
-----------------------------------------------------------------------
ENVIRONMENTAL PROTECTION AGENCY
40 CFR Parts 260, 261, 264, 265, 268, 270, and 273
[EPA-HQ-OLEM-2017-0463; FRL-9975-44-OLEM]
RIN 2050-AG92
Increasing Recycling: Adding Aerosol Cans to the Universal Waste
Regulations
AGENCY: Environmental Protection Agency (EPA).
ACTION: Proposed rule.
-----------------------------------------------------------------------
SUMMARY: The Environmental Protection Agency (EPA or the Agency) is
proposing to add hazardous waste aerosol cans to the universal waste
program under the federal Resource Conservation and Recovery Act (RCRA)
regulations. This proposed change, once finalized, would benefit the
wide variety of establishments generating and managing hazardous waste
aerosol cans, including the retail sector, by providing a clear,
protective system for managing discarded aerosol cans. The streamlined
universal waste regulations are expected to ease regulatory burdens on
retail stores and others that discard hazardous waste aerosol cans;
promote the collection and recycling of these cans; and encourage the
development of municipal and commercial programs to reduce the quantity
of these wastes going to municipal solid waste landfills or combustors.
DATES: Comments must be received on or before May 15, 2018. Under the
Paperwork Reduction Act (PRA), comments on the information collection
provisions are best assured of consideration if the Office of
Management and Budget (OMB) receives a copy of your comments on or
before April 16, 2018.
ADDRESSES: Submit your comments, identified by Docket ID No. EPA-HQ-
[[Page 11655]]
OLEM-2017-0463, at https://www.regulations.gov. Follow the online
instructions for submitting comments. Once submitted, comments cannot
be edited or removed from Regulations.gov. The EPA may publish any
comment received to its public docket. Do not submit electronically any
information you consider to be Confidential Business Information (CBI)
or other information whose disclosure is restricted by statute.
Multimedia submissions (audio, video, etc.) must be accompanied by a
written comment. The written comment is considered the official comment
and should include discussion of all points you wish to make. The EPA
will generally not consider comments or comment contents located
outside of the primary submission (i.e., on the web, cloud, or other
file sharing system). For additional submission methods, the full EPA
public comment policy, information about CBI or multimedia submissions,
and general guidance on making effective comments, please visit https://www2.epa.gov/dockets/commenting-epa-dockets.
FOR FURTHER INFORMATION CONTACT: Tracy Atagi, Office of Land and
Emergency Management (5304P), Environmental Protection Agency, 1200
Pennsylvania Avenue NW, Washington, DC 20460; telephone number: 703-
308-8672; email address: [email protected], or Tiffany Kollar, Office
of Land and Emergency Management (5304P), Environmental Protection
Agency, 1200 Pennsylvania Avenue NW, Washington, DC 20460; telephone
number: 703-308-8675; email address: [email protected].
SUPPLEMENTARY INFORMATION:
I. General Information
A. Does this action apply to me?
This proposed rulemaking would affect persons who generate,
transport, treat, recycle, or dispose of hazardous waste aerosol cans,
herein referred to as aerosol cans, unless those persons are households
or very small quantity generators (VSQGs). Entities potentially
affected by this action include over 18,000 industrial facilities in 18
different industries (at the 2-digit North American Industry
Classification System (NAICS) code level). Most of these industries
have relatively few entities that are potentially affected. The two top
economic sectors (at the 2-digit NAICS code level) with the largest
percentage of potentially affected entities are the retail trade
industry (NAICS code 44-45), representing 65% of the affected Large
Quantity Generator universe, and Manufacturing (NAICS code 31-33),
representing 20% of the affected Large Quantity Generator universe.
Potentially affected categories and entities include, but are not
necessarily limited to:
----------------------------------------------------------------------------------------------------------------
Total affected
2 Digit NAICS code Primary NAICS description large quantity Generated tons
generators
----------------------------------------------------------------------------------------------------------------
44-45............................... Retail Trade........................ 4,225 395.8
31-33............................... Manufacturing....................... 1,327 6,767.2
48-49............................... Transportation and Warehousing...... 138 1,214.9
62.................................. Health Care and Social Assistance... 179 29.5
92.................................. Public Administration............... 116 186.8
61.................................. Educational Services................ 126 18.0
54.................................. Professional, Scientific, and 81 63.6
Technical Services.
56.................................. Administrative and Support and Waste 112 2,655.2
Management and Remediation Services.
42.................................. Wholesale Trade..................... 73 130.0
22.................................. Utilities........................... 32 6.8
81.................................. Other Services (except Public 65 4.2
Administration).
21.................................. Mining, Quarrying, and Oil and Gas 28 10.3
Extraction.
23.................................. Construction........................ 4 24.1
71.................................. Arts, Entertainment, and Recreation. 3 3.2
55.................................. Management of Companies and 6 0.6
Enterprises.
53.................................. Real Estate and Rental and Leasing.. 3 0.6
51.................................. Information......................... 1 0.5
11.................................. Agriculture, Forestry, Fishing and 1 0.0
Hunting.
-------------------------------------
Total........................... .................................... 6,520 11,511.3
----------------------------------------------------------------------------------------------------------------
This table is not intended to be exhaustive, but rather provides a
guide for readers regarding entities likely to be regulated by this
action. This table lists the types of entities that EPA is now aware
could potentially be regulated by this action. Other entities not
listed in the table could also be regulated. To determine whether your
entity is regulated by this action, you should carefully examine the
applicability criteria found in Section IV of this action. If you have
questions regarding the applicability of this action to a particular
entity, consult the person listed in the FOR FURTHER INFORMATION
CONTACT section.
B. What action is the agency taking?
The Environmental Protection Agency (EPA) is proposing to add
hazardous waste aerosol cans to the list of universal wastes regulated
under the Resource Conservation and Recovery Act (RCRA) regulations.
This proposed change, once finalized, would benefit the wide variety of
establishments generating and managing aerosol cans, including the
retail sector, by providing a clear, practical system for handling
discarded aerosol cans.
C. What is the agency's authority for taking this action?
These regulations are proposed under the authority of sections
2002(a), 3001, 3002, 3004, and 3006 of the Solid Waste Disposal Act, as
amended by the Resource Conservation and Recovery Act (RCRA), and as
amended by the Hazardous and Solid Waste Amendments (HSWA), 42 U.S.C.
6921(a), 6921, 6922, 6924, and 6926.
D. What are the incremental costs and benefits of this action?
This proposed action, if finalized as proposed, is expected to
result in an annual cost savings of $3.0 million to $63.3 million.
Information on the estimated future economic impacts of this action is
presented in Section VII of this notice, as well as in the Regulatory
Impact Analysis (RIA) available in the docket for this proposed action.
Note
[[Page 11656]]
that the expected cost savings is based on the assumption that all
eligible states would adopt regulatory changes, once they are
finalized. EPA requests comment on this assumption.
In addition to cost savings, EPA's analysis shows qualitative
benefits to adding aerosol cans to the universal waste program,
including improved implementation of and compliance with the hazardous
waste program and increased recovery and recycling of aerosol cans.
II. Background
A. Description of Aerosol Cans
Aerosol cans are widely used for dispensing a broad range of
products including paints, solvents, pesticides, food and personal care
products, and many others. The Consumer Specialty Products Association
(CSPA) estimates that 3.82 billion aerosol cans were filled in the
United States in 2015 for use by commercial and industrial facilities
as well as by households.\1\
---------------------------------------------------------------------------
\1\ Consumer Specialty Product Association, What's New, Industry
Updates and Association Highlights, June 2016. https://www.cspa.org/aerosol-products-industry-growing-steadily-survey-reveals-north-american-production-reaches-historic-high/, retrieved November 8,
2017.
---------------------------------------------------------------------------
A typical aerosol can consists of several components, including
(but not limited to): (1) The can or container storing both propellant
and the product; (2) an actuator or button at the top of the can that
is pressed to deliver the product; (3) a valve which controls delivery
or flow of the product; (4) the propellant (a compressed gas or
liquefied gas), which provides the pressure in the container to expel
or release the product when the actuator is pressed to open the valve;
(5) the product itself; and (6) a dip tube which is connected to the
valve to bring the product up through the can to be released when the
actuator is pressed.\2\
---------------------------------------------------------------------------
\2\ National Aerosol Association, History of the Aerosol, https://www.nationalaerosol.com/history-of-the-aerosol/, retrieved December
11, 2017.
---------------------------------------------------------------------------
The can itself is typically a small steel or aluminum container,
designed to be hand-held, which is sealed with its contents under
pressure. The can's design is intended to prevent unwanted releases of
the contents to the environment under normal handling and storage
conditions. However, when aerosol cans are mismanaged, particularly
when exposed to excessive heat, the resulting increase in internal
pressure can reach a point beyond the design strength of the can,
thereby causing it to burst and release its contents. At the point of
bursting, the contents of the can have been heated to a temperature and
pressure far above ambient environmental conditions, causing the
contents to rapidly vaporize and be forcefully released. One or more of
the following may occur when a can bursts as a result of over-heating:
(1) If the propellant or product are ignitable, the contents of the can
may readily catch fire as they are released and exposed to atmospheric
oxygen, creating a rapidly burning vapor ``fireball''; (2) the bottom
of the can may detach as a result of a manufacturing defect or an
external force, causing the upper part of the can to become a
projectile; or (3) the can may fragment as it bursts, releasing metal
shards.
Aerosol cans frequently contain flammable propellants such as
propane or butane which can cause the aerosol can to demonstrate the
hazardous characteristic for ignitability (40 CFR 261.21).\3\ In
addition, the aerosol can may also be a hazardous waste for other
reasons when discarded. More specifically, an aerosol can may contain
materials that exhibit hazardous characteristics per 40 CFR part 261
subpart C. Similarly, a discarded aerosol can may also be a P or U-
listed hazardous waste if it contains a commercial chemical product
found at 40 CFR 261.33(e) or (f).
---------------------------------------------------------------------------
\3\ University of Vermont, Paint and Aerosol Safety, https://www.uvm.edu/safety/art/paint-aerosol-safety, retrieved December 11,
2017.
---------------------------------------------------------------------------
B. Current Federal Regulation of Aerosol Cans
1. Regulation of Aerosol Cans Under the Resource Conservation and
Recovery Act (RCRA)
Any person who generates a solid waste, as defined in 40 CFR 261.2,
must determine whether the solid waste qualifies as hazardous waste.
The waste may be hazardous either because it is listed as a hazardous
waste in subpart D of 40 CFR part 261 or because it exhibits one or
more of the characteristics of hazardous waste, as provided in subpart
C of 40 CFR part 261. As discussed above, aerosol cans are frequently
hazardous due to the ignitability characteristic, and in some cases may
also contain listed or exhibit other hazardous waste
characteristics.\4\
---------------------------------------------------------------------------
\4\ Aerosol cans that have not been discarded are not solid or
hazardous wastes.
---------------------------------------------------------------------------
Many, but not all, generators of aerosol cans identified or listed
as a hazardous waste are subject to the full RCRA subtitle C hazardous
waste management requirements, including all applicable requirements of
40 CFR parts 260 through 268. Depending on their activities, some
generators have only to meet the requirements of part 262, including
on-site management, pre-transport, and manifesting. Under 40 CFR
262.14, very small quantity generators (VSQGs), defined as facilities
that generate less than or equal to 100 kilograms of hazardous waste in
a calendar month, are not subject to the RCRA subtitle C hazardous
waste management standards, provided they send their waste to a
municipal solid waste landfill or non-municipal nonhazardous waste
facility approved by the state for the management of VSQG wastes and
meet other conditions. In addition, households that generate waste
aerosol cans are exempt from the federal hazardous waste management
requirements under the household hazardous waste exemption in 40 CFR
261.4(b)(1).\5\
---------------------------------------------------------------------------
\5\ Under 40 CFR 261.4(b)(1), ``household waste'' means any
material (including garbage, trash and sanitary wastes in septic
tanks) derived from households (including single and multiple
residences, hotels and motels, bunkhouses, ranger stations, crew
quarters, campgrounds, picnic grounds and day-use recreation areas).
---------------------------------------------------------------------------
Facilities that treat, store, and/or dispose of hazardous waste
aerosol cans are subject to the requirements of 40 CFR part 264 (for
permitted facilities), or the requirements of 40 CFR part 265 (for
interim status facilities). However, when hazardous waste aerosol cans
are recycled, the recycling process itself is not subject to
regulation, except as indicated in 40 CFR 261.6(d). EPA has interpreted
the current hazardous waste regulations to mean that puncturing and
draining an aerosol can, if performed for the purpose of recycling
(e.g., for scrap metal recycling), is considered part of the recycling
process and is exempt from RCRA permitting requirements under 40 CFR
261.6(c).\6\ However, facilities receiving hazardous waste aerosol cans
from off-site would require a RCRA permit for storage prior to the
recycling activity, and the recycling process would be subject to
subparts AA and BB of 40 CFR part 264, 265, or 267.
---------------------------------------------------------------------------
\6\ EPA first explained this interpretation in 1993. See U.S.
EPA 1993 Regulatory Status of Used Residential And Commercial/
Industrial Aerosol Cans, Memo from Jeff Denit, Acting Director,
Office of Solid Waste to John DiFazio, Chemical Specialties
Manufacturers Association, October 7, 1993. RO #11780.
---------------------------------------------------------------------------
2. Regulation Under the Federal Insecticide, Fungicide, and Rodenticide
Act (FIFRA)
Hazardous waste aerosol cans that contain pesticides are also
subject to the requirements of Federal Insecticide, Fungicide, and
Rodenticide Act (FIFRA), including compliance with the instructions on
the label. In general, the statement on aerosol pesticide product FIFRA
labels prohibits the puncturing of the cans. However, in April 2004,
EPA
[[Page 11657]]
issued a determination \7\ that puncturing aerosol pesticide containers
is consistent with the purposes of FIFRA and is therefore lawful
pursuant to FIFRA section 2(ee)(6) provided that the following
conditions are met:
---------------------------------------------------------------------------
\7\ 2004 U.S. EPA Puncturing of Aerosol Pesticide Products Under
FIFRA for the Purpose of Recycling, Letter from Lois Rossi and
William Diamond, Office of Pollution Prevention and Toxic
Substances, U.S. EPA, to John A. Wildie, Randolph Air Force Base,
April 30, 2004, available in the docket for this rule.
---------------------------------------------------------------------------
The puncturing of the container is performed by a person
who, as a general part of his or her profession, performs recycling
and/or disposal activities;
The puncturing is conducted using a device specifically
designed to safely puncture aerosol cans and effectively contain the
residual contents and any emissions thereof; and
The puncturing, waste collection, and disposal, are
conducted in compliance with all applicable federal, state and local
waste (solid and hazardous waste) and occupational safety and health
laws and regulations.
EPA anticipates that this 2004 FIFRA determination would not be
affected by the proposed addition of hazardous waste aerosol cans to
the universal waste rules.
C. Retail Strategy and Aerosol Cans
The retail sector as a whole handles a very large number of diverse
products, which change over time and may, in many instances, become
regulated as hazardous waste under RCRA when discarded. As a result,
retailers are required to make hazardous waste determinations for a
variety of products being discarded at stores located across the
country.
In 2014, EPA published a Notice of Data Availability (NODA) for the
Retail Sector as part of the Agency's continuing efforts to better
understand concerns from all stakeholders regarding RCRA's
applicability to the retail sector, as well as to obtain information
and feedback on issues affecting the retail sector. (79 FR 8926,
February 14, 2014) In the NODA, EPA requested comment on a series of
topics related to retail operations, waste management practices and
management of materials that may become hazardous waste when discarded.
This specifically included requests for information regarding aerosol
cans (e.g., quantity generated, classification and management options,
including handling as universal waste), since aerosol cans comprise a
large percentage of the retail sector's hazardous waste stream.
Approximately 35% of NODA commenters specifically suggested that
discarded aerosol cans be managed as universal waste.
In response to comments on the Retail Sector NODA, the Agency
published the Strategy for Addressing the Retail Sector under RCRA's
Regulatory Framework, which lays out a cohesive plan to address the
unique challenges faced by the retail sector in complying with RCRA
regulations while reducing burden and protecting human health and the
environment.\8\ One of the action items under the Retail Strategy is to
explore adding hazardous waste aerosol cans to the universal waste
rule.
---------------------------------------------------------------------------
\8\ EPA 2016. Strategy for Addressing the Retail Sector under
RCRA's Regulatory Framework. September 12, 2016. https://www.epa.gov/hwgenerators/strategy-addressing-retail-sector-under-resource-conservation-and-recovery-acts, retrieved on January 24,
2018.
---------------------------------------------------------------------------
D. Universal Waste Rule
In 1995, EPA promulgated the universal waste rule (60 FR 25492, May
11, 1995) to establish 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. Hazardous waste batteries, certain hazardous waste
pesticides, mercury-containing equipment, and hazardous waste lamps are
already included on the federal list of universal wastes. The universal
waste regulations in 40 CFR part 273 are a set of alternative hazardous
waste management standards that operate in lieu of regulation under 40
CFR parts 260 through 272 for specified hazardous wastes.
Handlers and transporters who generate or manage items designated
as a universal waste are subject to the management standards under 40
CFR part 273, rather than the full RCRA subtitle C regulations.
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
destination. Handlers do not include facilities that treat, dispose of,
or recycle universal waste except as provided in the universal waste
regulations. The regulations distinguish between ``large quantity
handlers of universal waste'' (those who handle more than 5,000
kilograms of total universal waste at one time) and ``small quantity
handlers of universal waste'' (those who handle 5,000 kilograms or less
of universal waste at one time). The 5,000-kilogram accumulation
criterion applies to the quantity of all universal wastes accumulated.
The streamlined standards include requirements for storage, labeling
and marking, preparing the waste for shipment off site, employee
training, response to releases, and, in the case of large quantity
handlers, notification and tracking of universal waste shipments.
Transporters of universal waste are also subject to less stringent
requirements than the full subtitle C hazardous waste transportation
regulations. The primary difference between the universal waste
transporter requirements and the subtitle C transportation requirements
is that no manifest is required for transport of universal waste.
Under the universal waste rule, destination facilities are those
facilities that treat, store, dispose, or recycle universal wastes.
Universal waste destination facilities are subject to all currently
applicable requirements for hazardous waste treatment, storage, and
disposal facilities (TSDFs) and must receive a RCRA permit for such
activities. Destination facilities that recycle universal waste and
that do not store that universal waste prior to recycling in accordance
with 40 CFR 261.6(c)(2) may be exempt from permitting under the federal
regulations (see 40 CFR 273.60(b)). Finally, some states are authorized
to add wastes that are not federal universal wastes to their lists of
universal wastes. Therefore, in some states, aerosol cans are already
regulated as a universal waste.
E. State Universal Waste Programs That Include Aerosol Cans
Four states, California, Colorado, Utah and New Mexico, already
have universal waste aerosol can programs in place, and two more
states, Ohio and Minnesota, have proposed to add aerosol cans to their
universal waste regulations.\9\ The universal waste programs in all
these states include streamlined management standards similar to 40 CFR
part 273 for small and large quantity handlers of universal waste, and
a one-year accumulation time limit for the aerosol cans. In addition,
the four current state universal waste programs, as well as Ohio's
proposed regulations, set standards for puncturing and draining of
aerosol cans by universal waste handlers.
---------------------------------------------------------------------------
\9\ EPA 2017. Summary of State Programs Addressing Aerosol Cans
Under RCRA Hazardous Waste Regulations or Under State Universal
Waste Programs.
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The aerosol can universal waste programs of California, Colorado,
Utah and New Mexico, as well as Ohio's proposed aerosol can universal
waste program, allow for puncturing and draining of aerosol cans by
universal
[[Page 11658]]
waste handlers, as long as specific management standards and waste
characterization requirements are met. In addition, California does not
allow off-site commercial processors \10\ to puncture and drain aerosol
cans without a permit, and requires those handlers that do puncture and
drain cans to submit a notification. Minnesota's proposed rule would
not allow handlers to puncture and drain their aerosol cans.
---------------------------------------------------------------------------
\10\ According to California's guidance for their regulations, a
``commercial processor'' is any person that processes aerosol cans
in exchange for compensation. Some examples include: Individuals
from another generator's site, registered hazardous waste
transporters, operators of hazardous waste treatment, storage and/or
disposal facilities, and operators of transportable treatment units.
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III. Rationale for Proposing Aerosol Cans Be Managed Under the
Universal Waste Rule
A. Factors for Inclusion in the Universal Waste Rule
EPA is proposing to add aerosol cans to the universal waste rule,
because the Agency believes that this waste meets the factors that
describe hazardous waste that is appropriate for management under the
streamlined universal waste system. Adding aerosol cans to the
universal waste rule simplifies handling and disposal of the wastes for
generators, while ensuring that aerosol cans are sent to the
appropriate destination facilities, where they will be managed as a
hazardous waste with all applicable subtitle C requirements. Management
as universal waste under the proposed requirements is also expected to
facilitate environmentally sound recycling of the metal used to make
the cans. The universal waste regulations include eight factors to
consider in evaluating whether a waste is appropriate for inclusion in
the universal waste rule. These factors, codified at 40 CFR 273.81, are
to be used to determine whether regulating a particular hazardous waste
under the streamlined standards would improve overall management of the
waste and, therefore, whether the waste is a good candidate for the
universal waste rule. As the Agency noted in the preamble to the final
universal waste rule (60 FR 25513), not every factor must be met for a
waste to be appropriately regulated under the universal waste system.
However, consideration of all the factors should result in a conclusion
that regulating a particular hazardous waste under 40 CFR part 273 will
improve waste management. EPA has examined information on aerosol cans,
including information submitted in the public comments on the 2014
Retail NODA,\11\ using the criteria in 40 CFR 273.81. In light of its
evaluation of this information, the Agency is proposing that on
balance, these wastes are appropriate for inclusion onto the federal
list of universal wastes for management under part 273. EPA believes
that adding aerosol cans to the universal waste rule would make
collection and transportation of this waste to an appropriate facility
easier and, therefore, will help facilitate recycling and reduce the
amount of aerosol cans disposed of in municipal landfills. A summary of
how the criteria in 40 CFR 273.81 apply to aerosol cans is described
below. EPA solicits comment on this analysis.
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\11\ Public comments on the 2014 Retail NODA can be found in
docket number EPA-HQ-RCRA-2012-0426 on regulations.gov.
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1. The Waste, as Generated by a Wide Variety of Generators, Should Be a
Listed or Characteristic Hazardous Waste (40 CFR 273.81(a))
As discussed in Section III, aerosol cans frequently demonstrate
the hazardous characteristic for ignitability (40 CFR 261.21) due to
the nature of the propellant used. In addition, the contents
(propellant or product) may also cause the can to be a hazardous waste
for other reasons if discarded.
2. The Waste, or Category of Waste, Should Not Be Exclusive to a
Particular Industry or Group of Industries, But Generated by a Wide
Variety of Establishments (40 CFR 273.81(b))
EPA has documented in the Regulatory Impact Analysis (RIA)
developed for this proposal, that large and small quantity generators
that manage hazardous waste aerosol cans can be found in 18 different
industries (at the 2-digit North American Industry Classification
System (NAICS) code level). Thus, aerosol cans are commonly generated
by a wide variety of types of establishments, including households,
retail and commercial businesses, office complexes, very small quantity
generators, small businesses, government organizations, as well as
large industrial facilities.
3. The Waste Should Be Generated by a Large Number of Generators and
Frequently Generated in Relatively Small Quantities (40 CFR 273.81(c))
As documented in the RIA, more than 18,000 large and small quantity
generators manage hazardous waste aerosol cans. Quantities generated
vary depending on the type of generator and the situations associated
with generation. For example, a retail store may determine that large
quantities of aerosol cans, which can no longer be sold or donated,
must be discarded as hazardous waste. On the other hand, entities that
use aerosol cans in their day-to-day operations may generate small
quantities of partially-used hazardous waste aerosol cans on a sporadic
basis. Data from the RIA demonstrate that in 2015, large quantity
generators that generated hazardous waste aerosol cans generated an
average of 1.8 tons per year (approximately 4,100 cans), while small
quantity generators generated an average of 0.5 tons per year
(approximately 1,100 cans). The median amounts are 0.12 tons
(approximately 274 cans) and 0.04 tons (approximately 85 cans) for
large quantity generators and small quantity generators respectively,
per year.
4. Systems To Be Used for Collecting the Waste (Including Packaging,
Marking, and Labeling Practices) Should Ensure Close Stewardship of the
Waste (40 CFR 273.81(d))
The baseline universal waste requirements of notification,
labeling, training, response to releases found in 40 CFR part 273
subparts B and C and the proposed specific requirements for management
of aerosol cans in 40 CFR 273.13 and 40 CFR 273.33 as discussed Section
IV below are designed to ensure close stewardship of the hazardous
waste aerosol cans.
5. Risks Posed by the Waste During Accumulation and Transport Should Be
Relatively Low Compared to the Risks Posed by Other Hazardous Waste,
and Specific Management Standards Would Be Protective of Human Health
and the Environment During Accumulation and Transport (40 CFR
273.81(e))
Aerosol cans are designed to contain the products they hold during
the periods of storage and transportation as they move from the
manufacturer, to the retailer, and ultimately to the final customer. As
long as they remain intact, therefore, EPA expects that hazardous waste
aerosol cans would present a lower risk as compared to other types of
hazardous waste that are not contained as-generated under normal
management conditions. In addition, the ignitability risk posed during
accumulation and transport is addressed by standards set by the
Department of Transportation, Office of Safety and Health
Administration, and local fire codes.\12\
[[Page 11659]]
These standards include requirements for outer packaging and can
design, including limits on the amount of flammable gas and general
pressure conditions.
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\12\ For example, DOT--49 CFR 173.306 for Shipping of Limited
Quantities, Aerosol Cans and 49 CFR 173.115 for Flammable Gas,
OSHA--29 CFR 1910.106(d)(6), Flammable Liquids, 2015 NFPA--Chapter
30, Flammable and Combustible Liquids Code, and Chapter 30B, Code
for the Manufacture and Storage of Aerosol Products.
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Finally, as discussed below, the proposed management standards for
aerosol cans that are punctured and drained at the handler would
address the ignitability risk, and help prevent releases, and thus EPA
believes that the risks posed by the activities proposed are addressed
by the universal waste designation.
6. Regulation of the Waste Under 40 CFR Part 273 Will Increase the
Likelihood That the Waste Will Be Diverted From Non-Hazardous Waste
Management Systems (e.g., the Municipal Solid Waste Stream) to
Recycling, Treatment, or Disposal in Compliance With Subtitle C of RCRA
(40 CFR 273.81(f))
Managing hazardous waste aerosol cans under the universal waste
program is expected to increase the number of these items collected,
and to increase the number of aerosol cans being diverted from the non-
hazardous waste stream into the hazardous waste stream because it would
allow generators, especially those that generate this waste
sporadically, to send it to a central consolidation point. Under the
universal waste rule, a handler of universal waste can send the
universal waste to another handler, where it can be consolidated into a
larger shipment for transport to a destination facility. Therefore,
under the proposed rule it would be more economical to send hazardous
waste aerosol cans to recycling for recovery of metal values. EPA thus
expects such management to not only advance the RCRA goal of increased
resource conservation, but also to increase proper disposal as
hazardous waste, making it less likely that it will be sent for
improper disposal in municipal landfills or municipal incinerators. In
addition, because of the streamlined structure of the universal waste
rule makes aerosol can collection programs more economical, hazardous
waste aerosol cans that might otherwise be sent to a municipal landfill
under a VSQG or household hazardous waste exemption, would be more
easily collected and consolidated for hazardous waste disposal by those
who are interested in managing it this way. This waste would be
diverted from the municipal solid waste stream to universal waste
management.
7. Regulation of the Waste Under 40 CFR Part 273 Will Improve the
Implementation and Compliance With the Hazardous Waste Regulatory
Program (40 CFR 273.81(g))
The structure and requirements of the universal waste rule are well
suited to the circumstances of handlers of hazardous waste aerosol cans
and their participation in the universal waste program will improve
compliance with the hazardous waste regulations. In particular,
handlers of hazardous waste aerosol cans who are infrequent generators
of hazardous waste and who might otherwise be unfamiliar with the more
complex subtitle C management structure, but who generate hazardous
waste aerosol cans will be able to more easily send this waste for
proper management. Therefore, adding aerosol cans to the universal
waste rule would offer a protective hazardous waste management system
that is likely to be more accessible, particularly for the retail
sector, which can pose unique compliance challenges as compared to
manufacturing and other ``traditional'' RCRA-regulated sectors.\13\
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\13\ EPA 2016. Strategy for Addressing the Retail Sector under
RCRA's Regulatory Framework. September 12, 2016. https://www.epa.gov/hwgenerators/strategy-addressing-retail-sector-under-resource-conservation-and-recovery-acts.
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8. Additional Factor (40 CFR 273.81(h)): States' Experience Under
Existing State Universal Waste Programs Indicates That Regulation Under
40 CFR Part 273 Will Improve Management of Aerosol Cans
As discussed above, the factors included in 40 CFR 273.81 are
designed to determine whether regulating a particular hazardous waste
under the streamlined standards of the universal waste rules would
improve the overall management of the waste. Because in this case, as
at least four states have added aerosol cans to their universal waste
programs, those states' experiences with management of aerosol cans
under their respective universal waste programs provides a useful
source of information to inform EPA's judgment on whether to propose
adding aerosol cans to the national universal waste program.
Information supplied to EPA from those states' officials indicates
that their programs improve the implementation of the hazardous waste
program. Specifically, State waste management officials have
represented to EPA that these programs have been operating well and
achieving their objective of facilitating safe management of hazardous
waste aerosol cans.\14\ In particular, state officials from both
California and Colorado stated to EPA that their respective aerosol can
universal waste programs have been in effect since 2002, and they have
not identified any problems with compliance with the standards.
Accordingly, this information also weighs in favor of concluding that
management of aerosol cans under the federal universal waste
regulations is likely to be successful.
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\14\ EPA 2017. Summary of State Programs Addressing Aerosol Cans
Under RCRA Hazardous Waste Regulations or Under State Universal
Waste Programs. December 2017.
---------------------------------------------------------------------------
B. Expected Changes in Management of Aerosol Cans
If EPA's proposal to include aerosol cans in the list of Universal
Waste is finalized as proposed, EPA expects that the number of aerosol
cans that are diverted from municipal solid waste landfills and
incinerators to recycling or disposal in subtitle C facilities would
increase. Small and large quantity generators are already required to
manage their hazardous waste aerosol cans under RCRA subtitle C. As a
result of implementation of this rule in the states, some of these
generators would likely begin managing their aerosol cans as a
universal waste, either to save money or to improve implementation of
their existing waste management program. One of the streamlined
provisions of the universal waste rule allows consolidation of aerosol
cans at central locations, which makes it easier for smaller users to
arrange for hazardous waste recycling or disposal of these materials
when they are generated. EPA intends to encourage individual households
and VSQGs to participate in such programs, which would divert aerosol
cans from the municipal waste stream.
In summary, EPA believes that management of hazardous waste aerosol
cans can best be implemented through a universal waste approach where
handlers are operating within a simple, streamlined management system
with some limited oversight. The universal waste program addresses the
environmental concerns surrounding the management of such wastes, while
at the same time putting into place a structure that will allow for and
encourage increased collection of aerosol cans for recycling.
IV. Discussion of Proposed Rule
A. Waste Covered by Proposed Rule
EPA is proposing that an ``aerosol can'' be defined as an intact
container
[[Page 11660]]
in which gas under pressure is used to aerate and dispense any material
through a valve in the form of a spray or foam. This definition is the
same as the definition of aerosol can in the California, Colorado, New
Mexico and Utah universal waste programs, with the exception of a size
limit in Utah's definition of aerosol can, as described below. EPA is
proposing to adopt this definition of aerosol can to keep consistency
with the existing state programs.
EPA also intends this definition to be limited to sealed containers
whose intended use is to dispense a material by means of a propellant
or compressed gas. Aerosol cans are designed to contain those materials
until they are intended for release and to present minimal risk during
normal storage and transport. Other types of containers, including
compressed gas canisters and propane cylinders, present a greater risk
than aerosol cans and would not be included.
Utah's definition of aerosol cans includes a size limitation of
twenty-four ounces for aerosol cans that would qualify under their
universal waste provisions. EPA has not, however, included a size
limitation on universal waste aerosol cans in this proposal because EPA
believes that aerosol cans that meet the proposed definition in general
can be safely managed under the universal waste system for the reasons
explained in Section III above, and has not identified reasons why size
would affect the considerations described. However, EPA requests
comment on whether to include a size limit of twenty-four ounces or
other type of limitations on the types of aerosol cans that would be
eligible for the federal universal waste rule, including any
information on how such a limit would be necessary to ensure safe
management of aerosol cans. EPA requests comment on the appropriate
scope of the definition of ``aerosol can'' and the types of materials
that should fall under it.
Proposed section 273.6 has specific exclusions from the coverage of
the proposed rules in paragraph 273.6(b). First, the proposed rules at
273.6(b)(1) and (2) exclude from the definition of ``aerosol can''
those cans that are not yet a waste under 40 CFR part 261, and those
cans that are not hazardous waste, respectively. An aerosol can would
only be subject to the proposed rule if it is considered a hazardous
waste under 40 CFR part 261, and before a material can be determined to
be a hazardous waste, it first must be determined to be a solid waste.
Accordingly, any aerosol can that is not yet a solid waste (for
example, because it is not yet discarded) would also not be subject to
this section. Consistent with prior universal waste rules, the proposed
rule at 273.6(c) also explains that a used aerosol can becomes a waste
on the date it is discarded, and an unused aerosol can becomes a waste
on the date the handler decides to discard it.
A solid waste may be a hazardous waste either because it is listed
as a hazardous waste in subpart D of 40 CFR part 261 or because it
exhibits one or more of the characteristics of hazardous waste, as
provided in subpart C of 40 CFR part 261. For example, as discussed in
Section II above, aerosol cans are frequently hazardous due to the
ignitability characteristic, and in some cases may also contain listed
hazardous waste or materials exhibiting another hazardous
characteristic. If a solid waste aerosol can is determined to be non-
hazardous then it is also not subject to the proposed universal waste
regulations.
In proposed 273.6(b)(3), EPA specifically excludes aerosol cans
that have been emptied of their contents (both propellant and product).
Once the contents of a universal waste aerosol can have been removed,
the emptied can is considered a new point of generation and is subject
to a hazardous waste determination per 40 CFR 262.11. An aerosol can
that meets the definition of empty container in 40 CFR 261.7 is not
subject to hazardous waste regulation, and may be recycled as scrap
metal.
The proposed rules also exclude at 273.4(b)(4), aerosol cans that
show evidence of leakage, spillage, or damage that could cause leakage
under reasonably foreseeable conditions. Through this exclusion, EPA
intends that hazardous waste aerosol cans that are not intact continue
to be subject to the full hazardous waste standards. The protectiveness
of the proposed management standards described below relies in part on
the fact that the aerosol cans to be managed in accordance with those
rules are not leaking or otherwise damaged where contents or
propellants could be dispersed out of the can, because such
uncontrolled release could pose risk to human health and the
environment, including an increased risk of fire. A leaking or damaged
hazardous waste aerosol can that presents a risk of the contents or
propellants being dispersed out of the can would need to be managed as
RCRA hazardous waste under 40 CFR parts 260 through 272. Therefore,
this provision includes all discarded, intact, non-empty hazardous
waste aerosol cans.
B. Proposed Management Requirements for Aerosol Cans
1. Proposed Requirements for Small and Large Quantity Handlers
Under this proposed rule, the existing universal waste requirements
currently applicable to small quantity handlers of universal waste
(SQHUWs) and large quantity handlers of universal waste (LQHUWs) would
also be applicable to handlers of discarded aerosol cans. For both
SQHUWs and LQHUWs, these requirements include waste management
standards, labeling and marking, accumulation time limits, employee
training, response to releases, requirements related to off-site
shipments, and export requirements. LQHUWs are subject to additional
notification and tracking requirements. For the labeling requirement,
EPA is proposing that either each aerosol can, or a container in which
the aerosol cans are contained, must be labeled or marked clearly with
any of the following phrases: ``Universal Waste--Aerosol Can(s),''
``Waste Aerosol Can(s)'', or ``Used Aerosol Can(s)''.
In addition, EPA is proposing that small and large quantity
universal waste handlers must follow certain specific management
standards while handling their aerosol cans. Under this proposal, all
handlers must manage their universal waste aerosol cans in a manner
designed to prevent releases to the environment. This includes
accumulating universal waste aerosol cans in containers that are
structurally sound and compatible with the contents of the can, and
show no evidence of leaks, spills, or damage that could cause leaks
under reasonably foreseeable conditions. Handlers may sort aerosol cans
by type and consolidate intact aerosol cans in larger containers,
remove actuators to reduce the risk of accidental release, and under
certain conditions, may puncture and drain aerosol cans that are being
recycled, as described below.
2. Proposed Requirements and Request for Comment on Puncturing and
Draining at Small and Large Quantity Handlers
As discussed in Section II above, under the current hazardous waste
regulations, puncturing and draining an aerosol can, if performed as
part of the recycling process (e.g., scrap metal recycling), is exempt
from RCRA permitting requirements per 40 CFR 261.6(c). Storage of
hazardous waste aerosol cans prior to recycling still requires a
permit, unless it is exempt from permitting under another provision.
[[Page 11661]]
However, EPA expects that puncturing and draining activities at
universal waste handlers will be different from those currently
performed by hazardous waste generators. Because handlers may receive
universal waste from many other handlers, the volume of aerosol cans
punctured and drained at a commercial universal waste handler is likely
to be much greater than at a typical hazardous waste generator (which
can only puncture and drain its own hazardous waste aerosol cans). In
addition, under the universal waste regulations, handlers can store
their universal waste up to a year, which could increase the number of
cans punctured and drained at one time if the facility processes the
cans in batches.
Because of the likely differences between recycling of aerosol cans
at hazardous waste generators versus recycling of aerosol cans at
universal waste handlers, EPA is proposing specific management
standards for the puncturing and draining of aerosol cans at universal
waste handlers, similar to the requirements currently being implemented
in states that have added aerosol cans to their list of universal
waste. The aerosol can universal waste programs of California,
Colorado, Utah and New Mexico, as well as Ohio's proposed aerosol can
universal waste program, allow for puncturing and draining of aerosol
cans by universal waste handlers, as long as specific management
standards and waste characterization requirements are met.
Similar to the current state requirements, EPA is proposing that
puncturing and draining activities must be conducted by a commercial
device specifically designed to safely puncture aerosol cans and
effectively contain the residual contents and any emissions thereof.
Puncturing and draining systems for aerosol cans are available from
multiple commercial vendors. These devices generally consist of an
enclosed puncturing device that punctures an aerosol can, allowing the
contents to be drained into an attached container. In many cases, these
containers are 55-gallon drums with a filter made of carbon or similar
materials to capture any gases that may escape the 55-gallon drum
during the puncturing and draining process.
Manufacturers of aerosol can puncturing and draining devices
include instructions for their use.\15\ These instructions include
operating devices in a well ventilated area that is free from sparks
and ignition sources in order to prevent fires, use of personal
protective equipment such as safety goggles, and segregating
incompatible products from being drained into the same container.
Operators of puncturing and draining devices are also instructed to
ensure that the container remains closed, does not become overfilled
and that the container storing the contents of the drained aerosol cans
is also kept in a well ventilated area free from sparks or ignition
sources.
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\15\ EPA 2017. Compilation of Manufacturer's Guidance on Devices
for Puncturing and Draining Aerosol Cans, December 2017.
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However, the Agency has previously investigated the performance of
at least one aerosol can puncturing and draining device through EPA's
Environmental Technology Verification (ETV) program. The ETV review
demonstrated one type of drum-top puncturing and draining system was
effective in processing at least 187 cans before breakthrough of
volatile chemicals occurred, which was significantly less than the 600-
750 cans recommended by some manufacturers. The drum that contained the
drained liquid from the aerosol cans was also never more than 25% full
before breakthrough occurring. These findings were contrary to
manufacturer recommendations of ensuring the container is not filled
past 70% full in order to avoid breakthrough of volatile chemicals. In
addition, the ETV program found that halogenated compounds (e.g.,
chlorinated solvents) were found to be incompatible with the seal and
gasket materials.
The performance of aerosol can puncturing and draining devices will
vary by manufacturer and it remains the responsibility of the operator
to ensure that the puncturing device is properly draining the contents
of the aerosol cans into the drum, that breakthrough is not occurring,
and that aerosol cans incompatible with the device are not punctured.
For example, information is readily available regarding potential
incompatibilities for aerosol can propellants with puncturing devices
containing rubber seals or gaskets.\16\
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\16\ EPA 2017. Compilation of Manufacturer's Guidance on Devices
for Puncturing and Draining Aerosol Cans, December 2017. See table
beginning on page 54.
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Therefore, EPA is proposing that handlers must establish a written
procedure detailing how to safely puncture and drain universal waste
aerosol can (including operation and maintenance of the unit;
segregation of incompatible wastes; and proper waste management
practices to prevent fires or releases), and ensure employees operating
the device are trained in the proper procedures. At minimum, EPA is
proposing that the written procedure address the operation and
maintenance of the unit including its proper assembly; segregation of
incompatible wastes; and proper waste management practices, (e.g.,
ensuring that flammable wastes are stored away from heat or open
flames).
EPA is also proposing that the actual puncturing of the cans should
be done in a manner designed to prevent fires and to prevent the
release of the aerosol can contents to the environment. This includes,
but is not limited to, locating the equipment on a solid, flat surface
in a well-ventilated area.
In addition, EPA is proposing that the contents from the cans
should be immediately transferred from the waste aerosol can, or
puncturing device if applicable, to a container or tank and that the
contents are subject to a hazardous waste determination under 40 CFR
262.11. The handler becomes that hazardous waste generator of the
hazardous aerosol can contents and must manage those waste in
accordance with applicable RCRA regulations.
The proposed rule would also require that a written procedure be in
place in the event of a spill or release and a spill clean-up kit
should be provided. All spills or leaks of the contents of the aerosol
cans should be cleaned up promptly.
Finally, EPA notes that all puncturing, waste collection, and
disposal, must be conducted in compliance with all applicable federal,
state and local waste (solid and hazardous waste) and occupational
safety and health laws and regulations.
In addition, EPA is requesting comment on establishing further
limitations on puncturing and draining of aerosol cans, similar to
limitations that have been established by state waste management
programs either through regulations or guidance. Many states have
issued guidelines for puncturing and draining aerosol cans under their
hazardous waste program. Some state guidelines recommend against the
generator puncturing and draining certain types of aerosol cans due to
the possible incompatibility with the puncturing and draining equipment
or the contents of other cans being drained, or due to the hazardous
nature of the contents. These aerosol cans include, but are not limited
to, cans containing the following contents: Ethers including ethyl
ether, chlorinated compounds, pesticides, herbicides, freons, foamers,
corrosive cleaners and unknowns.\17\ EPA requests comment on
[[Page 11662]]
establishing additional regulatory requirements for can draining
devices and limits on aerosol cans that may pose compatibility problems
and that may be punctured and drained under the proposed rules.
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\17\ EPA 2017. Summary of State Programs Addressing Aerosol Cans
Under RCRA Hazardous Waste Regulations or Under State Universal
Waste Programs. December 2017.
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In addition, EPA is requesting comment on limiting puncturing and
draining practices to handlers that are not commercial processors
(i.e., a person that processes aerosol cans received from other
entities in exchange for compensation). Such a limitation would be
consistent with California's universal waste program. Under this
option, the puncturing and draining management standards would only
apply to handlers that are not commercial processors. Handlers that are
commercial processors may still accept aerosol cans and process the
cans by sorting and consolidating them, but would be unable to puncture
and drain the cans. Under this option, commercial processors that would
like to puncture and drain aerosol cans must first meet the
requirements for a universal waste destination facility (including
requiring a permit for storage of the hazardous waste aerosol cans
prior to recycling). Handlers would still be allowed to puncture and
drain the hazardous waste aerosol cans that they generate.
1. Proposed Requirements for Transporters
This proposed rule would not change any of the existing
requirements applicable to universal waste transporters. Under 40 CFR
273.9, the definition of a universal waste transporter is ``a person
engaged in the off-site transportation of universal waste by air, rail,
highway, or water.'' Persons meeting the definition of universal waste
transporter include those persons who transport universal waste from
one universal waste handler to another, to a processor, to a
destination facility, or to a foreign destination. These persons are
subject to the universal waste transporter requirements of part 273,
subpart D. EPA notes that this proposed rule also would not affect the
applicability of shipping requirements under the hazardous waste
materials regulations of the Department of Transportation. Transporters
continue to be subject to these requirements, if applicable (e.g., 49
CFR 173.306 for shipping of limited quantities of aerosol cans, or 49
CFR 173.115(l) which sets limits in the definition of ``aerosol'' for
the purpose of shipping flammable gas).
2. Proposed Requirements for Destination Facilities
This proposed rule would not change any of the existing
requirements applicable to universal waste destination facilities
(subpart E of part 273). Under 40 CFR 273.9, the definition of a
destination facility is ``a facility that treats, disposes of, or
recycles a particular category of universal waste'' (except certain
activities specified in the regulations at Sec. 273.13(a) and (c) and
Sec. 273.33(a) and (c)).
3. Effect of This Proposed Rule on Household Wastes and Very Small
Quantity Generators
Adding hazardous waste aerosol cans to the federal definition of
universal wastes would not impose any requirements on households and
very small quantity generators for managing these cans. Household waste
continues to be exempt from RCRA subtitle C regulations under 40 CFR
261.4(b)(1). However, under the universal waste rule, households and
VSQGs may choose to manage their hazardous waste aerosol cans in
accordance with either the VSQG regulations under 40 CFR 261.5 or as a
universal waste under part 273 (40 CFR 273.8(a)(2)). It should be
noted, however, that 40 CFR 273.8(b) would continue to apply. Under
this provision, if household or VSQG wastes are mixed with universal
waste subject to the requirements of 40 CFR part 273 (i.e., universal
waste that is not generated by households or VSQGs), the commingled
waste must be handled as universal waste in accordance with part 273.
Under this proposed rule, handlers of universal waste who collect 5,000
kilograms or more of this commingled aerosol can waste would be
considered large quantity handlers of universal waste and must meet the
requirements of that category of universal waste handler. Hazardous
waste aerosol cans that are managed as a universal waste under 40 CFR
part 273 would not be required to be included in a facility's
determination of hazardous waste generator status (40 CFR 261.5(c)(6)).
Therefore, a generator that manages such cans under the universal waste
rule and does not generate any other hazardous waste would not be
subject to other subtitle C hazardous waste management regulations,
such as the hazardous waste generator regulations in part 262. A large
or small universal waste handler that generates more than 100 kilograms
but less than 1,000 kilograms of hazardous waste in a calendar month in
addition to the universal waste it generates would be regulated as a
small quantity generator of hazardous waste and would be required to
manage all hazardous waste not included within the scope of that
universal waste rule in accordance with all applicable subtitle C
hazardous waste management standards. Similarly, a larger or small
universal waste handler that generates 1000 kilograms or more of
hazardous waste in a calendar month in addition to the universal waste
it generates would be regulated as a large quantity generator of
hazardous waste.
4. Applicability of Land Disposal Restriction Requirements
This proposed rule would not change the applicability of land
disposal restriction (LDR) requirements to universal waste. Under the
existing regulations (40 CFR 268.1(f)), universal waste handlers and
transporters are exempt from the land disposal restriction (LDR)
requirements regarding testing, tracking, and recordkeeping in 40 CFR
268.7 and the storage prohibition in 40 CFR 268.50. EPA proposes to
amend 40 CFR 268.1(f) to add aerosol can universal waste for
consistency. This proposed rule would also not change the regulatory
status of destination facilities; they remain subject to the full LDR
requirements.
V. Technical Corrections
As part of this rulemaking, EPA is proposing four technical
corrections to the universal waste standards for mercury-containing
equipment in 40 CFR 273.13(c)(2)(iii) and (iv) and 273.33(c)(2)(iii)
and (iv). Each of these paragraphs contains a reference to 40 CFR
262.34, which was removed and reserved as part of the November 28,
2016, Hazardous Waste Generator Improvements Rule (81 FR 85732). EPA
neglected to update these references as part of its corresponding
changes in that rule and is correcting that mistake here. In all four
places, EPA is proposing that the regulation refer to 40 CFR 262.16 or
262.17, as applicable.
VI. State Authority
A. Applicability of Proposed Rule in Authorized States
Under section 3006 of RCRA, EPA may authorize qualified states to
administer and enforce the RCRA hazardous waste program within the
state. Following authorization, EPA retains enforcement authority under
sections 3008, 3013, and 7003 of RCRA, although authorized states have
primary enforcement responsibility. The standards and requirements for
state authorization are found at 40 CFR part 271. Prior to enactment of
the Hazardous and Solid Waste Amendments of 1984 (HSWA), a State with
final RCRA authorization administered its hazardous waste program
entirely in lieu of EPA administering the federal program in
[[Page 11663]]
that state. The federal requirements no longer applied in the
authorized state, and EPA could not issue permits for any facilities in
that state, since only the state was authorized to issue RCRA permits.
When EPA promulgated new, more stringent federal requirements for these
pre-HSWA regulations, the state was obligated to enact equivalent
authorities within specified time frames. However, the new federal
requirements did not take effect in an authorized state, until the
state adopted the federal requirements as state law. In contrast, under
RCRA section 3006(g) (42 U.S.C. 6926(g)), which was added by HSWA, new
requirements and prohibitions imposed under HSWA authority take effect
in authorized states at the same time that they take effect in
unauthorized states. EPA is directed by the statute to implement these
requirements and prohibitions in authorized states, including the
issuance of permits, until the state is granted authorization to do so.
While states must still adopt HSWA related provisions as state law to
retain final authorization, EPA implements the HSWA provisions in
authorized states until the states do so.
Authorized states are required to modify their programs only when
EPA enacts federal requirements that are more stringent or broader in
scope than existing federal requirements. RCRA section 3009 allows the
states to impose standards more stringent than those in the federal
program (see also 40 CFR 271.1). Therefore, authorized states may, but
are not required to, adopt federal regulations, both HSWA and non-HSWA,
that are considered less stringent than previous federal regulations.
B. Effect on State Authorization
This proposed rule would be less stringent than the current federal
program. Because states are not required to adopt less stringent
regulations, they would not have to adopt the universal waste
regulations for aerosol cans, although EPA encourages them to do so.
Some states have already added aerosol cans to the list of universal
wastes in that state, and others may do so in the future. If a state's
standards for aerosol cans are less stringent than those in the final
rule, the state would have to amend its regulations to make them at
least equivalent to the federal standards and pursue authorization.
VII. Statutory and Executive Order Reviews
Additional information about these statutes and Executive Orders
can be found at https://www.epa.gov/laws-regulations/laws-and-executive-orders.
A. Executive Order 12866: Regulatory Planning and Review and Executive
Order 13563: Improving Regulation and Regulatory Review
This action is not a significant regulatory action because it does
not have a significant economic impact nor does it raise novel legal or
policy issues. The Office of Management and Budget (OMB) waived review.
B. Executive Order 13771: Reducing Regulations and Controlling
Regulatory Costs
This action is expected to be an Executive Order 13771 deregulatory
action. Details on the estimated cost savings of this proposed rule can
be found in EPA's analysis of the potential costs and benefits
associated with this action.
C. Paperwork Reduction Act (PRA)
The information collection activities in this proposed rule will be
submitted for approval to the Office of Management and Budget (OMB)
under the PRA. The Information Collection Request (ICR) documents that
the EPA prepared have been assigned EPA ICR number 1597.12 and ICR
number 2513.03. You can find copies of the ICRs in the docket for this
rule, and they are briefly summarized here.
Because aerosol cans managed under the proposed rule are not
counted toward a facility's RCRA generator status, respondents will see
a reduction in burden. This is because the aerosol cans would not be
subject to recordkeeping and reporting requirements as hazardous waste,
and the respondent may no longer be subject to hazardous waste
generator recordkeeping and reporting requirements, depending on the
quantity of non-aerosol can hazardous waste they generate. The existing
universal waste requirements currently applicable to small quantity
handlers of universal waste (SQHUWs) and large quantity handlers of
universal waste (LQHUWs) would also be applicable to handlers of
aerosol can waste. For both SQHUWs and LQHUWs, these requirements
include labeling and marking, employee training, response to releases,
and export requirements. LQHUWs are also subject to additional
notification and tracking requirements.
Respondents/affected entities: The information collection
requirements of the proposed rule affect facilities that handle aerosol
can waste and vary based on facility generator and handler status.
Respondent's obligation to respond: The recordkeeping and
notification requirements are required in order to obtain a benefit
under 40 CFR part 273.
Estimated number of respondents: 639.
Frequency of response: One-time notification for LQHUWs, annual
training requirements for all universal waste handlers; per-shipment
costs for labeling (all handlers) and tracking (LQHUWs).
Total estimated burden: EPA estimates the annual burden to
respondents to be a net reduction in burden of approximately 39,113
hours. Burden is defined at 5 CFR 1320.3(b).
Total estimated cost: The total estimated annual cost of this rule
is a cost savings of approximately $2.0 million. This cost savings is
composed of approximately $1.94 million in annualized avoided labor
costs and $0.06 million in avoided capital or operation and maintenance
costs.
An agency may not conduct or sponsor, and a person is not required
to respond to, a collection of information unless it displays a
currently valid OMB control number. The OMB control numbers for the
EPA's regulations in 40 CFR are listed in 40 CFR part 9. The OMB
Control Number for this proposed rule is 2050-0145. Submit your
comments on the Agency's need for this information, the accuracy of the
provided burden estimates and any suggested methods for minimizing
respondent burden to the EPA using the docket identified at the
beginning of this rule. You may also send your ICR-related comments to
OMB's Office of Information and Regulatory Affairs via email to
[email protected], Attention: Desk Officer for the EPA. Since
OMB is required to make a decision concerning the ICR between 30 and 60
days after receipt, OMB must receive comments no later than April 16,
2018. The EPA will respond to any ICR-related comments in the final
rule.
D. Regulatory Flexibility Act (RFA)
I certify that this proposed action will not have a significant
economic impact on a substantial number of small entities under the
RFA. In making this determination, the impact of concern is any
significant adverse economic impact on small entities. An agency may
certify that a rule will not have a significant economic impact on a
substantial number of small entities if the rule relieves regulatory
burden, has no net burden or otherwise has a positive economic effect
on the small entities subject to the rule. As documented in the
Regulatory Impact Analysis found in the docket for this
[[Page 11664]]
proposal, EPA does not expect the rule to result in an adverse impact
to a significant number of small entities, since the rule is expected
to result in net cost savings for all entities affected by the rule. We
have therefore concluded that this proposed action will either relieve
regulatory burden or have no net regulatory burden for all directly
regulated small entities.
E. Unfunded Mandates Reform Act (UMRA)
As documented in the Regulatory Impact Analysis found in the docket
for this proposal, this proposed action does not contain an unfunded
mandate of $100 million or more as described in UMRA, 2 U.S.C. 1531-
1538, and does not significantly or uniquely affect small governments.
F. Executive Order 13132: Federalism
As documented in the Regulatory Impact Analysis found in the docket
for this proposal, this proposed action does not have federalism
implications. It will not have substantial direct effects on the
states, on the relationship between the national government and the
states, or on the distribution of power and responsibilities among the
various levels of government.
G. Executive Order 13175: Consultation and Coordination With Indian
Tribal Governments
This proposed action does not have tribal implications as specified
in Executive Order 13175. Because the proposed rule is expected to
result in net cost savings, EPA does not expect that it would result in
any adverse impacts on tribal entities. Thus, Executive Order 13175
does not apply to this proposed action.
H. Executive Order 13045: Protection of Children From Environmental
Health Risks and Safety Risks
This proposed action is not subject to Executive Order 13045
because it is not economically significant as defined in Executive
Order 12866, and because the EPA does not believe the environmental
health or safety risks addressed by this proposed action present a
disproportionate risk to children. This proposed action's health and
risk assessments are contained in the Regulatory Impact Analysis of
Proposed Rule to Add Aerosol Cans to the Universal Waste Rule, found in
the docket for this proposal.
I. Executive Order 13211: Actions Concerning Regulations That
Significantly Affect Energy Supply, Distribution or Use
This proposed action is not subject to Executive Order 13211,
because it is not a significant regulatory action under Executive Order
12866.
J. National Technology Transfer and Advancement Act (NTTAA)
This rulemaking does not involve technical standards.
K. Executive Order 12898: Federal Actions To Address Environmental
Justice in Minority Populations and Low-Income Populations
The EPA believes that this proposed action does not have
disproportionately high and adverse human health or environmental
effects on minority populations, low-income populations and/or
indigenous peoples, as specified in Executive Order 12898 (59 FR 7629,
February 16, 1994).
The documentation for this decision is contained in Regulatory
Impact Analysis of Proposed Rule to Add Aerosol Cans to the Universal
Waste Rule, found in the docket for this proposal.
List of Subjects
40 CFR Part 260
Environmental protection, Administrative practice and procedure,
Hazardous waste.
40 CFR Part 261
Environmental protection, Hazardous waste, Recycling.
40 CFR Part 264
Environmental protection, Hazardous waste, Packaging and
containers.
40 CFR Part 265
Environmental protection, Hazardous waste, Packaging and
containers.
40 CFR Part 268
Environmental protection, Hazardous waste, Reporting and
recordkeeping requirements.
40 CFR Part 270
Environmental protection, Hazardous materials transportation,
Reporting and recordkeeping requirements.
40 CFR Part 273
Environmental protection, Hazardous materials transportation,
Hazardous waste.
Dated: March 5, 2018.
E. Scott Pruitt,
Administrator.
For the reasons set out in the preamble, title 40, chapter I of the
Code of Federal Regulations, parts 260, 261, 264, 265, 268, 270, and
273 are proposed to be amended as follows:
PART 260--HAZARDOUS WASTE MANAGEMENT SYSTEM: GENERAL
0
1. The authority citation for part 260 continues to read as follows:
Authority: 42 U.S.C. 6905, 6912(a), 6921- 6927, 6930, 6934,
6935, 6937, 6938, 6939, and 6974.
Subpart B--Definitions
0
2. Section 260.10 is amended by:
0
a. Adding the definition of ``Aerosol can'' in alphabetical order;
0
b. Amending the definition ``Universal waste'' by:
0
i. Republishing the introductory text;
0
ii. Removing the word ``and'' at the end of paragraph (3);
0
iii. Revising paragraph (4); and
0
iv. Adding paragraph (5); and
0
c. Republishing the introductory text of paragraph (2) and revising
paragraph (2)(i) of the definition of ``Universal waste handler''.
The revisions and additions read as follows:
Sec. 260.10 Definitions.
* * * * *
Aerosol can means 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.
* * * * *
Universal waste means any of the following hazardous wastes that
are managed under the universal waste requirements of part 273 of this
chapter:
* * * * *
(4) Lamps as described in Sec. 273.5 of this chapter; and
(5) Aerosol cans as described in Sec. 273.6 of this chapter.
Universal waste handler:
* * * * *
(2) Does not mean:
(i) A person who treats (except under the provisions of 40 CFR
273.13(a) or (c), or 40 CFR 273.33(a) or (c)), disposes of, or recycles
(except under the provisions of 40 CFR 273.13(e) or 40 CFR 273.33(e))
universal waste; or
* * * * *
PART 261--IDENTIFICATION AND LISTING OF HAZARDOUS WASTE
0
3. The authority citation for part 261 continues to read as follows:
[[Page 11665]]
Authority: 42 U.S.C. 6905, 6912(a), 6921, 6922, 6924(y), and
6938.
Subpart A--General
0
4. Section 261.9 is amended by:
0
a. Removing the word ``and'' at the end of paragraph (c);
0
b. Revising paragraph (d); and
0
c. Adding paragraph (e).
The revisions and additions read as follows:
Sec. 261.9 Requirements for universal waste.
* * * * *
(d) Lamps as described in Sec. 273.5 of this chapter; and
(e) Aerosol cans as described in Sec. 273.6 of this chapter.
PART 264--STANDARDS FOR OWNERS AND OPERATORS OF HAZARDOUS WASTE
TREATMENT, STORAGE AND DISPOSAL FACILITIES
0
5. The authority citation for part 264 continues to read as follows:
Authority: 42 U.S.C. 6905, 6912(a), 6924, and 6925.
Subpart A--General
0
6. Section 264.1 is amended by:
0
a. Removing the word ``and'' at the end of paragraph (g)(11)(iii);
0
b. Revising paragraph (g)(11)(iv); and
0
c. Adding paragraph (g)(11)(v).
The revision and addition read as follows:
Sec. 264.1 Purpose, scope and applicability.
* * * * *
(g) * * *
(11) * * *
(iv) Lamps as described in Sec. 273.5 of this chapter; and
(v) Aerosol cans as described in Sec. 273.6 of this chapter.
* * * * *
PART 265--INTERIM STATUS STANDARDS FOR OWNERS AND OPERATORS OF
HAZARDOUS WASTE TREATMENT, STORAGE, AND DISPOSAL FACILITIES
0
7. The authority citation for part 265 continues to read as follows:
Authority: 42 U.S.C. 6905, 6906, 6912, 6922, 6923, 6924, 6925,
6935, 6936, and 6937.
Subpart A--General
0
8. Section 265.1 is amended by:
0
a. Removing the word ``and'' at the end of paragraph (c)(14)(iii);
0
b. Revising paragraph (c)(14)(iv); and
0
c. Adding paragraph (c)(14)(v).
The revision and addition read as follows:
Sec. 265.1 Purpose, scope, and applicability.
* * * * *
(c) * * *
(14) * * *
(iv) Lamps as described in Sec. 273.5 of this chapter; and
(v) Aerosol cans as described in Sec. 273.6 of this chapter.
* * * * *
PART 268--LAND DISPOSAL RESTRICTIONS
0
9. The authority citation for part 268 continues to read as follows:
Authority: 42 U.S.C. 6905, 6912(a), 6921, and 6924.
Subpart A--General
0
10. Section 268.1 is amended by:
0
a. Removing the word ``and'' at the end of paragraph (f)(3);
0
b. Revising paragraph (f)(4); and
0
c. Adding paragraph (f)(5)
The revision and addition read as follows:
Sec. 268.1 Purpose, scope, and applicability.
* * * * *
(f) * * *
(4) Lamps as described in Sec. 273.5 of this chapter; and
(5) Aerosol cans as described in Sec. 273.6 of this chapter.
PART 270--EPA ADMINISTERED PERMIT PROGRAMS: THE HAZARDOUS WASTE
PERMIT PROGRAM
0
11. The authority citation for part 270 continues to read as follows:
Authority: 42 U.S.C. 6905, 6912, 6924, 6925, 6927, 6939, and
6974.
Subpart A--General Information
0
12. Section 270.1 is amended by:
0
a. Removing the word ``and'' at the end of paragraph (c)(2)(viii)(C);
0
b. Revising paragraph (c)(2)(viii)(D); and
0
c. Adding paragraph (c)(2)(viii)(E).
The revision and addition read as follows:
Sec. 270.1 Purpose and scope of these regulations.
* * * * *
(c) * * *
(2) * * *
(viii) * * *
(D) Lamps as described in Sec. 273.5 of this chapter; and
(E) Aerosol cans as described in Sec. 273.6 of this chapter.
* * * * *
PART 273--STANDARDS FOR UNIVERSAL WASTE MANAGEMENT
0
13. The authority for part 273 continues to read as follows:
Authority: 42 U.S.C. 6922, 6923, 6924, 6925, 6930, and 6937.
Subpart A--General
0
14. Section 273.1 is amended by:
0
a. Removing the word ``and'' at the end of paragraph (a)(3);
0
b. Revising paragraph (a)(4); and
0
c. Adding paragraph (a)(5).
The revision and addition read as follows:
Sec. 273.1 Scope.
(a) * * *
(4) Lamps as described in Sec. 273.5 of this chapter; and
(5) Aerosol cans as described in Sec. 273.6 of this chapter.
* * * * *
0
15. Section 273.6 is added to read as follows:
Sec. 273.6 Applicability--Aerosol cans.
(a) Aerosol cans covered under this part 273. The requirements of
this part apply to persons managing aerosol cans, as described in Sec.
273.9, except those listed in paragraph (b) of this section.
(b) Aerosol cans not covered under this part 273. The requirements
of this part do not apply to persons managing the following aerosol
cans:
(1) Aerosol cans that are not yet a waste under part 261 of this
chapter. Paragraph (c) of this section describes when an aerosol cans
becomes a waste;
(2) Aerosol cans that are not hazardous waste. An aerosol can is a
hazardous waste if the aerosol can exhibits one or more of the
characteristics identified in part 261, subpart C of this chapter or
the aerosol can contains a substance that is listed in part 261,
subpart D of this chapter;
(3) Aerosol cans that meet the standard for empty containers under
part 261.7 of this chapter, and
(4) Aerosol cans that show evidence of leakage, spillage, or damage
that could cause leakage under reasonably foreseeable conditions.
(c) Generation of waste aerosol cans.
(1) A used aerosol can become a waste on the date it is discarded.
(2) An unused aerosol can become a waste on the date the handler
decides to discard it.
0
16. Section 273.9 is amended by:
0
a. Adding the definition of ``Aerosol can'' in alphabetical order;
0
b. Revising the definitions of ``Large quantity handler of universal
waste'' and ``Small quantity handler of universal waste'';
[[Page 11666]]
0
c. In the definition ``Universal waste'':
0
i. Republishing the introductory paragraph;
0
ii. Removing the word ``and'' at the end of paragraph (3);
0
iii. Revising paragraph (4), and adding paragraph (5); and
0
d. Republishing the introductory text of paragraph (b) and revising
paragraph (b)(1) of the definition of ``Universal waste handler''.
The revision and addition read as follows to read as follows:
Sec. 273.9 Definitions.
Aerosol can means 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.
* * * * *
Large Quantity Handler of Universal Waste means a universal waste
handler (as defined in this section) 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 (as defined in this section) 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.
* * * * *
Universal Waste means any of the following hazardous wastes that
are subject to the universal waste requirements of this part 273:
* * * * *
(4) Lamps as described in Sec. 273.5; and
(5) Aerosol cans as described in Sec. 273.6.
Universal Waste Handler:
* * * * *
(b) Does not mean:
(1) A person who treats (except under the provisions of 40 CFR
273.13(a) or (c), or 40 CFR 273.33(a) or (c)), disposes of, or recycles
(except under the provisions of 40 CFR 273.13(e) or 40 CFR 273.33(e))
universal waste; or
* * * * *
Subpart B--Standards for Small Quantity Handlers of Universal Waste
0
17. Section 273.13 is amended by revising paragraphs (c)(2)(iii) and
(iv) and adding paragraph (e) to read as follows:
Sec. 273.13 Waste management.
* * * * *
(c) * * *
(2) * * *
(iii) Ensures that a mercury clean-up system is readily available
to immediately transfer any mercury resulting from spills or leaks from
broken ampules from that containment device to a container that meets
the requirements of 40 CFR 262.16 or 262.17, as applicable.
(iv) Immediately transfers any mercury resulting from spills or
leaks from broken ampules from the containment device to a container
that meets the requirements of 40 CFR 262.16 or 262.17, as applicable.
* * * * *
(e) Aerosol cans. A small quantity handler of universal waste must
manage universal waste aerosol cans in a way that prevents releases of
any universal waste or component of a universal waste to the
environment, as follows:
(1) Universal waste aerosol cans must be accumulated 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 under reasonably foreseeable conditions;
(2) A small quantity handler of universal waste may conduct the
following activities as long as each individual aerosol can is not
breached and remains intact:
(i) Sorting aerosol cans by type;
(ii) Mixing intact cans in one container; and
(iii) Removing actuators to reduce the risk of accidental release.
(3) A small quantity handler of universal waste who punctures and
drains their aerosol cans must recycle the empty punctured aerosol cans
and meet the following requirements while puncturing and draining
hazardous waste aerosol cans:
(i) Conduct puncturing and draining activities using a device
specifically designed to safely puncture aerosol cans and effectively
contain the residual contents and any emissions thereof;
(ii) Establish a written procedure detailing how to safely puncture
and drain universal waste aerosol can (including proper assembly,
operation and maintenance of the unit; segregation of incompatible
wastes; and proper waste management practices to prevent fires or
releases), maintain a copy of the manufacturer's specification and
instruction onsite, and ensure employees operating the device are
trained in the proper procedures;
(iii) Ensure that puncturing of the can is in a manner designed to
prevent fires and to prevent the release of any component of universal
waste to the environment. This includes, but is not limited to,
locating the equipment on a solid, flat surface in a well ventilated
area;
(iv) Immediately transfer the contents from the waste aerosol can,
or puncturing device if applicable, to a container or tank that meets
the applicable requirements of Sec. 262.14, 262.15, 262.16, or 262.17;
(v) Conduct a hazardous waste determination on the emptied aerosol
can and its contents per 40 CFR 262.11. Any hazardous waste generated
as a result of puncturing and draining the aerosol can is subject to
all applicable requirements of 40 CFR parts 260 through 272. The
handler is considered the generator of the hazardous waste and is
subject to 40 CFR part 262;
(vi) If the contents are determined not to be hazardous, the
handler may manage the waste in any way that is in compliance with
applicable federal, state or local solid waste regulations; and
(vii) A written procedure must be in place in the event of a spill
or release and a spill clean-up kit must be provided. All spills or
leaks of the contents of the aerosol cans must be cleaned up promptly.
0
18. Section 273.14 is amended by adding paragraph (f) to read as
follows:
Sec. 273.14 Labeling/marking.
* * * * *
(f) Universal waste aerosol cans (i.e., each aerosol can), or a
container in which the aerosol cans are contained, must be labeled or
marked clearly with any of the following phrases: ``Universal Waste--
Aerosol Can(s),'' ``Waste Aerosol Can(s),'' or ``Used Aerosol Can(s)''.
Subpart C--Standards for Large Quantity Handlers of Universal Waste
0
19. Section 273.32 is amended by revising paragraph (b)(4) to read as
follows:
Sec. 273.32 Notification.
* * * * *
(b) * * *
(4) A list of all the types of universal waste managed by the
handler (e.g., batteries, pesticides, mercury-containing equipment,
lamps, and aerosol cans); and
* * *
* * * * *
0
20. Section 273.33 is amended by revising paragraphs (c)(2)(iii) and
(iv)
[[Page 11667]]
and adding paragraph (e) to read as follows:
Sec. 273.33 Waste management.
* * * * *
(c) * * *
(2) * * *
(iii) Ensures that a mercury clean-up system is readily available
to immediately transfer any mercury resulting from spills or leaks of
broken ampules from that containment device to a container that meets
the requirements of 40 CFR 262.16 or 262.17, as applicable.
(iv) Immediately transfers any mercury resulting from spills or
leaks from broken ampules from the containment device to a container
that meets the requirements of 40 CFR 262.16 or 262.17, as applicable.
* * * * *
(e) Aerosol cans. A large quantity handler of universal waste must
manage universal waste aerosol cans in a way that prevents releases of
any universal waste or component of a universal waste to the
environment, as follows:
(1) Universal waste aerosol cans must be accumulated 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 under reasonably foreseeable conditions;
(2) A large quantity handler of universal waste may conduct the
following activities as long as each individual aerosol can is not
breached and remains intact:
(i) Sorting aerosol cans by type; and
(ii) Mixing intact cans in one container; and (iii) Removing
actuators to reduce the risk of accidental release;
(3) A large quantity handler of universal waste who punctures and
drains their aerosol cans must recycle the empty punctured aerosol cans
and meet the following requirements while puncturing and draining
hazardous waste aerosol cans:
(i) Conduct puncturing and draining activities using a device
specifically designed to safely puncture aerosol cans and effectively
contain the residual contents and any emissions thereof;
(ii) Establish a written procedure detailing how to safely puncture
and drain universal waste aerosol can (including proper assembly,
operation and maintenance of the unit; segregation of incompatible
wastes; and proper waste management practices to prevent fires or
releases), maintain a copy of the manufacturer's specification and
instruction onsite, and ensure employees operating the device are
trained in the proper procedures;
(iii) Ensure that puncturing of the can is in a manner designed to
prevent fires and to prevent the release of any component of universal
waste to the environment. This includes, but is not limited to,
locating the equipment on a solid, flat surface in a well ventilated
area;
(iv) Immediately transfer the contents from the waste aerosol can,
or puncturing device if applicable, to a container or tank that meets
the applicable requirements of Sec. 262.14, 15, 16, or 17;
(v) Conduct a hazardous waste determination on the emptied aerosol
can and its contents per 40 CFR 262.11. Any hazardous waste generated
as a result of puncturing and draining the aerosol can is subject to
all applicable requirements of 40 CFR parts 260 through 272. The
handler is considered the generator of the hazardous waste and is
subject to 40 CFR part 262;
(vi) If the contents are determined not to be hazardous, the
handler may manage the waste in any way that is in compliance with
applicable federal, state or local solid waste regulations; and
(vii) A written procedure must be in place in the event of a spill
or release and a spill clean-up kit must be provided. All spills or
leaks of the contents of the aerosol cans must be cleaned up promptly.
0
21. Section 273.34 is amended by adding paragraph (f) to read as
follows:
Sec. 273.34 Labeling/marking.
* * * * *
(f) Universal waste aerosol cans (i.e., each aerosol can), or a
container in which the aerosol cans are contained, must be labeled or
marked clearly with any of the following phrases: ``Universal Waste--
Aerosol Can(s)'', ``Waste Aerosol Can(s)'', or ``Used Aerosol Can(s)''.
[FR Doc. 2018-05282 Filed 3-15-18; 8:45 am]
BILLING CODE 6560-50-P
