Increasing Recycling: Adding Aerosol Cans to the Universal Waste Regulations, 67202-67220 [2019-25674]
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Federal Register / Vol. 84, No. 236 / Monday, December 9, 2019 / Rules and Regulations
Executive Order 13771: Reducing
Regulations and Controlling Regulatory
Costs
This action is an Executive Order
13771 (82 FR 9339, January 30, 2017)
regulatory action because this action is
not significant under Executive Order
12866.
Paperwork Reduction Act
This action does not impose an
information collection burden under the
provisions of the Paperwork Reduction
Act of 1995 (44 U.S.C. 3501 et seq.).
Regulatory Flexibility Act
This action merely approves state law
as meeting Federal requirements and
imposes no additional requirements
beyond those imposed by state law.
Accordingly, the Administrator certifies
that this state operating permit program
will not have a significant economic
impact on a substantial number of small
entities under the Regulatory Flexibility
Act (5 U.S.C. 601 et seq.).
Unfunded Mandates Reform Act
Because this action approves preexisting requirements under state law
and does not impose any additional
enforceable duty beyond that required
by state law, it 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).
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Executive Order 13132: Federalism
This action also does not have
Federalism implications because it does
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, as specified in
Executive Order 13132 (64 FR 43255,
August 10, 1999). This action merely
approves a state operating permit
program, and does not alter the
relationship or the distribution of power
and responsibilities established in the
Act.
Executive Order 13175: Consultation
and Coordination With Indian Tribal
Governments
In addition, the state operating permit
program is not approved to 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 state operating permit
program does not have tribal
implications and will not impose
substantial direct costs on tribal
governments or preempt tribal law as
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specified by Executive Order 13175 (65
FR 67249, November 9, 2000).
Executive Order 13045: Protection of
Children from Environmental Health
and Safety Risks
This action also is not subject to
Executive Order 13045 ‘‘Protection of
Children from Environmental Health
Risks and Safety Risks’’ (62 FR 19885,
April 23, 1997), because it proposes to
approve a state operating permit
program.
Executive Order 13211: Actions That
Significantly Affect Energy Supply,
Distribution, or Use
Because it is not a ‘‘significant
regulatory action’’ under Executive
Order 12866 or a ‘‘significant energy
action,’’ this action is also not subject to
Executive Order 13211, ‘‘Actions
Concerning Regulations That
Significantly Affect Energy Supply,
Distribution, or Use’’ (66 FR 28355, May
22, 2001).
National Technology Transfer
Advancement Act
In reviewing state submissions, EPA’s
role is to approve state choices,
provided that they meet the criteria of
the Act. In this context, in the absence
of a prior existing requirement for the
state to use voluntary consensus
standards (VCS), EPA has no authority
to disapprove a state submission for
failure to use VCS. It would thus be
inconsistent with applicable law for
EPA, when it reviews a state
submission, to use VCS in place of a
state submission that otherwise satisfies
the provisions of the Act. Thus, the
requirements of section 12(d) of the
National Technology Transfer and
Advancement Act of 1995 (15 U.S.C.
272 note) do not apply.
permit program submissions, EPA’s role
is to approve or disapprove state
choices, based on the criteria of the Act.
Accordingly, this action merely
approves certain state requirements and
will not in-and-of itself create any new
requirements. Accordingly, it 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.
List of Subjects in 40 CFR Part 70
Environmental protection,
Administrative practice and procedure,
Air pollution control, Intergovernmental
relations, Operation permits, Reporting
and recordkeeping requirements.
Dated: November 19, 2019.
Cathy Stepp,
Regional Administrator, Region 5.
40 CFR part 70 is amended as follows:
PART 70—STATE OPERATING PERMIT
PROGRAMS
1. The authority citation for part 70
continues to read as follows:
■
Authority: 42 U.S.C. 7401 et seq.
2. Amend appendix A to part 70 by
adding paragraph (d) under Wisconsin
to read as follows:
■
Appendix A to Part 70—Approval
Status of State and Local Operating
Permits Programs
*
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Wisconsin
*
*
(d) Department of Natural Resources: Title
V operating permit program revisions and
updates received on March 8, 2017.
Wisconsin’s Title V program is hereby
updated to include these requested changes.
Executive Order 12898: Federal Actions
to Address Environmental
*
Justice in Minority Populations and
Low-Income Populations
Executive Order 12898 (59 FR 7629
(Feb. 16, 1994)) establishes Federal
executive policy on environmental
justice. Its main provision directs
Federal agencies, to the greatest extent
practicable and permitted by law, to
make environmental justice part of their
mission by identifying and addressing,
as appropriate, disproportionately high
and adverse human health or
environmental effects of their programs,
policies, and activities on minority
populations and low-income
populations in the United States.
EPA lacks the discretionary authority
to address environmental justice in this
action. In reviewing state operating
BILLING CODE 6560–50–P
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[FR Doc. 2019–26296 Filed 12–6–19; 8:45 am]
ENVIRONMENTAL PROTECTION
AGENCY
40 CFR Parts 260, 261, 264, 265, 268,
270, and 273
[EPA–HQ–OLEM–2017–0463; FRL–10002–
49–OLEM]
RIN 2050–AG92
Increasing Recycling: Adding Aerosol
Cans to the Universal Waste
Regulations
Environmental Protection
Agency (EPA).
ACTION: Final rule.
AGENCY:
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Federal Register / Vol. 84, No. 236 / Monday, December 9, 2019 / Rules and Regulations
The Environmental Protection
Agency (EPA or the Agency) is adding
hazardous waste aerosol cans to the
universal waste program under the
Federal Resource Conservation and
Recovery Act (RCRA) regulations. This
change will 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.
SUMMARY:
This final rule is effective on
February 7, 2020.
DATES:
The EPA has established a
docket for this action under Docket ID
No. EPA–HQ–RCRA–2017–0463. All
documents in the docket are listed on
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ADDRESSES:
the https://www.regulations.gov website.
Although listed in the index, some
information is not publicly available,
e.g., CBI or other information whose
disclosure is restricted by statute.
Certain other material, such as
copyrighted material, is not placed on
the internet and will be publicly
available only in hard copy form.
Publicly available docket materials are
available electronically through https://
www.regulations.gov.
FOR FURTHER INFORMATION CONTACT:
Laura Stanley, Office of Land and
Emergency Management (5304P),
Environmental Protection Agency, 1200
Pennsylvania Avenue NW, Washington,
DC 20460; telephone number: 703–308–
7285; email address: stanley.laura@
epa,gov, or 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.
SUPPLEMENTARY INFORMATION:
67203
I. General Information
A. Does this action apply to me?
This final rule will 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 25,000 industrial
facilities in 20 different industries (at
the 2-digit North American Industry
Classification System (NAICS) code
level). An estimated 7,483 of these
facilities are large quantity generators
(LQG). 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 69% of the affected
LQG universe, and manufacturing
(NAICS code 31–33), representing 17%
of the affected LQG universe. Potentially
affected categories and entities include,
but are not necessarily limited to:
Total affected
large quantity
generators
2 Digit NAICS
code
Primary NAICS description
44–45 ................
31–33 ................
48–49 ................
62 ......................
81 ......................
92 ......................
61 ......................
54 ......................
42 ......................
22 ......................
56 ......................
...........................
Retail Trade ..................................................................................................................
Manufacturing ...............................................................................................................
Transportation and Warehousing .................................................................................
Health Care and Social Assistance .............................................................................
Other Services (except Public Administration) ............................................................
Public Administration ....................................................................................................
Educational Services ....................................................................................................
Professional, Scientific, and Technical Services .........................................................
Wholesale Trade ..........................................................................................................
Utilities ..........................................................................................................................
Administrative and Support and Waste Management and Remediation Services .....
All Other NAICS Codes ...............................................................................................
5,194
1,238
168
184
169
113
116
89
75
40
51
46
303
7,771
1,033
13
4
190
32
16
511
14
1,906
49
Total ...........
.......................................................................................................................................
7,483
11,843
This table is not intended to be
exhaustive, but rather provides a guide
for readers regarding entities likely to 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 V
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 adding hazardous waste aerosol
cans to the list of universal wastes
regulated under the RCRA regulations.
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This revision will 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 promulgated
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. 6922,
6923, 6924, 6925, 6930, and 6937.
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D. What are the incremental costs and
benefits of this action?
This final action is estimated to result
in an annual cost savings of $5.3 million
to $47.8 million. Information on the
estimated economic impacts of this
action is presented in section VIII of this
document, as well as in the Regulatory
Impact Analysis (RIA) available in the
docket for this final action. 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. List of Acronyms
CFR
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DOT Department of Transportation
EPA Environmental Protection Agency
E.O. Executive Order
FR Federal Register
LQG Large Quantity Generator
LQHUW Large Quantity Handler of
Universal Waste
NAICS North American Industry
Classification System
NODA Notice of Data Availability
OMB Office of Management and Budget
RCRA Resource Conservation and Recovery
Act
SQG Small Quantity Generator
SQHUW Small Quantity Handler of
Universal Waste
TSDF Treatment, Storage and Disposal
Facility
VSQG Very Small Quantity Generator
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III. Background
A. Summary of Proposal
On March 16, 2018, EPA published
the proposal to add aerosol cans to the
Federal universal waste program (83 FR
11654). EPA’s proposal recognized that
inclusion of this common waste stream
as universal waste could better ensure
that aerosol cans are managed
appropriately at the end of their lives,
remove these wastes from the municipal
waste stream, potentially encourage
recycling, and reduce unnecessary
burden for generators.
In its proposal, EPA analyzed the
factors for inclusion of a waste stream
in the universal waste program and took
public comment on its conclusions. In
addition, EPA defined what materials
would qualify as aerosol cans for the
purposes of management as universal
waste. EPA proposed management
standards for handlers of these materials
and took public comment on the
proposed standards.
In addition to the universal waste
management standards that apply to all
universal waste handlers, such as
labeling and marking, accumulation
time limits, employee training,
responses to releases, export
requirements, and, for large quantity
handlers of universal waste, notification
and tracking, EPA proposed specific
standards that relate to the puncturing
and draining of aerosol cans.
EPA proposed that puncturing and
draining of aerosol cans be conducted
by a commercial device specifically
designed to safely puncture aerosol cans
and effectively contain the residual
contents as well as any emissions from
the puncturing and draining activities.
In addition, EPA proposed that handlers
establish written procedures for safely
puncturing and draining universal
waste aerosol cans and ensure that
employees operating the device be
trained in the proper procedures. EPA
proposed that puncturing of aerosol
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cans be done in a manner designed to
prevent fires and releases and that any
residuals from puncturing cans be
transferred to a tank or container, at
which point the handler must make a
hazardous waste determination on the
residuals, as required in 40 CFR 262.11.
The proposal also included that written
procedures be in place in the event of
a spill or release, that a spill clean-up
kit be provided, and that any spills or
leaks be cleaned up promptly.
In addition to these proposed
standards, EPA analyzed the existing
state universal waste programs that
include aerosol cans and requested
comment on including further
limitations on puncturing and draining
of cans that might contain materials that
pose an incompatibility hazard with
other materials or establishing further
limits on which types of handlers are
allowed to puncture and drain aerosol
cans within the universal waste
program.
EPA has analyzed all the comments
received in response to its proposed rule
and responds to those comments in this
final rule or in the Response to
Comment document available in the
docket for this rulemaking.
B. 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 Household and
Commercial Products Association
estimates that 3.75 billion aerosol cans
were filled in the United States in 2016
for use by commercial and industrial
facilities as well as by households.1
A typical aerosol can consists of
several components, including (but not
limited to) the following: (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
1 Household and Commercial Products
Association, Aerosol Products Survey Shows
Strong, Stable Industry, May 2017. https://
www.thehcpa.org/aerosol-products-survey-showsstrong-stable-industry/ retrieved October 21, 2019.
2 National Aerosol Association, History of the
Aerosol, https://www.nationalaerosol.com/historyof-the-aerosol/, retrieved December 11, 2017.
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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. If the
propellant or product is 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.’’ In addition,
the bottom of the can may detach as a
result of a manufacturing defect or an
external force, potentially causing the
upper part of the can to become a
projectile.
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).
C. Current Federal Regulation of Aerosol
Cans
1. Regulation of Aerosol Cans Under
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 waste or
3 University of Vermont, Paint and Aerosol
Safety, https://www.uvm.edu/safety/art/paintaerosol-safety, retrieved December 11, 2017.
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exhibit other hazardous waste
characteristics.4
Until this rulemaking goes into effect,
many, but not all, generators of aerosol
cans identified or listed as a hazardous
waste have been 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, pretransport, and manifesting. Under 40
CFR 262.14, 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, until
this rulemaking goes into effect,
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
4 Aerosol cans that have not been discarded are
not solid or hazardous wastes.
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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and BB of 40 CFR part 264 or 265, or
subject to part 267.
2. Regulation Under the Federal
Insecticide, Fungicide, and Rodenticide
Act
Hazardous waste aerosol cans that
contain pesticides are also subject to the
requirements of the 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
issued a determination that puncturing
aerosol pesticide containers in the
process of recycling aerosol cans is
consistent with the purposes of FIFRA.
The purpose of the label prohibiting
puncturing of pesticide-containing
aerosol cans is to protect the ordinary
users of pesticides from the hazards of
pressurized containers. The hazards
associated with recycling aerosol
pesticide containers are adequately, and
more appropriately, addressed under
Federal, state and local laws concerning
solid and hazardous wastes and
occupational safety and health. Such
puncturing 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.7
D. 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
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, Docket ID# EPA–HQ–OLEM–2017–
0463–0007.
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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 them 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. This
final rule, which adds aerosol cans to
the Federal universal waste program,
completes EPA’s commitment in the
Retail Strategy to explore this option.
Further, with this action, EPA has
completed all commitments made in the
Retail Strategy.
E. 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
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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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 limit 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.
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, states
implementing the universal waste
program 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.
F. State Universal Waste Programs That
Include Aerosol Cans
Five states—California, Colorado,
New Mexico, Ohio, and Utah—already
have universal waste aerosol can
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programs in place, and Minnesota plans
to propose to add aerosol cans to their
universal waste regulations in 2019.9
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 five
current state universal waste programs
set standards for puncturing and
draining of aerosol cans by universal
waste handlers.
The aerosol can universal waste
programs in California, Colorado, New
Mexico, Ohio, and Utah allow for
puncturing and draining of aerosol cans
by universal 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. Guidance
in effect in Minnesota at the time of
publication of this final rule also allows
handlers to puncture and drain their
aerosol cans.
IV. Rationale for Including Aerosol
Cans in the Universal Waste Rule
A. Factors for Inclusion in the Universal
Waste Rule
EPA is adding aerosol cans to the list
of universal wastes because this waste
meets the factors found at 40 CFR
273.81 that describe hazardous waste
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 universal waste
aerosol cans are sent to the appropriate
destination facilities, where they will be
managed as a hazardous waste with all
applicable Subtitle C requirements to
ensure protection of human health and
the environment. Management as
universal waste under the final
requirements is also expected to
facilitate environmentally sound
9 See supporting document number 0004 in the
docket for this rulemaking (EPA–HQ–RCRA–2017–
0463). See also Minnesota Pollution Control Agency
2016, Public Rulemaking Docket, https://
www.pca.state.mn.us/sites/default/files/mm-rule100.pdf, retrieved August 21, 2019.
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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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 including in the
regulations as a universal waste. 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 to be a universal
waste. 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 the weight of evidence
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 proposed rule and the public
comments on the 2014 Retail NODA
using the criteria in 40 CFR 273.81.11 In
light of its evaluation of this
information, the Agency has determined
that on balance, hazardous waste
aerosol cans meet the factors in 40 CFR
273.81 warranting inclusion on the
Federal list of universal wastes for
management under part 273. EPA
received numerous comments on the
proposed rule agreeing that aerosol cans
are appropriate for inclusion in the
Universal Waste Rule. EPA believes that
adding aerosol cans to the list of
universal wastes will 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.
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 exhibit another hazardous
characteristic per 40 CFR part 261,
subpart C, and may also be a P- or U11 Public comments on the 2014 Retail NODA can
be found in docket number EPA–HQ–RCRA–2012–
0426.
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listed hazardous waste found at 40 CFR
261.33(e) or (f).
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 RIA for
this final rule that large and small
quantity generators managing hazardous
waste aerosol cans can be found in 20
different industries (at the 2-digit
NAICS code level). Thus, aerosol cans
are commonly generated by a wide
variety of types of establishments,
including 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
25,000 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 that 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 2017, LQGs
generated an average of 1.6 tons per year
each (approximately 3,600 cans).
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4. Systems to Be Used for Collecting the
Waste (Including Packaging, Marking,
and Labeling Practices) Would Ensure
Close Stewardship of the Waste (40 CFR
273.81(d))
The baseline universal waste
requirements of notification, labeling,
training, and response to releases found
in 40 CFR part 273, subparts B and C,
and the final specific requirements for
management of aerosol cans in 40 CFR
273.13 and 40 CFR 273.33, discussed in
section V, are designed to ensure close
stewardship of the hazardous waste
aerosol cans.
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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 periods of
storage and transportation as they move
from the manufacturer to the retailer,
and ultimately to the final customer.
Because of their design, hazardous
waste aerosol cans present a relatively
low risk compared to other types of
hazardous waste that are not contained
as-generated under normal management
conditions and the risk posed by intact
waste aerosol cans during storage and
transport is similar to the risk posed by
intact product aerosol cans. Retail and
other entities that generate waste aerosol
cans are accustomed to safely handling
aerosol can products. In addition, the
ignitability risk posed during
accumulation and transport is addressed
by standards set by local fire codes, the
Office of Safety and Health
Administration, and the Department of
Transportation (DOT).12 These
standards include requirements for
outer packaging, can design, and general
pressure conditions.
Finally, the Agency has determined
that the requirements of the universal
waste program are effective in
mitigating risks posed by hazardous
waste aerosol cans. Specifically, the
requirements for handlers to accumulate
aerosol cans in a container that is
structurally sound and compatible with
the contents of the aerosol cans will
ensure safe management and transport.
In addition, the universal waste program
requires proper training for employees
when handling universal waste,
responding to releases, and shipment in
accordance with DOT regulations. These
requirements will make the risks posed
during accumulation and transport low.
Additionally, the final specific
requirements for management of aerosol
cans that are punctured and drained at
the handler, described in section V,
address the ignitability risk and are
designed to help prevent releases. Thus,
the specific aerosol can universal waste
management standards address the risks
posed by hazardous waste aerosol cans.
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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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 final rule it will be
more economical to send hazardous
waste aerosol cans for recycling for
recovery of metal values. The final rule
will advance the RCRA goal of increased
resource conservation and increase
proper disposal of hazardous waste,
making it less likely that aerosol cans
will be sent for improper disposal in
municipal landfills or municipal
incinerators. In addition, because the
streamlined structure of the universal
waste regulations 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 will be more easily
collected and consolidated for
hazardous waste disposal. This waste
will 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 of 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
inclusion 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
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easily send this waste for proper
management. Therefore, adding aerosol
cans to the list of universal wastes
would offer a protective hazardous
waste management system that is likely
to be more accessible, particularly for
the retail sector, which can face unique
compliance challenges as compared to
manufacturing and other ‘‘traditional’’
RCRA-regulated sectors.13
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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
The factors included in 40 CFR 273.81
are designed to determine whether
regulating a particular hazardous waste
under the streamlined standards for
universal waste would improve the
overall management of the waste; 40
CFR 273.81(h) includes other factors as
may be appropriate. Under 40 CFR
273.81(h), EPA considered states’
experience of already managing aerosol
cans under state universal waste
programs. As discussed in section III,
five states have added aerosol cans to
their universal waste programs, and
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
add aerosol cans to the national
universal waste program.
Information supplied to EPA from
officials in those five states indicates
that their programs improve the
implementation of the hazardous waste
program. Specifically, waste
management officials from the four
states whose programs were operating at
the time of the proposed rule 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 enforcing
compliance with the standards.
Accordingly, this information weighs in
favor of concluding that management of
aerosol cans under the Federal universal
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,
retrieved on January 24, 2018.
14 See supporting document number 0004 in the
docket for this rulemaking (EPA–HQ–RCRA–2017–
0463).
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waste regulations is likely to be
successful.
B. Expected Changes in Management of
Aerosol Cans
EPA expects that under this final rule,
the number of aerosol cans that are
diverted from municipal solid waste
landfills and incinerators to recycling or
disposal in Subtitle C facilities will
increase. Small and large quantity
generators are already required to
manage their hazardous waste aerosol
cans under RCRA Subtitle C. Following
implementation of this rule, some of
these generators will 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 generators to arrange for
hazardous waste recycling or disposal of
these materials when they are generated.
Because the streamlined structure of the
universal waste standards 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. EPA intends to
encourage individual households and
VSQGs to participate in such programs.
In summary, EPA believes that
management of hazardous waste aerosol
cans will best be implemented through
a universal waste approach where
handlers are operating within a simple,
streamlined management system. 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.
V. Discussion of Final Rule
A. Waste Covered by Final Rule
1. Definition of Aerosol Can
a. Discussion of Proposed Rule
EPA proposed that an ‘‘aerosol can’’
be defined as an ‘‘intact container in
which gas under pressure is used to
aerate and dispense any material
through a valve in the form of a spray
or foam.’’ This definition is the same as
the definition of aerosol can in the
California, Colorado, New Mexico and
Utah universal waste programs, with the
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exception of a twenty-four ounce size
limit in Utah’s definition of aerosol can.
EPA proposed to adopt this definition of
aerosol can to be consistent with the
existing state programs.
This proposed definition was
intended 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. EPA also
requested comment on limiting the
definition of aerosol cans to those under
twenty-four ounces, consistent with
Utah’s aerosol can universal waste
program.
b. Summary of Comments
Several commenters recommended
that EPA model the definition of aerosol
can after language used in the DOT
regulations in 49 CFR 171.8 and U.N.
Model Regulations. An aerosol is
defined in 49 CFR 171.8 as an article
consisting of any non-refillable
receptacle containing a gas compressed,
liquefied, or dissolved under pressure,
the sole purpose of which is to expel a
liquid, paste, or powder and fitted with
a self-closing release device allowing
the contents to be ejected by the gas.
Commenters noted that, in addition to
harmonizing the RCRA regulations with
DOT requirements, this language would
be more inclusive, making it clear that
aerosol cans containing products that
are not dispensed as a spray or foam,
such as aerosol cans that dispense
product in the form of paste or powder,
may be managed as universal waste. In
addition, this definition would address
the risk of gas cylinders if managed as
universal waste, since those cylinders
would not be considered ‘‘non-refillable
receptacles’’ with a ‘‘self-closing release
device’’ and therefore not eligible to be
managed as universal waste under the
alternative wording.
Most commenters supported EPA’s
proposal to exclude compressed gas
cylinders from the definition of
universal waste aerosol can, noting that
such devices pose a higher risk than
aerosol cans pose. Two industry
commenters requested that compressed
gas cylinders be included as universal
waste, with one commenter asserting
that ‘‘as long as facilities have
procedures in place to safely
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depressurize these devices, potential
risks can be mitigated.’’ 15
Finally, most commenters (including
industry, most states, and local
government) supported EPA’s proposal
to not set a specific size limit on aerosol
cans. One state association and a few
individual states did support limiting
the size of aerosol cans to twenty-four
ounces.
Finally, the proposed rule also
proposed to exclude aerosol cans that
show evidence of leakage, spillage, or
damage that could cause leakage under
reasonably foreseeable conditions. This
proposed rule language would mean
that hazardous waste aerosol cans that
are not intact would continue to be
subject to the full hazardous waste
standards.
c. Final Rule Provisions
b. Summary of Comments
Several commenters requested that
EPA allow leaking and damaged aerosol
cans to be managed as universal waste.
Commenters point out that the rules for
other types of universal wastes (lamps,
pesticides, batteries, mercury-containing
equipment) allow damaged or leaking
items to be managed as universal waste
as long as they are in an appropriate
container (e.g., overpacked with
absorbents). Commenters were
concerned that determining whether an
aerosol can shows ‘‘evidence of leakage,
spillage, or damage that could cause
leakage under reasonably foreseeable
conditions’’ is a subjective standard that
would be confusing to implement.
Commenters noted that Colorado allows
damaged aerosol cans to be managed as
universal waste as long as they are
managed in a separate individual
container and that Ohio allows damaged
aerosol cans to be managed as universal
waste as long as they are overpacked
with absorbents or immediately
punctured to remove the contents of the
can.
EPA is finalizing a definition of
‘‘aerosol can’’ that is consistent with
language in the DOT regulations.16 In
the final rule, aerosol can is defined as
a non-refillable receptacle containing a
gas compressed, liquefied or dissolved
under pressure, the sole purpose of
which is to expel a liquid, paste, or
powder and fitted with a self-closing
release device allowing the contents to
be ejected by the gas. Using language
from the DOT regulation will help
ensure consistency across Federal
regulatory programs, avoid
unnecessarily narrowing the scope of
the rule to aerosol cans that aerate their
product, and will not inadvertently
include compressed gas cylinders in the
definition of aerosol can. Because
compressed gas cylinders, unlike
aerosol cans, require special procedures
to safely depressurize, it would not be
appropriate to include them in the final
rule. Finally, because the DOT language
is more inclusive than the proposed
language, it better matches the intent of
the proposal to apply to all types of
aerosol cans, including cans that
dispense product in the form of paste or
powder, and would not require states
that have already added aerosol cans to
their universal waste program to change
their regulations.
2. Applicability
a. Discussion of Proposed Rule
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The proposed rule excluded from the
universal waste requirements those cans
that are not yet a waste under 40 CFR
part 261 and those cans that are not
hazardous waste. In addition, at
proposed 40 CFR 273.6(b)(1)–(3), the
proposal specifically excluded aerosol
cans that have been emptied of their
contents (both propellant and product).
Aerosol cans that fall under these
categories would not be subject to
hazardous waste requirements or
universal waste requirements.
15 See comment number 0088 in the docket for
this rulemaking (EPA–HQ–RCRA–2017–0463).
16 The DOT definition is also similar to the
definition used in U.N. Model regulations. EPA
chose the DOT version in order to promote
consistency between the U.S. Federal regulatory
programs.
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c. Final Rule Provisions
EPA is finalizing as proposed the
language in 40 CFR 273.6(b)(1)–(3).
These provisions designate aerosol cans
that are not subject to hazardous waste
requirements because they are either not
solid waste, not hazardous waste, or
they met the definition of empty
container in 40 CFR 261.7.
However, EPA is not finalizing the
proposed language in 40 CFR
273.6(b)(4), which would have barred
leaking or damaged aerosol cans from
being managed as universal waste,
instead leaving such cans subject to 40
CFR part 262 hazardous waste
requirements. Rather, EPA is requiring
that universal waste aerosol cans that
show evidence of leakage must be
packaged in a separate closed container
or overpacked with absorbents, or
immediately punctured and drained in
accordance with the aerosol can
universal waste requirements. (See 40
CFR 273.13(e)(2) and 40 CFR
273.33(e)(2)).
EPA agrees with those commenters
who indicated that such an approach is
more consistent with how other
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universal wastes are regulated and how
the states that currently regulate aerosol
cans as universal waste operate their
programs. In addition, setting specific
protective management standards for
leaking aerosol cans under the universal
waste regulations would ensure the risk
from these cans is addressed and that
they are ultimately sent to appropriate
destination facilities per 40 CFR 273.18
and 40 CFR 273.38 instead of
potentially being diverted to municipal
waste streams as VSQG waste per the
requirements in 40 CFR 262.14. Such an
approach is also consistent with DOT
requirement that aerosols that are
damaged, defective, or leaking to the
point where they do not meet applicable
design standards be transported in
special aerosol salvage drums. See 49
CFR 173.306(k)(2).
3. Comments and Responses Related to
‘‘Emptied’’ Aerosol Cans
a. Comment: Empty Aerosol Cans
Should be Allowed To Be Managed as
Universal Waste
Summary of Comments. Several
commenters requested that EPA clarify
that handlers should be able to continue
to manage their punctured and drained
aerosol cans as a universal waste and
send them to another handler or
destination facility. The proposed
§ 273.6(b)(3) designated aerosol cans
that meet the standard for empty
containers under § 261.7 of the chapter
as being excluded from universal waste
requirements, and the proposed
definition for aerosol cans included the
requirement that they be ‘‘intact,’’
implying that punctured aerosol cans
would not meet the definition.
Commenters stated that including
empty aerosol cans would provide a
clear decision process for generators to
include all aerosol cans—empty, full, or
partially full—for proper handling and
disposal as universal waste. However,
commenters noted it would not be
necessary to require empty aerosol cans
to be managed under the universal
waste regulations because generators
may still want to manage empty aerosol
cans as scrap metal for recycling.
EPA Response. EPA agrees that while
aerosol cans that meet the standard for
empty containers found at 40 CFR 261.7
should not be required to meet the
universal waste requirements, they also
should not be barred from being
managed as universal waste if a handler
chooses to do so. Residues in empty
containers that meet the requirements of
40 CFR 261.7 are not subject to RCRA
hazardous waste requirements.
However, a handler is nevertheless
allowed under the regulation to manage
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aerosol cans that meet the empty
container standards as universal waste if
they would prefer to do so. Likewise,
non-hazardous aerosol cans may be
managed as universal waste, although
they are not required to be managed as
such. EPA notes that the final definition
of aerosol can is based on the DOT
definition and no longer specifies that
the cans must be ‘‘intact,’’ thus
removing a potential source of
confusion.
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b. Comment: Additional Guidance
Needed on How To Determine if an
Aerosol Can Meets the Empty Container
Standard
Summary of Comments. Several
commenters suggested that EPA provide
additional guidance on how to
determine if an aerosol can meets the
empty container standard found at 40
CFR 261.7. One commenter suggested
that EPA adopt guidance used by the
State of Minnesota which recognizes an
aerosol can as ‘‘empty’’ when (1) the
container contains no compressed
ignitable gas propellant or product; (2)
all liquid product that can be dispensed
through the valve has been; and (3) less
than 3% of the product capacity of the
container remains. Minnesota’s
guidance also recognizes that
documenting that an aerosol can meets
this standard can be impractical and
therefore provides that aerosol cans may
be assumed empty when both of the
following criteria are satisfied: (1) No
liquid is felt or heard when the can is
shaken by hand; and (2) no gas or liquid
is released when the spray/discharge
valve is activated and the container is
rotated through all directions, and the
valve is not observably or known to be
clogged.17 Another commenter
suggested that EPA add a provision to
40 CFR 261.7 stating that an aerosol can
is empty when it has been punctured
and drained. The commenter stated that
this provision should apply to cans that
hold characteristic or listed wastes.18
EPA Response. Under 40 CFR
261.7(b),19 a container that has held
non-acute hazardous waste is ‘‘empty’’
if (1) all wastes have been removed that
can be removed using the practices
commonly employed to remove
materials from that type of container,
e.g., pouring, pumping, and aspirating
(applicable in all cases), and (2) no more
17 See comment number 0086 in the docket for
this rulemaking (EPA–HQ–RCRA–2017–0463).
18 See comment number 0085 in the docket for
this rulemaking (EPA–HQ–RCRA–2017–0463).
19 EPA did not request comment on or otherwise
reopen the empty container provisions of 40 CFR
261.7 and comments requesting changes to the
empty container regulations are outside the scope
of this rule.
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than 2.5 centimeters (one inch) of
residue remains on the bottom of the
container or inner liner, or (3) no more
than 3 percent by weight of the total
capacity of the container remains in the
container or inner liner if the container
is less than or equal to 119 gallons in
size. In addition, a container that has
held a hazardous waste that is a
compressed gas is empty when the
pressure in the container approaches
atmospheric pressure.
In the case of a container that has held
an acute hazardous waste listed in 40
CFR 261.31 or 261.33(e), the container
is considered empty when it has been
triple rinsed or has been cleaned by
another method that has been shown in
scientific literature, or by tests
conducted by the generator to achieve
equivalent removal, per 40 CFR
261.7(b)(3). EPA also considers a
container that has held an acute
hazardous that is a compressed gas to
meet the definition of empty when it
approaches atmospheric pressure, as
defined in 40 CFR 261.7(b)(2).20 EPA is
not aware of a chemical commonly
found in aerosol cans that would be
listed as an acute hazardous waste, but
if such an aerosol can product does
exist, it would have to meet the 40 CFR
261.7(b)(2) or (3) standard to be
considered ‘‘empty’’ under the
regulations. The commenter request for
a revision to 40 CFR 261.7 that would
allow aerosol cans that have held
acutely hazardous waste to be disposed
of without meeting the current standard
in 40 CFR 261.7(b)(3) when punctured
and drained is being beyond the scope
of this rulemaking.
However, in the case of aerosol cans
being recycled, rather than disposed of,
aerosol cans that have been punctured
and drained prior to recycling are
considered exempt scrap metal under 40
CFR 261.6(a)(3)(ii), and therefore all
such punctured cans would be exempt
from hazardous waste requirements
when recycled.
aerosol can must be RCRA empty, per
40 CFR 261.7, to be classified as exempt
scrap metal. The commenter stated that
an aerosol container does not need to be
completely empty or triple rinsed (if it
held a P-listed waste) to be classified
and recycled as scrap metal. However,
it is a good management practice to
remove as much of the waste from the
aerosol can as possible.
EPA Response. Under 40 CFR 261.1,
‘‘scrap metal’’ is defined as bits and
pieces of metal parts (e.g., bars,
turnings, rods, sheets, wire) or metal
pieces that may be combined together
with bolts or soldering (e.g., radiators,
scrap automobiles, railroad box cars),
which when worn or superfluous can be
recycled. Under 40 CFR 261.6(a)(3)(ii),
exempt scrap metal is not subject to
regulation under parts 262 through 268,
part 270, or part 124, and is not subject
to the notification requirements of
section 3010 of RCRA.
However, an aerosol can that still
contains hazardous liquid and/or
hazardous compressed gas would not
meet the definition of scrap metal and
would not be eligible for the scrap metal
exemption. As EPA has clearly stated,
materials containing significant
amounts of liquid cannot be eligible to
be exempt scrap metal.21 Thus while
EPA agrees that aerosol cans do not
need to be triple rinsed prior to being
recycled as scrap metal, they do need to
have their contents removed to be
considered scrap metal.
c. Comment: EPA Should Clarify That
an Aerosol Can Does Not Need To Be
‘‘Empty’’ To Be Exempt Scrap Metal
Summary of Comments. One
commenter noted that EPA said in the
proposed rule that aerosol containers
that meet the definition of empty in 40
CFR 261.7 are not subject to hazardous
waste regulation and may be recycled as
scrap metal. They found this statement
misleading because it implies that the
d. Comment: Universal Waste Handlers
Should Not Be Required To Make a
Hazardous Waste Determination on the
Emptied Cans
Summary of Comments. One
commenter noted that 40 CFR
273.13(e)(3)(v) and 273.33(e)(3)(v) of the
proposed rule require that the universal
waste handler ‘‘Conduct a hazardous
waste determination on the emptied
aerosol can and its contents per 40 CFR
262.11.’’ While the commenter agreed
on the need for a hazardous waste
determination to be made on the
contents, they stated that requiring it for
the emptied cans contradicts prior EPA
guidance regarding scrap metal. The
proposed rule only allows for
puncturing of cans on the condition that
the empty punctured aerosol cans be
recycled. EPA has previously stated that
a formal hazardous waste determination
is not required for scrap metal being
recycled under 40 CFR 261.6(a)(3)(ii).22
20 EPA first explained this interpretation in 2017.
See U.S. EPA 2017 RCRA Regulatory Status of
Permeation Device, Memo from Barnes Johnson,
Director, Office of Resource Conservation and
Recovery to Alex Chaharom, GeNO LLC, February
9, 2017. RO# 14887
21 EPA 1985 Definition of Solid Waste Final Rule,
50 FR 614 at 624–625, January 4, 1985.
22 EPA 1993 Memorandum from Jeffrey D. Denit,
Acting Director, Office of Solid Waste to Gregory L.
Crawford. Regulatory Status of Used Residential
And Commercial/Industrial Aerosol Cans, October
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EPA response. EPA agrees with the
comment and has removed the language
in 40 CFR 273.13(e)(3)(v) and
273.33(e)(3)(v) requiring a waste
determination to be made on the
emptied aerosol can destined for
recycling.
B. Management Requirements for
Aerosol Cans
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1. Requirements for Small and Large
Quantity Handlers
Under the final rule, the existing
universal waste requirements currently
applicable to small quantity handlers of
universal waste (SQHUW) and large
quantity handlers of universal waste
(LQHUW) are also applicable to
handlers of discarded aerosol cans.23
For both SQHUWs and LQHUWs, these
requirements include waste
management standards, labeling and
marking, accumulation time limits,
employee training, responses 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
finalizing in 40 CFR 273.14 and 273.34
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 finalizing that
small and large quantity universal waste
handlers must follow certain specific
management standards while handling
their universal waste aerosol cans.
Under the final rule, all handlers must
manage their universal waste aerosol
cans in a manner designed to prevent
releases to the environment. This
management 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. The accumulation
requirements in this final rule are
similar to the existing accumulation
requirements for small and large
quantity universal waste handlers for
other types of universal waste in 40 CFR
7, 1993, RO#11782; EPA 1994; Memorandum from
to Michael H. Shapiro, Director, Office of Solid
Waste, to Michael C. Campbell, Regulatory Status
of Waste Aerosol Cans, January 1, 1994, RO#11806.
23 Note that EPA did not ask for comment or
otherwise reopen the pre-existing universal waste
requirements that will now also apply to universal
waste aerosol cans. Comments on the pre-existing
universal waste requirements are beyond the scope
of this rulemaking.
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273.13 and 273.33 and are found in new
paragraph (e) of each of these sections.
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 when
the emptied cans are to be recycled, as
described below.
Other than the comments on the
requirements for puncturing and
draining at small and large quantity
handlers, which are described below,
EPA received few comments on the
requirements for small and large
quantity universal waste handlers. One
state association urged EPA to place
limits on the accumulation
requirements for universal waste
handlers by requiring separation of
incompatible wastes because of the
wide array of products aerosol cans
contain.24 EPA is finalizing the
performance-based standard that
handlers must manage their universal
waste aerosol cans in a manner that
prevents releases, but EPA is not
requiring separation of specific types of
aerosol cans whose contents may pose
an incompatibility risk because EPA
expects the intact aerosol cans will
ensure the contents of these cans will
not mix and therefore will not pose
incompatibility risks. In addition, EPA
is requiring that universal waste aerosol
cans that show evidence of leakage must
be packaged in a separate closed
container or overpacked with
absorbents, or immediately punctured
and drained in accordance with the
aerosol can universal waste
requirements. (See 40 CFR 273.13(e)(2)
and 40 CFR 273.33(e)(2)), thus removing
the risk of incompatible contents mixing
during storage and transport.
A waste management industry
commenter suggested EPA require that
handlers accumulate universal waste
aerosol cans in strong outer packaging
that will not be allowed to build
pressure, that the contents of the aerosol
cans are compatible, and that protective
caps are in place or valve stems are
removed to prevent the accidental
release of the contents of the aerosol
cans during storage and handling.25 EPA
is finalizing, as proposed, the
performance-based standards that
require the aerosol cans to be
accumulated in containers that are
structurally sound and compatible with
the contents of the cans. EPA is not
requiring handlers to remove the
actuators to reduce the risk of accidental
release but is allowing handlers to do so
prior to accumulation if they choose.
A state commenter suggested that EPA
include more specific safety measures to
address the risk of cans bursting when
exposed to excessive heat during
accumulation, regardless of whether the
handler punctures and drains the
universal waste aerosol cans.26 In order
to address this risk, EPA added language
to 40 CFR 273.13(e)(1) and 40 CFR
273.33(e)(1) to require the universal
waste aerosol cans be accumulated in a
container that is protected from sources
of heat. Sources of heat include, but are
not limited to, open flames; lighting;
smoking; cutting and welding; hot
surfaces; frictional heat; static,
electrical, and mechanical sparks; and
heat-producing chemical reactions.27
For example, handlers should not allow
smoking or open flames near containers
accumulating universal waste aerosol
cans. It is the responsibility of the
operator to ensure that the containers
accumulating universal waste aerosol
cans are protected from sources of heat.
24 See comment number 0073 in the docket for
this rulemaking (EPA–HQ–RCRA–2017–0463).
25 See comment number 0063 in the docket for
this rulemaking (EPA–HQ–RCRA–2017–0463).
26 See comment number 0085 in the docket for
this rulemaking (EPA–HQ–RCRA–2017–0463).
27 This list is derived from OSHA’s definition of
‘‘sources of ignition’’ in 29 CFR 1910.106(h)(7)(i)(a).
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2. Requirements on Puncturing and
Draining at Small and Large Quantity
Handlers
a. Summary of Proposal
EPA proposed specific management
standards for the puncturing and
draining of aerosol cans at universal
waste handlers, similar to the
requirements being implemented in
states that added aerosol cans to their
list of universal waste. EPA proposed
that puncturing and draining activities
be conducted by a device specifically
designed to safely puncture aerosol cans
and effectively contain the residual
contents and any emissions thereof.
EPA proposed that handlers must
establish a written procedure detailing
how to safely puncture and drain
universal waste aerosol cans (including
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 on site, and ensure that
employees operating the devices are
trained in the proper procedures.
EPA also proposed 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 so as to
minimize human exposure. This
included, but was not limited to,
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locating the equipment on a solid, flat
surface in a well-ventilated area.
In addition, EPA proposed that the
contents from the cans should be
immediately transferred from the waste
aerosol cans 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. If the contents are
hazardous waste, the handler becomes
the hazardous waste generator of the
hazardous aerosol can contents and
must manage those wastes in
accordance with applicable RCRA
regulations.
The proposed rule also required that
a written procedure 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 must be cleaned
up promptly.
EPA requested comment on
establishing further limitations on the
puncturing and draining of aerosol cans
that may contain wastes incompatible
with the puncturing and draining
equipment or the contents of other cans
being drained. EPA also requested
comment on limiting puncturing and
draining 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. Handlers that are off-site
commercial processors could 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, off-site
commercial processors that would like
to puncture and drain aerosol cans
would have to first meet the
requirements for a universal waste
destination facility (e.g., obtaining a
permit for the storage of the hazardous
waste aerosol cans prior to recycling).
b. Summary of Comments
The most frequent comment EPA
received on puncturing and draining
was on limiting handlers from
puncturing and draining aerosol cans
received from off-site handlers. For
example, waste management industry
commenters and some state commenters
requested that EPA not allow off-site
handlers to puncture and drain aerosol
cans collected from other handlers
unless they first meet the requirements
for a universal waste destination
facility.28 On the other hand, an
industry commenter and a state
28 See comment numbers 0063, 0074, 0085, and
0091 in the docket for this rulemaking (EPA–HQ–
RCRA–2017–0463).
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commenter requested that EPA not limit
which handlers can puncture and drain
aerosol cans.29 Multiple industry
commenters requested that, at a
minimum, if EPA limits off-site
handlers from puncturing and draining,
EPA still allow off-site handlers to
puncture and drain aerosol cans
collected from other handlers in the
same company or handlers that are
related entities.30
EPA also received numerous
comments on the specific management
standards for the puncturing and
draining of aerosol cans at universal
waste handlers. EPA received broad
comments from industry commenters
supporting the proposed standards for
the puncturing and draining of aerosol
cans as sufficient and arguing that
further limitations are not necessary.31
EPA also received specific suggestions
from industry commenters on the
management standards. For example,
one commenter recommended that EPA
should not place additional limitations
on puncturing and draining designed to
address potential incompatibility
concerns because they are not
necessary.32 On the other hand, one
state requested that EPA prohibit
handlers from puncturing and draining
aerosol cans with possible
incompatibility with the puncturing and
draining equipment or the contents of
other cans being drained.33
State associations commented that
EPA should require puncturing and
draining to be conducted in a
commercially-manufactured device and
not allow handlers to use ‘‘homemade’’
devices.34 A commenter from the waste
management industry argued that there
is no basis for requiring puncturing and
draining to be conducted in a
commercial device and pointed out that
many companies have designed and
operated their own equipment for such
purposes based on their engineering
expertise.35
Commenters also asked for the
requirement that puncturing and
draining activities be conducted in a
29 See comment numbers 0029 and 0080 in the
docket for this rulemaking (EPA–HQ–RCRA–2017–
0463).
30 See comment numbers 0077, 0087, and 0093 in
the docket for this rulemaking (EPA–HQ–RCRA–
2017–0463).
31 See comment numbers 0075 and 0083 in the
docket for this rulemaking (EPA–HQ–RCRA–2017–
0463).
32 See comment number 0087 in the docket for
this rulemaking (EPA–HQ–RCRA–2017–0463).
33 See comment number 0077 in the docket for
this rulemaking (EPA–HQ–RCRA–2017–0463).
34 See comment numbers 0073 and 0085 in the
docket for this rulemaking (EPA–HQ–RCRA–2017–
0463).
35 See comment number 0074 in the docket for
this rulemaking (EPA–HQ–RCRA–2017–0463).
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device designed to effectively contain
the residual contents and emissions to
be clarified.36 Specifically, commenters
requested EPA clarify what ‘‘effectively
contain’’ means in relation to emissions
and what constitutes breakthrough.37 A
state association commenter wrote that
the only way to ensure the puncturing
and draining activities are containing
emissions it to implement an air
monitoring program or to ensure the
devices are equipped with ‘‘end of life’’
filters that show when breakthrough is
occurring.38 An industry commenter
wrote that a requirement that allows for
no breakthrough is not practical, but
that handlers can maximize collection
of emissions by following manufacturer
instructions.39
EPA also received comments from
state associations urging EPA to require
handlers that puncture and drain to
establish and follow a written procedure
detailing how to safely puncture aerosol
cans rather than only require handlers
to establish a written procedure as
proposed.40 Commenters also pointed
out that it is common practice to operate
puncturing and draining devices on
spill catchment pallets to aid in
capturing accidental leaks or spills and
asked EPA to allow this under the final
rule.41
c. Final Rule Provisions
EPA expects puncturing and draining
activities at universal waste handlers
will differ from those currently
performed by hazardous waste
generators. Because handlers 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
universal waste regulations, handlers
may 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. Thus, EPA believes it is
appropriate to include performance36 See comment numbers 0073 and 0085 in the
docket for this rulemaking (EPA–HQ–RCRA–2017–
0463).
37 See comment numbers 0001, 0073, and 0085 in
the docket for this rulemaking (EPA–HQ–RCRA–
2017–0463).
38 See comment number 0073 in the docket for
this rulemaking (EPA–HQ–RCRA–2017–0463).
39 See comment number 0001 in the docket for
this rulemaking (EPA–HQ–RCRA–2017–0463).
40 See comment numbers 0073 and 0085 in the
docket for this rulemaking (EPA–HQ–RCRA–2017–
0463).
41 See comment number 0064 in the docket for
this rulemaking (EPA–HQ–RCRA–2017–0463).
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based management standards to address
the risk of puncturing and draining
aerosol cans at universal waste
handlers.
Despite the differences between
recycling of aerosol cans at hazardous
waste generators versus recycling of
aerosol cans at universal waste
handlers, under the final rule, EPA is
not limiting off-site handlers from
puncturing and draining aerosol cans
collected from other handlers. Based on
an observed lack of damage cases from
puncturing and draining aerosol cans in
the manner described in this rule, it
appears that risks posed by universal
waste handlers puncturing and draining
aerosol cans collected from other
handlers is relatively low. EPA has
determined that the final management
standards for the puncturing and
draining of aerosol cans at universal
waste handlers at 40 CFR 273.13(e)(4)
and 40 CFR 273.33(e)(4) adequately
address the low risks. Additionally, the
five of the six states that have added
aerosol cans to their list of universal
wastes allow off-site handlers to
puncture and drain aerosol cans
collected from other handlers, and EPA
is not aware of any damage cases
resulting specifically from the
puncturing and draining under
universal waste in these states.42 In
particular, State officials from Colorado
stated to EPA that their respective
aerosol can universal waste programs
have been in effect for over 15 years,
and they have not identified any
damage cases associated with
puncturing and draining.43
As mentioned, EPA is finalizing
management standards for the
puncturing and draining of aerosol cans
at universal waste handlers to increase
protections. Under the final rule,
puncturing and draining activities must
be conducted by a device specifically
designed to safely puncture aerosol cans
and effectively contain the residual
contents and any emissions thereof.
EPA is not finalizing that the puncturing
and draining activities must be
conducted in a commercial device or a
commercially-manufactured device and
is instead finalizing a performancebased standard. In response to
comments, EPA is not limiting universal
waste handlers that have designed their
own equipment for puncturing and
draining and operated it safely from
continuing to use that equipment. If a
universal waste handler uses
42 See supporting document number 0004 in the
docket for this rulemaking (EPA–HQ–RCRA–2017–
0463).
43 See docket for this rulemaking (EPA–HQ–
RCRA–2017–0463).
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specifically custom designed or
retrofitted equipment to ensure that the
device safely punctures aerosol cans, it
should ensure the equipment is
designed or retrofitted according to
accepted engineering practices based on
established codes, standards, published
technical reports, or similar peer
reviewed documents. Although EPA
received comments from the waste
management industry arguing that their
members have safely designed and
operated their own equipment for
puncturing and draining aerosol cans,
EPA expects most universal waste
handlers will choose to purchase
commercial devices designed to
puncture aerosol cans. 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.44
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, that it does not become
overfilled, and that the container or tank
storing the contents of the drained
aerosol cans is also kept in a wellventilated area free from sparks or
ignition sources.
EPA received multiple comments
arguing that the requirement that
puncturing and draining activities be
conducted in a device designed to
effectively contain the residual contents
and emissions needs to be clarified.45
Specifically, commenters requested EPA
clarify what ‘‘effectively contain’’ means
in relation to emissions.46 The
performance of aerosol can puncturing
and draining devices will vary by
manufacturer and it remains the
44 See supporting document 0003 in the docket
for this rulemaking (EPA–HQ–RCRA–2017–0463).
45 See comment numbers 0073 and 0085 in the
docket for this rulemaking (EPA–HQ–RCRA–2017–
0463).
46 See comment numbers 0001, 0073, and 0085 in
the docket for this rulemaking (EPA–HQ–RCRA–
2017–0463).
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67213
responsibility of the operator to ensure
breakthrough is not occurring. Although
commenters pointed out that handlers
could ensure devices are equipped with
‘‘end of life’’ filters that show when
breakthrough is occurring, it is
impractical to impose this requirement
on all universal waste handlers who use
puncturing and draining equipment
because the manufacturer’s guidance
with respect to containing emissions
varies across the industry.47 For
example, some manufacturers
recommend limiting the number of cans
drained per filter while other
manufacturers recommend weighing the
filter before and during use.48 Given the
variability in the market, it is
impractical for EPA to determine a
single, appropriate standard for
ensuring breakthrough is not occurring.
Rather, EPA is finalizing as proposed
the performance-based standard that
universal waste handlers must use a
device designed to safely puncture
aerosol cans and effectively contain the
residual contents and any emissions
thereof. Universal waste handlers can
minimize the potential for breakthrough
by maintaining the puncturing and
draining device and replacing air filters
according to the manufacturer’s
specifications.
Because handlers are responsible for
ensuring that the puncturing device is
properly draining the contents of the
aerosol cans into the drum, EPA is
finalizing that handlers must establish
and follow a written procedure to
ensure that handlers take the necessary
precautions to protect human health
and the environment while puncturing
and draining universal waste aerosol
cans. At a minimum, EPA is requiring
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 ignitable wastes are
stored away from heat or open flames).
In order to increase protections, EPA is
clarifying in the final rule that handlers
must follow the written procedure.
Additionally, EPA is finalizing that
handlers must maintain a copy of the
manufacturers’ instructions on site and
ensure employees operating the device
are trained in the proper procedures.
Although some states have issued
guidelines for recommending against
puncturing and draining certain types of
aerosol cans, there is limited publicly
47 See supporting document 0003 in the docket
for this rulemaking (EPA–HQ–RCRA–2017–0463).
48 See comment number 0005 and supporting
document 0003 in the docket for this rulemaking
(EPA–HQ–RCRA–2017–0463).
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available data on the subset of aerosol
cans that pose an incompatibility risk.
Additionally, since new products enter
the market and products are constantly
changing, it is not practical to codify a
finite list of aerosol cans that pose an
incompatibility risk. Therefore, EPA is
not providing a list of certain types of
aerosol cans that might pose
incompatibility issues with puncturing
devices or the contents of other aerosol
cans that are drained. However, it
remains the responsibility of the
operator to ensure that the puncturing
device does not puncture aerosol cans
that are incompatible with its materials
or the contents of other aerosol cans that
are being drained. Because aerosol cans
are consumer products, aerosol cans
have labels that identify the products
contained within, including any
hazardous posed by the contents which
can assist handlers in ensuring they
have addressed incompatibility issues.
As mentioned above, EPA is requiring
handlers to establish and follow a
written procedure that addresses the
operation of the unit, including the
segregation of incompatible wastes. The
operator can look to state guidance and
manufacturer’s guidance for
information. For example,
manufacturers make information
available regarding potential
incompatibilities between aerosol can
propellants and puncturing devices
container rubber seals or gaskets.49
EPA is also finalizing that the actual
puncturing of the cans be done in a
manner designed to prevent fires and to
prevent the release of the aerosol can
contents to the environment so as to
minimize human exposure. This
manner includes, but is not limited to,
locating the equipment on a solid, flat
surface in a well-ventilated area.
Commenters pointed out that it is
common practice to operate puncturing
and draining devices on spill catchment
pallets to aid in capturing accidental
leaks or spills, which is allowed under
the final rule if the spill catchment
pallet is located on a solid, flat surface.
In addition, EPA is finalizing that the
handler must immediately transfer the
contents from the waste aerosol can, or
the puncturing device (if applicable), to
a container or tank and conduct a
hazardous waste determination of the
contents under 40 CFR 262.11. The
handler becomes the generator of any
hazardous aerosol can contents and
must manage those wastes in
49 See Compilation of Manufacturer’s Guidance
on Devices for Puncturing and Draining Aerosol
Cans, December 2017, in the docket for this
rulemaking (EPA–HQ–RCRA–2017–0463).
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accordance with applicable RCRA
regulations.
The final rule also requires that a
written procedure be in place in the
event of a spill or leak and a spill cleanup 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.
3. Requirements for Transporters
This final rule will 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 final rule also will
not affect the applicability of shipping
requirements under the hazardous waste
materials regulations of DOT.
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).
4. Requirements for Destination
Facilities
This final rule will 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
§§ 273.13(a) and (c) and 273.33(a) and
(c)).
5. Effect of This 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 or VSQGs
for managing these cans. Household
waste continues to be exempt from
RCRA Subtitle C regulations under 40
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CFR 261.4(b)(1). However, under the
Universal Waste Rule provisions,
VSQGs may choose to manage their
hazardous waste aerosol cans in
accordance with either the VSQG
regulations under 40 CFR 262.14 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) will
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 final rule, handlers of
universal waste who accumulate 5,000
kilograms or more of this commingled
aerosol can waste at any time will 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 will not be required to be
included in a facility’s determination of
hazardous waste generator status (40
CFR 262.13(c)(6)). Therefore, a generator
that manages such cans under the
requirements for universal waste and
does not generate any other hazardous
waste will not be subject to other
Subtitle C hazardous waste management
regulations, such as the hazardous waste
generator regulations in part 262. A
universal waste handler that meets the
definition of a small quantity generator
or large quantity generator in 40 CFR
260.10 for its other hazardous waste will
be subject to the hazardous waste
generator regulations in part 262.
6. Applicability of Land Disposal
Restriction Requirements
This final rule does 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 LDR
requirements regarding testing, tracking,
and recordkeeping in 40 CFR 268.7, and
the storage prohibition in 40 CFR
268.50. EPA is amending 40 CFR
268.1(f) to add aerosol can universal
waste for consistency. This final rule
also does not change the regulatory
status of destination facilities; they
remain subject to the full LDR
requirements.
VI. Technical Corrections
As part of this rulemaking, EPA is
finalizing four technical corrections to
the universal waste standards for
mercury-containing equipment in 40
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CFR 273.13(c)(2)(iii) and (iv) and
273.33(c)(2)(iii) and (iv). Each of these
paragraphs contained 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 proposed
revisions to make the regulations refer
to 40 CFR 262.16 or 262.17, as
applicable. As a result of a comment
stating that this revision did not include
references to other potentially
applicable paragraphs of the hazardous
waste generator regulations in part 262,
EPA has revised the language and is
finalizing language that matches
references in §§ 273.13(a) and 273.33(a).
The final language states that mercury
from broken ampules must be
transferred to a container subject to all
applicable requirements of 40 CFR parts
260 through 272.
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.
VII. State Authority
B. Effect on State Authorization
A. Applicability of Final 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
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
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
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This final rule will be less stringent
than the current Federal program.
Because states are not required to adopt
less stringent regulations, they will 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, 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.
VIII. Statutory and Executive Order
Reviews
Additional information about these
statutes and Executive orders can be
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 regulatory action was
determined to be not significant and
was therefore not submitted to the
Office of Management and Budget
(OMB) for review. This regulatory action
was determined to be not significant for
purposed E.O. 12866 review. The Office
of Management and Budget (OMB)
waived review.
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67215
B. Executive Order 13771: Reducing
Regulations and Controlling Regulatory
Costs
This action is considered an
Executive Order 13771 deregulatory
action. Details on the estimated cost
savings of this final rule can be found
in EPA’s analysis of the costs and
benefits associated with this action.
C. Paperwork Reduction Act (PRA)
The information collection activities
in this final rule have been 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 1597.13 and ICR number
2513.04. You can find a copy of the ICRs
in the docket for this rule, and they are
briefly summarized here.
Because aerosol cans managed under
the final rule are not counted toward a
facility’s RCRA generator status,
respondents will see a reduction in
burden. This reduction is because the
aerosol cans will 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 hazardous waste they
generate (that is not hazardous waste
aerosol cans or other universal wastes).
The existing universal waste
requirements currently applicable to
SQHUWs and LQHUWs will also be
applicable to handlers of aerosol can
universal 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. EPA ICR number
1597.13 focuses on the increased burden
to the universal waste program resulting
from new facilities becoming universal
waste handlers. EPA ICR number
2513.04 focuses on the decrease in
burden associated with this regulation.
Respondents/affected entities: The
information collection requirements of
the final rule affect facilities that handle
aerosol can universal waste and vary
based on facility generator and handler
status.
Respondent’s obligation to respond:
The recordkeeping and notification
requirements are required to obtain a
benefit under 40 CFR part 273.
Estimated number of respondents:
970.
Frequency of response: One-time
notification for LQHUWs; annual
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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 62,621 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 $2.77
million. This cost savings is composed
of approximately $2.65 million in
annualized avoided labor costs and
$23,000 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. When
OMB approves this ICR, the Agency will
announce that approval in the Federal
Register and publish a technical
amendment in 40 CFR part 9 to display
the OMB control number for the
approved information collection
activities contained in this final rule.
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D. Regulatory Flexibility Act (RFA)
I certify that this 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
final rule, 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 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 rule, this 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.
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F. Executive Order 13132: Federalism
L. Congressional Review Act (CRA)
As documented in the Regulatory
Impact Analysis found in the docket for
this rule, this 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.
This action is subject to the CRA, and
the EPA will submit a rule report to
each House of the Congress and to the
Comptroller General of the United
States. This action is not a ‘‘major rule’’
as defined by 5 U.S.C. 804(2).
G. Executive Order 13175: Consultation
and Coordination With Indian Tribal
Governments
This action does not have tribal
implications as specified in Executive
Order 13175. Because the rule is
expected to result in net cost savings,
EPA does not expect that it will result
in any adverse impacts on tribal entities.
Thus, Executive Order 13175 does not
apply to this action.
H. Executive Order 13045: Protection of
Children From Environmental Health
Risks and Safety Risks
This 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
action present a disproportionate risk to
children. This action’s health and risk
assessments are contained in the
Regulatory Impact Analysis found in the
docket for this rule.
I. Executive Order 13211: Actions
Concerning Regulations That
Significantly Affect Energy Supply,
Distribution or Use
This 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 action does
not have disproportionately high and
adverse human health or environmental
effects on minority populations, lowincome 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 the Regulatory Impact
Analysis found in the docket for this
rule.
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List of Subjects
40 CFR Part 260
Environmental protection,
Administrative practice and procedure,
Hazardous waste, Reporting and
recordkeeping requirements.
40 CFR Part 261
Environmental protection, Hazardous
waste, Recycling, Reporting and
recordkeeping requirements.
40 CFR Part 264
Environmental protection, Air
pollution control, Hazardous waste,
Insurance, Packaging and containers,
Reporting and recordkeeping
requirements, Security measures, Surety
bonds.
40 CFR Part 265
Environmental protection, Air
pollution control, Hazardous waste,
Insurance, Packaging and containers,
Reporting and recordkeeping
requirements, Security measures, Surety
bonds, Water supply.
40 CFR Part 268
Environmental protection, Hazardous
waste, Reporting and recordkeeping
requirements.
40 CFR Part 270
Environmental protection,
Administrative practice and procedure,
Confidential business information,
Hazardous materials transportation,
Hazardous waste, Reporting and
recordkeeping requirements, Water
pollution control, Water supply.
40 CFR Part 273
Environmental protection, Hazardous
materials transportation, Hazardous
waste.
Dated: November 15, 2019.
Andrew R. Wheeler,
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
amended as follows:
PART 260—HAZARDOUS WASTE
MANAGEMENT SYSTEM: GENERAL
1. The authority citation for part 260
continues to read as follows:
■
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Authority: 42 U.S.C. 6905, 6912(a), 6921–
6927, 6930, 6934, 6935, 6937, 6938, 6939,
6939g, and 6974.
Subpart B—Definitions
2. Section 260.10 is amended by:
a. Adding the definition of ‘‘Aerosol
can’’ in alphabetical order;
■ b. Republishing the introductory text
for the definition ‘‘Universal waste’’ and
revising paragraphs (3) and (4) and
adding paragraph (5); and
■ c. In the definition of ‘‘Universal
waste handler,’’ revising paragraph
(2)(i).
The additions and revisions read as
follows:
■
■
§ 260.10
Definitions.
*
*
*
*
*
Aerosol can means a non-refillable
receptacle containing a gas compressed,
liquefied, or dissolved under pressure,
the sole purpose of which is to expel a
liquid, paste, or powder and fitted with
a self-closing release device allowing
the contents to be ejected by the gas.
*
*
*
*
*
Universal waste means any of the
following hazardous wastes that are
managed under the universal waste
requirements of part 273 of this chapter:
*
*
*
*
*
(3) Mercury-containing equipment as
described in § 273.4 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) * * *
(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
Authority: 42 U.S.C. 6905, 6912(a), 6921,
6922, 6924(y) and 6938.
Subpart A—General
4. Section 261.9 is amended by
revising paragraphs (c) and (d) and
adding paragraph (e) to read as follows:
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■
Requirements for Universal Waste.
*
*
*
*
*
(c) Mercury-containing equipment as
described in § 273.4 of this chapter;
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Authority: 42 U.S.C. 6905, 6912(a), 6921,
and 6924.
PART 264—STANDARDS FOR
OWNERS AND OPERATORS OF
HAZARDOUS WASTE TREATMENT,
STORAGE, AND DISPOSAL
FACILITIES
■
5. The authority citation for part 264
continues to read as follows:
*
Subpart A—General
10. Section 268.1 is amended by
revising paragraphs (f)(3) and (4) and
adding paragraph (f)(5) to read as
follows:
§ 268.1
Purpose, scope, and applicability.
■
*
*
*
*
(f) * * *
(3) Mercury-containing equipment as
described in § 273.4 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.
§ 264.1
PART 270—EPA ADMINISTERED
PERMIT PROGRAMS: THE
HAZARDOUS WASTE PERMIT
PROGRAM
■
Authority: 42 U.S.C. 6905, 6912(a), 6924,
6925, and 6939g.
Subpart A—General
6. Section 264.1 is amended by
revising paragraphs (g)(11)(iii) and (iv)
and adding paragraph (g)(11)(v) to read
as follows:
Purpose, scope and applicability.
*
*
*
*
*
(g) * * *
(11) * * *
(iii) Mercury-containing equipment as
described in § 273.4 of this chapter;
(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, 6937,
and 6939g.
Subpart A—General
8. Section 265.1 is amended by
revising paragraphs (c)(14)(iii) and (iv)
and adding paragraph (c)(14)(v) to read
as follows:
■
Purpose, scope, and applicability.
*
3. The authority citation for part 261
continues to read as follows:
§ 261.9
(d) Lamps as described in § 273.5 of
this chapter; and
(e) Aerosol cans as described in
§ 273.6 of this chapter.
§ 265.1
■
67217
*
*
*
*
(c) * * *
(14) * * *
(iii) Mercury-containing equipment as
described in § 273.4 of this chapter;
(iv) Lamps as described in § 273.5 of
this chapter; and
(v) Aerosol cans as described in
§ 273.6 of this chapter.
*
*
*
*
*
PART 268—LAND DISPOSAL
RESTRICTIONS
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Authority: 42 U.S.C. 6905, 6912, 6924,
6925, 6927, 6939, and 6974.
Subpart A—General Information
12. Section 270.1 is amended by
revising the section heading and
paragraphs (c)(2)(viii)(C) and (D) and
adding paragraph (c)(2)(viii)(E) to read
as follows:
■
§ 270.1 Purpose and scope of the
regulations in this part.
*
*
*
*
*
(c) * * *
(2) * * *
(viii) * * *
(C) Mercury-containing equipment as
described in § 273.4 of this chapter;
(D) Lamps as described in § 273.5 of
this chapter; and
(E) Aerosol cans as described in
§ 273.6 of this chapter.
*
*
*
*
*
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
revising paragraphs (a)(3) and (4) and
adding paragraph (a)(5) to read as
follows:
■
§ 273.1
9. The authority citation for part 268
continues to read as follows:
■
11. The authority citation for part 270
continues to read as follows:
■
Scope.
(a) * * *
(3) Mercury-containing equipment as
described in § 273.4;
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(4) Lamps as described in § 273.5; and
(5) Aerosol cans as described in
§ 273.6.
*
*
*
*
*
■ 15. Section 273.3 is amended by
revising paragraph (b)(2) to read as
follows:
§ 273.3
Applicability—pesticides.
*
*
*
*
*
(b) * * *
(2) Pesticides not meeting the
conditions set forth in paragraph (a) of
this section. These pesticides must be
managed in compliance with the
hazardous waste regulations in 40 CFR
parts 260 through 272, except that
aerosol cans as defined in § 273.9 that
contain pesticides may be managed as
aerosol can universal waste under
§ 273.13(e) or § 273.33(e);
*
*
*
*
*
■ 16. Section 273.6 is added to read as
follows:
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§ 273.6
Applicability—Aerosol cans.
(a) Aerosol cans covered under this
part. 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. The requirements of this part
do not apply to persons managing the
following types of aerosol cans:
(1) Aerosol cans that are not yet waste
under part 261 of this chapter.
Paragraph (c) of this section describes
when an aerosol can 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; and
(3) Aerosol cans that meet the
standard for empty containers under
§ 261.7 of this chapter.
(c) Generation of waste aerosol cans.
(1) A used aerosol can becomes a waste
on the date it is discarded.
(2) An unused aerosol can becomes a
waste on the date the handler decides to
discard it.
■ 17. 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’’;
■ c. Revising the introductory text and
paragraphs (3) and (4) and adding
paragraph (5) to the definition of
‘‘Universal Waste’’;
■ d. In the definition of ‘‘Pesticide’’:
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i. Redesignating paragraphs (a), (b),
and (c) as paragraphs (1), (2), and (3),
respectively;
■ ii. In newly redesignated paragraphs
(1) and (2), removing the comma and
adding a semicolon in its place; and
■ iii. In newly redesignated paragraph
(3), removing ‘‘(a) or (b) of this section’’
and adding in its place ‘‘(1) or (2)’’ of
this definition;
■ e. In the definition of ‘‘Universal
Waste Handler’’:
■ i. Removing ‘‘Waste Handler’’ and
adding ‘‘waste handler’’ in its place;
■ ii. Redesignating paragraphs (a)
introductory text, (a)(1) and (2), (b)
introductory text, and (b)(1) and (2) as
paragraphs (1) introductory text, (1)(i)
and (ii), (2) introductory text, and (2)(i)
and (ii), respectively; and
■ iii. Revising newly redesignated
paragraph (2)(i);
■ f. In the definition of ‘‘Universal
Waste Transfer Facility,’’ removing
‘‘Waste Transfer Facility’’ and adding
‘‘waste transfer facility’’ in its place; and
■ g. In the definition of ‘‘Universal
Waste Transporter,’’ removing ‘‘Waste
Transporter’’ and adding ‘‘waste
transporter’’ in its place.
The revisions and additions read as
follows:
■
§ 273.9
Definitions.
Aerosol can means a non-refillable
receptacle containing a gas compressed,
liquefied, or dissolved under pressure,
the sole purpose of which is to expel a
liquid, paste, or powder and fitted with
a self-closing release device allowing
the contents to be ejected by the gas.
*
*
*
*
*
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
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Fmt 4700
Sfmt 4700
subject to the universal waste
requirements of this part:
*
*
*
*
*
(3) Mercury-containing equipment as
described in § 273.4;
(4) Lamps as described in § 273.5; and
(5) Aerosol cans as described in
§ 273.6.
*
*
*
*
*
Universal waste handler:
*
*
*
*
*
(2) * * *
(i) A person who treats (except under
the provisions of § 273.13(a) or (c), or
§ 273.33(a) or (c)), disposes of, or
recycles (except under the provisions of
§ 273.13(e) or § 273.33(e)) universal
waste; or
*
*
*
*
*
Subpart B—Standards for Small
Quantity Handlers of Universal Waste
18. Section 273.13 is amended by
revising paragraphs (c)(2)(iii) and (iv)
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 is subject to
all applicable requirements of 40 CFR
parts 260 through 272;
(iv) Immediately transfers any
mercury resulting from spills or leaks
from broken ampules from the
containment device to a container that
is subject to all applicable requirements
of 40 CFR parts 260 through 272;
*
*
*
*
*
(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, lacks
evidence of leakage, spillage, or damage
that could cause leakage under
reasonably foreseeable conditions, and
is protected from sources of heat.
(2) Universal waste aerosol cans that
show evidence of leakage must be
packaged in a separate closed container
or overpacked with absorbents, or
immediately punctured and drained in
accordance with the requirements of
paragraph (e)(4) of this section.
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(3) 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; and
(4) 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 universal
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 and follow a written
procedure detailing how to safely
puncture and drain the 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 on site; and ensure
employees operating the device are
trained in the proper procedures.
(iii) Ensure that puncturing of the can
is done in a manner designed to prevent
fires and to prevent the release of any
component of universal waste to the
environment. This manner includes, but
is not limited to, locating the equipment
on a solid, flat surface in a wellventilated 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 40 CFR
262.14, 262.15, 262.16, or 262.17.
(v) Conduct a hazardous waste
determination on the contents of the
emptied aerosol can 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 to
be nonhazardous, the handler may
manage the waste in any way that is in
compliance with applicable Federal,
state, or local solid waste regulations.
(vii) A written procedure must be in
place in the event of a spill or leak 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.
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19. 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
20 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
*
*
*
*
*
■ 21. Section 273.33 is amended by
revising paragraphs (c)(2)(iii) and (iv)
and adding paragraph (e) to read as
follows:
§ 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 is subject to all
applicable requirements of 40 CFR parts
260 through 272;
(iv) Immediately transfers any
mercury resulting from spills or leaks
from broken ampules from the
containment device to a container is
subject to all applicable requirements of
40 CFR parts 260 through 272;
*
*
*
*
*
(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, lacks
evidence of leakage, spillage, or damage
that could cause leakage under
reasonably foreseeable conditions, and
is protected from sources of heat.
(2) Universal waste aerosol cans that
show evidence of leakage must be
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Fmt 4700
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67219
packaged in a separate closed container
or overpacked with absorbents, or
immediately punctured and drained in
accordance with the requirements of
paragraph (e)(4) of this section.
(3) 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;
(ii) Mixing intact cans in one
container; and
(iii) Removing actuators to reduce the
risk of accidental release; and
(4) 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 universal
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 and follow a written
procedure detailing how to safely
puncture and drain the 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 on site; and ensure
employees operating the device are
trained in the proper procedures.
(iii) Ensure that puncturing of the can
is done 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 40 CFR
262.14, 262.15, 262.16, or § 262.17.
(v) Conduct a hazardous waste
determination on the contents of the
emptied can 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 to
be nonhazardous, the handler may
manage the waste in any way that is in
compliance with applicable Federal,
state, or local solid waste regulations.
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Federal Register / Vol. 84, No. 236 / Monday, December 9, 2019 / Rules and Regulations
(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.
■ 22. 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. 2019–25674 Filed 12–6–19; 8:45 am]
BILLING CODE 6560–50–P
FEDERAL COMMUNICATIONS
COMMISSION
47 CFR Part 54
[WC Docket No. 10–90; FCC 19–104]
Connect America Fund
Federal Communications
Commission.
ACTION: Final rule.
AGENCY:
In this document, the Federal
Communications Commission
(Commission) reviews performance
measures established by the Wireline
Competition Bureau (WCB), the
Wireless Telecommunications Bureau,
and the Office of Engineering and
Technology (collectively the Bureaus)
for recipients of Connect America Fund
(CAF) high-cost universal service
support to ensure that those standards
strike the right balance between
ensuring effective use of universal
service funds while granting the
flexibility providers need given the
practicalities of network deployment in
varied circumstances.
DATES: Effective January 8, 2020.
FOR FURTHER INFORMATION CONTACT:
Suzanne Yelen, Wireline Competition
Bureau, (202) 418–7400 or TTY: (202)
418–0484.
SUPPLEMENTARY INFORMATION: This is a
summary of the Commission’s Order on
Reconsideration in WC Docket No. 10–
90; FCC 19–104, adopted on October 25,
2019 and released on October 31, 2019.
The full text of this document is
available for public inspection during
regular business hours in the FCC
Reference Center, Room CY–A257, 445
12th Street SW, Washington, DC 20554
or at the following internet address:
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SUMMARY:
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https://docs.fcc.gov/public/
attachments/FCC–19–104A1.pdf
I. Introduction
1. The Commission has long
recognized that ‘‘[a]ll Americans
[should] have access to broadband that
is capable of enabling the kinds of key
applications that drive the
Commission’s efforts to achieve
universal broadband, including
education (e.g., distance/online
learning), health care (e.g., remote
health monitoring), and person-toperson communications (e.g., Voice over
internet Protocol (VoIP) or online video
chat with loved ones serving overseas).’’
To that end, the Commission has
invested significant Universal Service
Fund support for the deployment of
broadband-capable networks in high
cost, rural areas.
2. But only fast and responsive
networks will allow Americans to fully
realize the benefits of connectivity. That
is why the Commission requires
recipients of universal service support
in high cost areas to deploy broadband
networks capable of meeting minimum
service standards. These standards
protect taxpayers’ investment and
ensure that carriers receiving this
support deploy networks that meet the
performance standards they promised to
deliver to rural consumers. At the same
time, the Commission recognizes that
each carrier faces unique circumstances,
and that one set of prescriptive rules
may not make sense for every one of
them. To accommodate this practical
reality, the Commission’s rules provide
flexibility, taking into account the
operational, technical, and size
differences among providers when
establishing minimum standards, to
ensure that even the smallest rural
carriers can meet testing requirements
without facing excessive burdens.
3. In the Order on Reconsideration,
the Commission reviews performance
measures established by the Bureaus for
recipients of CAF high-cost universal
service support to ensure that those
standards strike the right balance
between ensuring effective use of
universal service funds while granting
the flexibility providers need given the
practicalities of network deployment in
varied circumstances. Several petitions
for reconsideration and applications for
review of the Performance Measures
Order, 83 FR 42052, August 20, 2018,
propose changes to these performance
measures. Here, the Commission rejects
the proposed changes where it finds that
the Bureaus’ approach strikes the right
balance. Where the Commission finds
that the Bureaus’ approach does not—
for example, where it concludes that
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greater flexibility is warranted than was
offered under the Bureaus’ original
methodology—the Commission adjusts
its rules accordingly. Finally, the
Commission clarifies the Bureaus’
approach where doing so will help
resolve stakeholder confusion.
II. Discussion
4. In the Order on Reconsideration,
the Commission reexamines each of the
described performance measure
requirements in this document. As a
result, the Commission adopts several
modifications. The Commission believes
these changes will alleviate concerns
expressed by carriers by increasing the
time for carriers to meet certain
deadlines and further minimizing the
costs associated with compliance, yet
still ensure that carriers meet their
performance obligations. In short, the
refinements to the Bureau’s approach
adopted in the Performance Measures
Order will further the overarching goal
of the Performance Measures Order;
namely, to ensure that carriers deliver
broadband services with the speed and
latency required while providing
flexibility to enable carriers of all sizes
to choose how to conduct the required
performance testing in the manner most
appropriate for each individual carrier.
5. Under the Performance Measures
Order, all high-cost support recipients
serving fixed locations must perform
speed and latency tests from the
customer premises of an active
subscriber to a remote test server located
at or reached by passing through an
FCC-designated internet Exchange Point
(IXP). In the USF/ICC Transformation
Order, 76 FR 73830, November 29, 2011,
the Commission decided that speed and
latency should be measured on each
eligible telecommunications carriers
(ETCs) access network from the enduser interface to the nearest internet
access point, i.e., the internet gateway,
which is the closest peering point
between the broadband provider and the
public internet for a given consumer
connection. Subsequently, in the CAF
Phase II Price Cap Service Obligation
Order, 78 FR 70881, November 27, 2013,
WCB stated that latency should be
tested to an IXP, defined as occurring in
any of ten different U.S. locations,
almost all of which are locations used
in the MBA program because they are
geographically distributed major peering
locations. The Bureaus expanded the
list to permit testing to six additional
metropolitan areas to ensure that most
mainland U.S. locations are within 300
miles of an FCC-designated IXP and that
all are within approximately 500 air
miles of one. Further, the Bureaus
permitted providers to use any FCC-
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]]>Agencies
[Federal Register Volume 84, Number 236 (Monday, December 9, 2019)]
[Rules and Regulations]
[Pages 67202-67220]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2019-25674]
-----------------------------------------------------------------------
ENVIRONMENTAL PROTECTION AGENCY
40 CFR Parts 260, 261, 264, 265, 268, 270, and 273
[EPA-HQ-OLEM-2017-0463; FRL-10002-49-OLEM]
RIN 2050-AG92
Increasing Recycling: Adding Aerosol Cans to the Universal Waste
Regulations
AGENCY: Environmental Protection Agency (EPA).
ACTION: Final rule.
-----------------------------------------------------------------------
[[Page 67203]]
SUMMARY: The Environmental Protection Agency (EPA or the Agency) is
adding hazardous waste aerosol cans to the universal waste program
under the Federal Resource Conservation and Recovery Act (RCRA)
regulations. This change will 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: This final rule is effective on February 7, 2020.
ADDRESSES: The EPA has established a docket for this action under
Docket ID No. EPA-HQ-RCRA-2017-0463. All documents in the docket are
listed on the https://www.regulations.gov website. Although listed in
the index, some information is not publicly available, e.g., CBI or
other information whose disclosure is restricted by statute. Certain
other material, such as copyrighted material, is not placed on the
internet and will be publicly available only in hard copy form.
Publicly available docket materials are available electronically
through https://www.regulations.gov.
FOR FURTHER INFORMATION CONTACT: Laura Stanley, Office of Land and
Emergency Management (5304P), Environmental Protection Agency, 1200
Pennsylvania Avenue NW, Washington, DC 20460; telephone number: 703-
308-7285; email address: [email protected],gov, or 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].
SUPPLEMENTARY INFORMATION:
I. General Information
A. Does this action apply to me?
This final rule will 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 25,000 industrial facilities in 20 different
industries (at the 2-digit North American Industry Classification
System (NAICS) code level). An estimated 7,483 of these facilities are
large quantity generators (LQG). 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 69% of the affected LQG
universe, and manufacturing (NAICS code 31-33), representing 17% of the
affected LQG 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........................ 5,194 303
31-33............................... Manufacturing....................... 1,238 7,771
48-49............................... Transportation and Warehousing...... 168 1,033
62.................................. Health Care and Social Assistance... 184 13
81.................................. Other Services (except Public 169 4
Administration).
92.................................. Public Administration............... 113 190
61.................................. Educational Services................ 116 32
54.................................. Professional, Scientific, and 89 16
Technical Services.
42.................................. Wholesale Trade..................... 75 511
22.................................. Utilities........................... 40 14
56.................................. Administrative and Support and Waste 51 1,906
Management and Remediation Services.
All Other NAICS Codes............... 46 49
-------------------------------------
Total........................... .................................... 7,483 11,843
----------------------------------------------------------------------------------------------------------------
This table is not intended to be exhaustive, but rather provides a
guide for readers regarding entities likely to 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 V
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 adding hazardous waste
aerosol cans to the list of universal wastes regulated under the RCRA
regulations. This revision will 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 promulgated 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.
6922, 6923, 6924, 6925, 6930, and 6937.
D. What are the incremental costs and benefits of this action?
This final action is estimated to result in an annual cost savings
of $5.3 million to $47.8 million. Information on the estimated economic
impacts of this action is presented in section VIII of this document,
as well as in the Regulatory Impact Analysis (RIA) available in the
docket for this final action. 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. List of Acronyms
CFR Code of Federal Regulations
[[Page 67204]]
DOT Department of Transportation
EPA Environmental Protection Agency
E.O. Executive Order
FR Federal Register
LQG Large Quantity Generator
LQHUW Large Quantity Handler of Universal Waste
NAICS North American Industry Classification System
NODA Notice of Data Availability
OMB Office of Management and Budget
RCRA Resource Conservation and Recovery Act
SQG Small Quantity Generator
SQHUW Small Quantity Handler of Universal Waste
TSDF Treatment, Storage and Disposal Facility
VSQG Very Small Quantity Generator
III. Background
A. Summary of Proposal
On March 16, 2018, EPA published the proposal to add aerosol cans
to the Federal universal waste program (83 FR 11654). EPA's proposal
recognized that inclusion of this common waste stream as universal
waste could better ensure that aerosol cans are managed appropriately
at the end of their lives, remove these wastes from the municipal waste
stream, potentially encourage recycling, and reduce unnecessary burden
for generators.
In its proposal, EPA analyzed the factors for inclusion of a waste
stream in the universal waste program and took public comment on its
conclusions. In addition, EPA defined what materials would qualify as
aerosol cans for the purposes of management as universal waste. EPA
proposed management standards for handlers of these materials and took
public comment on the proposed standards.
In addition to the universal waste management standards that apply
to all universal waste handlers, such as labeling and marking,
accumulation time limits, employee training, responses to releases,
export requirements, and, for large quantity handlers of universal
waste, notification and tracking, EPA proposed specific standards that
relate to the puncturing and draining of aerosol cans.
EPA proposed that puncturing and draining of aerosol cans be
conducted by a commercial device specifically designed to safely
puncture aerosol cans and effectively contain the residual contents as
well as any emissions from the puncturing and draining activities. In
addition, EPA proposed that handlers establish written procedures for
safely puncturing and draining universal waste aerosol cans and ensure
that employees operating the device be trained in the proper
procedures. EPA proposed that puncturing of aerosol cans be done in a
manner designed to prevent fires and releases and that any residuals
from puncturing cans be transferred to a tank or container, at which
point the handler must make a hazardous waste determination on the
residuals, as required in 40 CFR 262.11. The proposal also included
that written procedures be in place in the event of a spill or release,
that a spill clean-up kit be provided, and that any spills or leaks be
cleaned up promptly.
In addition to these proposed standards, EPA analyzed the existing
state universal waste programs that include aerosol cans and requested
comment on including further limitations on puncturing and draining of
cans that might contain materials that pose an incompatibility hazard
with other materials or establishing further limits on which types of
handlers are allowed to puncture and drain aerosol cans within the
universal waste program.
EPA has analyzed all the comments received in response to its
proposed rule and responds to those comments in this final rule or in
the Response to Comment document available in the docket for this
rulemaking.
B. 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 Household and Commercial Products
Association estimates that 3.75 billion aerosol cans were filled in the
United States in 2016 for use by commercial and industrial facilities
as well as by households.\1\
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\1\ Household and Commercial Products Association, Aerosol
Products Survey Shows Strong, Stable Industry, May 2017. https://www.thehcpa.org/aerosol-products-survey-shows-strong-stable-industry/ retrieved October 21, 2019.
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A typical aerosol can consists of several components, including
(but not limited to) the following: (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\
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\2\ National Aerosol Association, History of the Aerosol, https://www.nationalaerosol.com/history-of-the-aerosol/, retrieved December
11, 2017.
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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. If the
propellant or product is 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.'' In addition, the bottom
of the can may detach as a result of a manufacturing defect or an
external force, potentially causing the upper part of the can to become
a projectile.
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).
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\3\ University of Vermont, Paint and Aerosol Safety, https://www.uvm.edu/safety/art/paint-aerosol-safety, retrieved December 11,
2017.
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C. Current Federal Regulation of Aerosol Cans
1. Regulation of Aerosol Cans Under 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 waste or
[[Page 67205]]
exhibit other hazardous waste characteristics.\4\
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\4\ Aerosol cans that have not been discarded are not solid or
hazardous wastes.
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Until this rulemaking goes into effect, many, but not all,
generators of aerosol cans identified or listed as a hazardous waste
have been 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, 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\
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\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).
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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, until this rulemaking goes into effect,
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 or 265, or subject to part 267.
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\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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2. Regulation Under the Federal Insecticide, Fungicide, and Rodenticide
Act
Hazardous waste aerosol cans that contain pesticides are also
subject to the requirements of the 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 issued a determination that puncturing aerosol pesticide containers
in the process of recycling aerosol cans is consistent with the
purposes of FIFRA. The purpose of the label prohibiting puncturing of
pesticide-containing aerosol cans is to protect the ordinary users of
pesticides from the hazards of pressurized containers. The hazards
associated with recycling aerosol pesticide containers are adequately,
and more appropriately, addressed under Federal, state and local laws
concerning solid and hazardous wastes and occupational safety and
health. Such puncturing 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.\7\
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\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, Docket ID# EPA-HQ-OLEM-2017-0463-0007.
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D. 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 them 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. This final rule, which adds aerosol cans to the Federal universal
waste program, completes EPA's commitment in the Retail Strategy to
explore this option. Further, with this action, EPA has completed all
commitments made in the Retail Strategy.
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\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.
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E. 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
[[Page 67206]]
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 limit
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.
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, states implementing the
universal waste program 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.
F. State Universal Waste Programs That Include Aerosol Cans
Five states--California, Colorado, New Mexico, Ohio, and Utah--
already have universal waste aerosol can programs in place, and
Minnesota plans to propose to add aerosol cans to their universal waste
regulations in 2019.\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
five current state universal waste programs set standards for
puncturing and draining of aerosol cans by universal waste handlers.
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\9\ See supporting document number 0004 in the docket for this
rulemaking (EPA-HQ-RCRA-2017-0463). See also Minnesota Pollution
Control Agency 2016, Public Rulemaking Docket, https://www.pca.state.mn.us/sites/default/files/mm-rule1-00.pdf, retrieved
August 21, 2019.
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The aerosol can universal waste programs in California, Colorado,
New Mexico, Ohio, and Utah allow for puncturing and draining of aerosol
cans by universal 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.
Guidance in effect in Minnesota at the time of publication of this
final rule also allows handlers to puncture and drain their aerosol
cans.
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\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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IV. Rationale for Including Aerosol Cans in the Universal Waste Rule
A. Factors for Inclusion in the Universal Waste Rule
EPA is adding aerosol cans to the list of universal wastes because
this waste meets the factors found at 40 CFR 273.81 that describe
hazardous waste 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 universal waste aerosol cans are sent to the appropriate
destination facilities, where they will be managed as a hazardous waste
with all applicable Subtitle C requirements to ensure protection of
human health and the environment. Management as universal waste under
the final 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 including in the
regulations as a universal waste. 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 to be a universal waste. 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 the weight of evidence 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 proposed rule and the public
comments on the 2014 Retail NODA using the criteria in 40 CFR
273.81.\11\ In light of its evaluation of this information, the Agency
has determined that on balance, hazardous waste aerosol cans meet the
factors in 40 CFR 273.81 warranting inclusion on the Federal list of
universal wastes for management under part 273. EPA received numerous
comments on the proposed rule agreeing that aerosol cans are
appropriate for inclusion in the Universal Waste Rule. EPA believes
that adding aerosol cans to the list of universal wastes will 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.
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\11\ Public comments on the 2014 Retail NODA can be found in
docket number EPA-HQ-RCRA-2012-0426.
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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 exhibit another hazardous
characteristic per 40 CFR part 261, subpart C, and may also be a P- or
U-
[[Page 67207]]
listed hazardous waste found at 40 CFR 261.33(e) or (f).
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 RIA for this final rule that large and
small quantity generators managing hazardous waste aerosol cans can be
found in 20 different industries (at the 2-digit NAICS code level).
Thus, aerosol cans are commonly generated by a wide variety of types of
establishments, including 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 25,000 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 that 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 2017, LQGs generated an
average of 1.6 tons per year each (approximately 3,600 cans).
4. Systems to Be Used for Collecting the Waste (Including Packaging,
Marking, and Labeling Practices) Would Ensure Close Stewardship of the
Waste (40 CFR 273.81(d))
The baseline universal waste requirements of notification,
labeling, training, and response to releases found in 40 CFR part 273,
subparts B and C, and the final specific requirements for management of
aerosol cans in 40 CFR 273.13 and 40 CFR 273.33, discussed in section
V, 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
periods of storage and transportation as they move from the
manufacturer to the retailer, and ultimately to the final customer.
Because of their design, hazardous waste aerosol cans present a
relatively low risk compared to other types of hazardous waste that are
not contained as-generated under normal management conditions and the
risk posed by intact waste aerosol cans during storage and transport is
similar to the risk posed by intact product aerosol cans. Retail and
other entities that generate waste aerosol cans are accustomed to
safely handling aerosol can products. In addition, the ignitability
risk posed during accumulation and transport is addressed by standards
set by local fire codes, the Office of Safety and Health
Administration, and the Department of Transportation (DOT).\12\ These
standards include requirements for outer packaging, can design, 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, the Agency has determined that the requirements of the
universal waste program are effective in mitigating risks posed by
hazardous waste aerosol cans. Specifically, the requirements for
handlers to accumulate aerosol cans in a container that is structurally
sound and compatible with the contents of the aerosol cans will ensure
safe management and transport. In addition, the universal waste program
requires proper training for employees when handling universal waste,
responding to releases, and shipment in accordance with DOT
regulations. These requirements will make the risks posed during
accumulation and transport low. Additionally, the final specific
requirements for management of aerosol cans that are punctured and
drained at the handler, described in section V, address the
ignitability risk and are designed to help prevent releases. Thus, the
specific aerosol can universal waste management standards address the
risks posed by hazardous waste aerosol cans.
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 final rule it will be more economical to send hazardous waste
aerosol cans for recycling for recovery of metal values. The final rule
will advance the RCRA goal of increased resource conservation and
increase proper disposal of hazardous waste, making it less likely that
aerosol cans will be sent for improper disposal in municipal landfills
or municipal incinerators. In addition, because the streamlined
structure of the universal waste regulations 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 will be more easily collected and
consolidated for hazardous waste disposal. This waste will 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 of 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 inclusion 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
[[Page 67208]]
easily send this waste for proper management. Therefore, adding aerosol
cans to the list of universal wastes would offer a protective hazardous
waste management system that is likely to be more accessible,
particularly for the retail sector, which can face 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, retrieved on January 24,
2018.
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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
The factors included in 40 CFR 273.81 are designed to determine
whether regulating a particular hazardous waste under the streamlined
standards for universal waste would improve the overall management of
the waste; 40 CFR 273.81(h) includes other factors as may be
appropriate. Under 40 CFR 273.81(h), EPA considered states' experience
of already managing aerosol cans under state universal waste programs.
As discussed in section III, five states have added aerosol cans to
their universal waste programs, and 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 add aerosol cans to the national universal waste
program.
Information supplied to EPA from officials in those five states
indicates that their programs improve the implementation of the
hazardous waste program. Specifically, waste management officials from
the four states whose programs were operating at the time of the
proposed rule 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 enforcing
compliance with the standards. Accordingly, this information 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\ See supporting document number 0004 in the docket for this
rulemaking (EPA-HQ-RCRA-2017-0463).
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B. Expected Changes in Management of Aerosol Cans
EPA expects that under this final rule, the number of aerosol cans
that are diverted from municipal solid waste landfills and incinerators
to recycling or disposal in Subtitle C facilities will increase. Small
and large quantity generators are already required to manage their
hazardous waste aerosol cans under RCRA Subtitle C. Following
implementation of this rule, some of these generators will 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 generators to arrange for hazardous waste
recycling or disposal of these materials when they are generated.
Because the streamlined structure of the universal waste standards
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. EPA intends to encourage
individual households and VSQGs to participate in such programs.
In summary, EPA believes that management of hazardous waste aerosol
cans will best be implemented through a universal waste approach where
handlers are operating within a simple, streamlined management system.
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.
V. Discussion of Final Rule
A. Waste Covered by Final Rule
1. Definition of Aerosol Can
a. Discussion of Proposed Rule
EPA proposed that an ``aerosol can'' be defined as an ``intact
container in which gas under pressure is used to aerate and dispense
any material through a valve in the form of a spray or foam.'' 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 twenty-four ounce size limit in Utah's
definition of aerosol can. EPA proposed to adopt this definition of
aerosol can to be consistent with the existing state programs.
This proposed definition was intended 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. EPA
also requested comment on limiting the definition of aerosol cans to
those under twenty-four ounces, consistent with Utah's aerosol can
universal waste program.
b. Summary of Comments
Several commenters recommended that EPA model the definition of
aerosol can after language used in the DOT regulations in 49 CFR 171.8
and U.N. Model Regulations. An aerosol is defined in 49 CFR 171.8 as an
article consisting of any non-refillable receptacle containing a gas
compressed, liquefied, or dissolved under pressure, the sole purpose of
which is to expel a liquid, paste, or powder and fitted with a self-
closing release device allowing the contents to be ejected by the gas.
Commenters noted that, in addition to harmonizing the RCRA regulations
with DOT requirements, this language would be more inclusive, making it
clear that aerosol cans containing products that are not dispensed as a
spray or foam, such as aerosol cans that dispense product in the form
of paste or powder, may be managed as universal waste. In addition,
this definition would address the risk of gas cylinders if managed as
universal waste, since those cylinders would not be considered ``non-
refillable receptacles'' with a ``self-closing release device'' and
therefore not eligible to be managed as universal waste under the
alternative wording.
Most commenters supported EPA's proposal to exclude compressed gas
cylinders from the definition of universal waste aerosol can, noting
that such devices pose a higher risk than aerosol cans pose. Two
industry commenters requested that compressed gas cylinders be included
as universal waste, with one commenter asserting that ``as long as
facilities have procedures in place to safely
[[Page 67209]]
depressurize these devices, potential risks can be mitigated.'' \15\
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\15\ See comment number 0088 in the docket for this rulemaking
(EPA-HQ-RCRA-2017-0463).
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Finally, most commenters (including industry, most states, and
local government) supported EPA's proposal to not set a specific size
limit on aerosol cans. One state association and a few individual
states did support limiting the size of aerosol cans to twenty-four
ounces.
c. Final Rule Provisions
EPA is finalizing a definition of ``aerosol can'' that is
consistent with language in the DOT regulations.\16\ In the final rule,
aerosol can is defined as a non-refillable receptacle containing a gas
compressed, liquefied or dissolved under pressure, the sole purpose of
which is to expel a liquid, paste, or powder and fitted with a self-
closing release device allowing the contents to be ejected by the gas.
Using language from the DOT regulation will help ensure consistency
across Federal regulatory programs, avoid unnecessarily narrowing the
scope of the rule to aerosol cans that aerate their product, and will
not inadvertently include compressed gas cylinders in the definition of
aerosol can. Because compressed gas cylinders, unlike aerosol cans,
require special procedures to safely depressurize, it would not be
appropriate to include them in the final rule. Finally, because the DOT
language is more inclusive than the proposed language, it better
matches the intent of the proposal to apply to all types of aerosol
cans, including cans that dispense product in the form of paste or
powder, and would not require states that have already added aerosol
cans to their universal waste program to change their regulations.
---------------------------------------------------------------------------
\16\ The DOT definition is also similar to the definition used
in U.N. Model regulations. EPA chose the DOT version in order to
promote consistency between the U.S. Federal regulatory programs.
---------------------------------------------------------------------------
2. Applicability
a. Discussion of Proposed Rule
The proposed rule excluded from the universal waste requirements
those cans that are not yet a waste under 40 CFR part 261 and those
cans that are not hazardous waste. In addition, at proposed 40 CFR
273.6(b)(1)-(3), the proposal specifically excluded aerosol cans that
have been emptied of their contents (both propellant and product).
Aerosol cans that fall under these categories would not be subject to
hazardous waste requirements or universal waste requirements.
Finally, the proposed rule also proposed to exclude aerosol cans
that show evidence of leakage, spillage, or damage that could cause
leakage under reasonably foreseeable conditions. This proposed rule
language would mean that hazardous waste aerosol cans that are not
intact would continue to be subject to the full hazardous waste
standards.
b. Summary of Comments
Several commenters requested that EPA allow leaking and damaged
aerosol cans to be managed as universal waste. Commenters point out
that the rules for other types of universal wastes (lamps, pesticides,
batteries, mercury-containing equipment) allow damaged or leaking items
to be managed as universal waste as long as they are in an appropriate
container (e.g., overpacked with absorbents). Commenters were concerned
that determining whether an aerosol can shows ``evidence of leakage,
spillage, or damage that could cause leakage under reasonably
foreseeable conditions'' is a subjective standard that would be
confusing to implement. Commenters noted that Colorado allows damaged
aerosol cans to be managed as universal waste as long as they are
managed in a separate individual container and that Ohio allows damaged
aerosol cans to be managed as universal waste as long as they are
overpacked with absorbents or immediately punctured to remove the
contents of the can.
c. Final Rule Provisions
EPA is finalizing as proposed the language in 40 CFR 273.6(b)(1)-
(3). These provisions designate aerosol cans that are not subject to
hazardous waste requirements because they are either not solid waste,
not hazardous waste, or they met the definition of empty container in
40 CFR 261.7.
However, EPA is not finalizing the proposed language in 40 CFR
273.6(b)(4), which would have barred leaking or damaged aerosol cans
from being managed as universal waste, instead leaving such cans
subject to 40 CFR part 262 hazardous waste requirements. Rather, EPA is
requiring that universal waste aerosol cans that show evidence of
leakage must be packaged in a separate closed container or overpacked
with absorbents, or immediately punctured and drained in accordance
with the aerosol can universal waste requirements. (See 40 CFR
273.13(e)(2) and 40 CFR 273.33(e)(2)).
EPA agrees with those commenters who indicated that such an
approach is more consistent with how other universal wastes are
regulated and how the states that currently regulate aerosol cans as
universal waste operate their programs. In addition, setting specific
protective management standards for leaking aerosol cans under the
universal waste regulations would ensure the risk from these cans is
addressed and that they are ultimately sent to appropriate destination
facilities per 40 CFR 273.18 and 40 CFR 273.38 instead of potentially
being diverted to municipal waste streams as VSQG waste per the
requirements in 40 CFR 262.14. Such an approach is also consistent with
DOT requirement that aerosols that are damaged, defective, or leaking
to the point where they do not meet applicable design standards be
transported in special aerosol salvage drums. See 49 CFR 173.306(k)(2).
3. Comments and Responses Related to ``Emptied'' Aerosol Cans
a. Comment: Empty Aerosol Cans Should be Allowed To Be Managed as
Universal Waste
Summary of Comments. Several commenters requested that EPA clarify
that handlers should be able to continue to manage their punctured and
drained aerosol cans as a universal waste and send them to another
handler or destination facility. The proposed Sec. 273.6(b)(3)
designated aerosol cans that meet the standard for empty containers
under Sec. 261.7 of the chapter as being excluded from universal waste
requirements, and the proposed definition for aerosol cans included the
requirement that they be ``intact,'' implying that punctured aerosol
cans would not meet the definition. Commenters stated that including
empty aerosol cans would provide a clear decision process for
generators to include all aerosol cans--empty, full, or partially
full--for proper handling and disposal as universal waste. However,
commenters noted it would not be necessary to require empty aerosol
cans to be managed under the universal waste regulations because
generators may still want to manage empty aerosol cans as scrap metal
for recycling.
EPA Response. EPA agrees that while aerosol cans that meet the
standard for empty containers found at 40 CFR 261.7 should not be
required to meet the universal waste requirements, they also should not
be barred from being managed as universal waste if a handler chooses to
do so. Residues in empty containers that meet the requirements of 40
CFR 261.7 are not subject to RCRA hazardous waste requirements.
However, a handler is nevertheless allowed under the regulation to
manage
[[Page 67210]]
aerosol cans that meet the empty container standards as universal waste
if they would prefer to do so. Likewise, non-hazardous aerosol cans may
be managed as universal waste, although they are not required to be
managed as such. EPA notes that the final definition of aerosol can is
based on the DOT definition and no longer specifies that the cans must
be ``intact,'' thus removing a potential source of confusion.
b. Comment: Additional Guidance Needed on How To Determine if an
Aerosol Can Meets the Empty Container Standard
Summary of Comments. Several commenters suggested that EPA provide
additional guidance on how to determine if an aerosol can meets the
empty container standard found at 40 CFR 261.7. One commenter suggested
that EPA adopt guidance used by the State of Minnesota which recognizes
an aerosol can as ``empty'' when (1) the container contains no
compressed ignitable gas propellant or product; (2) all liquid product
that can be dispensed through the valve has been; and (3) less than 3%
of the product capacity of the container remains. Minnesota's guidance
also recognizes that documenting that an aerosol can meets this
standard can be impractical and therefore provides that aerosol cans
may be assumed empty when both of the following criteria are satisfied:
(1) No liquid is felt or heard when the can is shaken by hand; and (2)
no gas or liquid is released when the spray/discharge valve is
activated and the container is rotated through all directions, and the
valve is not observably or known to be clogged.\17\ Another commenter
suggested that EPA add a provision to 40 CFR 261.7 stating that an
aerosol can is empty when it has been punctured and drained. The
commenter stated that this provision should apply to cans that hold
characteristic or listed wastes.\18\
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\17\ See comment number 0086 in the docket for this rulemaking
(EPA-HQ-RCRA-2017-0463).
\18\ See comment number 0085 in the docket for this rulemaking
(EPA-HQ-RCRA-2017-0463).
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EPA Response. Under 40 CFR 261.7(b),\19\ a container that has held
non-acute hazardous waste is ``empty'' if (1) all wastes have been
removed that can be removed using the practices commonly employed to
remove materials from that type of container, e.g., pouring, pumping,
and aspirating (applicable in all cases), and (2) no more than 2.5
centimeters (one inch) of residue remains on the bottom of the
container or inner liner, or (3) no more than 3 percent by weight of
the total capacity of the container remains in the container or inner
liner if the container is less than or equal to 119 gallons in size. In
addition, a container that has held a hazardous waste that is a
compressed gas is empty when the pressure in the container approaches
atmospheric pressure.
---------------------------------------------------------------------------
\19\ EPA did not request comment on or otherwise reopen the
empty container provisions of 40 CFR 261.7 and comments requesting
changes to the empty container regulations are outside the scope of
this rule.
---------------------------------------------------------------------------
In the case of a container that has held an acute hazardous waste
listed in 40 CFR 261.31 or 261.33(e), the container is considered empty
when it has been triple rinsed or has been cleaned by another method
that has been shown in scientific literature, or by tests conducted by
the generator to achieve equivalent removal, per 40 CFR 261.7(b)(3).
EPA also considers a container that has held an acute hazardous that is
a compressed gas to meet the definition of empty when it approaches
atmospheric pressure, as defined in 40 CFR 261.7(b)(2).\20\ EPA is not
aware of a chemical commonly found in aerosol cans that would be listed
as an acute hazardous waste, but if such an aerosol can product does
exist, it would have to meet the 40 CFR 261.7(b)(2) or (3) standard to
be considered ``empty'' under the regulations. The commenter request
for a revision to 40 CFR 261.7 that would allow aerosol cans that have
held acutely hazardous waste to be disposed of without meeting the
current standard in 40 CFR 261.7(b)(3) when punctured and drained is
being beyond the scope of this rulemaking.
---------------------------------------------------------------------------
\20\ EPA first explained this interpretation in 2017. See U.S.
EPA 2017 RCRA Regulatory Status of Permeation Device, Memo from
Barnes Johnson, Director, Office of Resource Conservation and
Recovery to Alex Chaharom, GeNO LLC, February 9, 2017. RO# 14887
---------------------------------------------------------------------------
However, in the case of aerosol cans being recycled, rather than
disposed of, aerosol cans that have been punctured and drained prior to
recycling are considered exempt scrap metal under 40 CFR
261.6(a)(3)(ii), and therefore all such punctured cans would be exempt
from hazardous waste requirements when recycled.
c. Comment: EPA Should Clarify That an Aerosol Can Does Not Need To Be
``Empty'' To Be Exempt Scrap Metal
Summary of Comments. One commenter noted that EPA said in the
proposed rule that aerosol containers that meet the definition of empty
in 40 CFR 261.7 are not subject to hazardous waste regulation and may
be recycled as scrap metal. They found this statement misleading
because it implies that the aerosol can must be RCRA empty, per 40 CFR
261.7, to be classified as exempt scrap metal. The commenter stated
that an aerosol container does not need to be completely empty or
triple rinsed (if it held a P-listed waste) to be classified and
recycled as scrap metal. However, it is a good management practice to
remove as much of the waste from the aerosol can as possible.
EPA Response. Under 40 CFR 261.1, ``scrap metal'' is defined as
bits and pieces of metal parts (e.g., bars, turnings, rods, sheets,
wire) or metal pieces that may be combined together with bolts or
soldering (e.g., radiators, scrap automobiles, railroad box cars),
which when worn or superfluous can be recycled. Under 40 CFR
261.6(a)(3)(ii), exempt scrap metal is not subject to regulation under
parts 262 through 268, part 270, or part 124, and is not subject to the
notification requirements of section 3010 of RCRA.
However, an aerosol can that still contains hazardous liquid and/or
hazardous compressed gas would not meet the definition of scrap metal
and would not be eligible for the scrap metal exemption. As EPA has
clearly stated, materials containing significant amounts of liquid
cannot be eligible to be exempt scrap metal.\21\ Thus while EPA agrees
that aerosol cans do not need to be triple rinsed prior to being
recycled as scrap metal, they do need to have their contents removed to
be considered scrap metal.
---------------------------------------------------------------------------
\21\ EPA 1985 Definition of Solid Waste Final Rule, 50 FR 614 at
624-625, January 4, 1985.
---------------------------------------------------------------------------
d. Comment: Universal Waste Handlers Should Not Be Required To Make a
Hazardous Waste Determination on the Emptied Cans
Summary of Comments. One commenter noted that 40 CFR
273.13(e)(3)(v) and 273.33(e)(3)(v) of the proposed rule require that
the universal waste handler ``Conduct a hazardous waste determination
on the emptied aerosol can and its contents per 40 CFR 262.11.'' While
the commenter agreed on the need for a hazardous waste determination to
be made on the contents, they stated that requiring it for the emptied
cans contradicts prior EPA guidance regarding scrap metal. The proposed
rule only allows for puncturing of cans on the condition that the empty
punctured aerosol cans be recycled. EPA has previously stated that a
formal hazardous waste determination is not required for scrap metal
being recycled under 40 CFR 261.6(a)(3)(ii).\22\
---------------------------------------------------------------------------
\22\ EPA 1993 Memorandum from Jeffrey D. Denit, Acting Director,
Office of Solid Waste to Gregory L. Crawford. Regulatory Status of
Used Residential And Commercial/Industrial Aerosol Cans, October 7,
1993, RO#11782; EPA 1994; Memorandum from to Michael H. Shapiro,
Director, Office of Solid Waste, to Michael C. Campbell, Regulatory
Status of Waste Aerosol Cans, January 1, 1994, RO#11806.
---------------------------------------------------------------------------
[[Page 67211]]
EPA response. EPA agrees with the comment and has removed the
language in 40 CFR 273.13(e)(3)(v) and 273.33(e)(3)(v) requiring a
waste determination to be made on the emptied aerosol can destined for
recycling.
B. Management Requirements for Aerosol Cans
1. Requirements for Small and Large Quantity Handlers
Under the final rule, the existing universal waste requirements
currently applicable to small quantity handlers of universal waste
(SQHUW) and large quantity handlers of universal waste (LQHUW) are also
applicable to handlers of discarded aerosol cans.\23\ For both SQHUWs
and LQHUWs, these requirements include waste management standards,
labeling and marking, accumulation time limits, employee training,
responses 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 finalizing
in 40 CFR 273.14 and 273.34 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).''
---------------------------------------------------------------------------
\23\ Note that EPA did not ask for comment or otherwise reopen
the pre-existing universal waste requirements that will now also
apply to universal waste aerosol cans. Comments on the pre-existing
universal waste requirements are beyond the scope of this
rulemaking.
---------------------------------------------------------------------------
In addition, EPA is finalizing that small and large quantity
universal waste handlers must follow certain specific management
standards while handling their universal waste aerosol cans. Under the
final rule, all handlers must manage their universal waste aerosol cans
in a manner designed to prevent releases to the environment. This
management 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. The accumulation
requirements in this final rule are similar to the existing
accumulation requirements for small and large quantity universal waste
handlers for other types of universal waste in 40 CFR 273.13 and 273.33
and are found in new paragraph (e) of each of these sections. 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 when the emptied cans are to be recycled, as described below.
Other than the comments on the requirements for puncturing and
draining at small and large quantity handlers, which are described
below, EPA received few comments on the requirements for small and
large quantity universal waste handlers. One state association urged
EPA to place limits on the accumulation requirements for universal
waste handlers by requiring separation of incompatible wastes because
of the wide array of products aerosol cans contain.\24\ EPA is
finalizing the performance-based standard that handlers must manage
their universal waste aerosol cans in a manner that prevents releases,
but EPA is not requiring separation of specific types of aerosol cans
whose contents may pose an incompatibility risk because EPA expects the
intact aerosol cans will ensure the contents of these cans will not mix
and therefore will not pose incompatibility risks. In addition, EPA is
requiring that universal waste aerosol cans that show evidence of
leakage must be packaged in a separate closed container or overpacked
with absorbents, or immediately punctured and drained in accordance
with the aerosol can universal waste requirements. (See 40 CFR
273.13(e)(2) and 40 CFR 273.33(e)(2)), thus removing the risk of
incompatible contents mixing during storage and transport.
---------------------------------------------------------------------------
\24\ See comment number 0073 in the docket for this rulemaking
(EPA-HQ-RCRA-2017-0463).
---------------------------------------------------------------------------
A waste management industry commenter suggested EPA require that
handlers accumulate universal waste aerosol cans in strong outer
packaging that will not be allowed to build pressure, that the contents
of the aerosol cans are compatible, and that protective caps are in
place or valve stems are removed to prevent the accidental release of
the contents of the aerosol cans during storage and handling.\25\ EPA
is finalizing, as proposed, the performance-based standards that
require the aerosol cans to be accumulated in containers that are
structurally sound and compatible with the contents of the cans. EPA is
not requiring handlers to remove the actuators to reduce the risk of
accidental release but is allowing handlers to do so prior to
accumulation if they choose.
---------------------------------------------------------------------------
\25\ See comment number 0063 in the docket for this rulemaking
(EPA-HQ-RCRA-2017-0463).
---------------------------------------------------------------------------
A state commenter suggested that EPA include more specific safety
measures to address the risk of cans bursting when exposed to excessive
heat during accumulation, regardless of whether the handler punctures
and drains the universal waste aerosol cans.\26\ In order to address
this risk, EPA added language to 40 CFR 273.13(e)(1) and 40 CFR
273.33(e)(1) to require the universal waste aerosol cans be accumulated
in a container that is protected from sources of heat. Sources of heat
include, but are not limited to, open flames; lighting; smoking;
cutting and welding; hot surfaces; frictional heat; static, electrical,
and mechanical sparks; and heat-producing chemical reactions.\27\ For
example, handlers should not allow smoking or open flames near
containers accumulating universal waste aerosol cans. It is the
responsibility of the operator to ensure that the containers
accumulating universal waste aerosol cans are protected from sources of
heat.
---------------------------------------------------------------------------
\26\ See comment number 0085 in the docket for this rulemaking
(EPA-HQ-RCRA-2017-0463).
\27\ This list is derived from OSHA's definition of ``sources of
ignition'' in 29 CFR 1910.106(h)(7)(i)(a).
---------------------------------------------------------------------------
2. Requirements on Puncturing and Draining at Small and Large Quantity
Handlers
a. Summary of Proposal
EPA proposed specific management standards for the puncturing and
draining of aerosol cans at universal waste handlers, similar to the
requirements being implemented in states that added aerosol cans to
their list of universal waste. EPA proposed that puncturing and
draining activities be conducted by a device specifically designed to
safely puncture aerosol cans and effectively contain the residual
contents and any emissions thereof.
EPA proposed that handlers must establish a written procedure
detailing how to safely puncture and drain universal waste aerosol cans
(including 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 on site, and ensure that employees operating the
devices are trained in the proper procedures.
EPA also proposed 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 so as to minimize human
exposure. This included, but was not limited to,
[[Page 67212]]
locating the equipment on a solid, flat surface in a well-ventilated
area.
In addition, EPA proposed that the contents from the cans should be
immediately transferred from the waste aerosol cans 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. If
the contents are hazardous waste, the handler becomes the hazardous
waste generator of the hazardous aerosol can contents and must manage
those wastes in accordance with applicable RCRA regulations.
The proposed rule also required that a written procedure 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 must be cleaned up
promptly.
EPA requested comment on establishing further limitations on the
puncturing and draining of aerosol cans that may contain wastes
incompatible with the puncturing and draining equipment or the contents
of other cans being drained. EPA also requested comment on limiting
puncturing and draining 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. Handlers that are
off-site commercial processors could 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, off-site commercial
processors that would like to puncture and drain aerosol cans would
have to first meet the requirements for a universal waste destination
facility (e.g., obtaining a permit for the storage of the hazardous
waste aerosol cans prior to recycling).
b. Summary of Comments
The most frequent comment EPA received on puncturing and draining
was on limiting handlers from puncturing and draining aerosol cans
received from off-site handlers. For example, waste management industry
commenters and some state commenters requested that EPA not allow off-
site handlers to puncture and drain aerosol cans collected from other
handlers unless they first meet the requirements for a universal waste
destination facility.\28\ On the other hand, an industry commenter and
a state commenter requested that EPA not limit which handlers can
puncture and drain aerosol cans.\29\ Multiple industry commenters
requested that, at a minimum, if EPA limits off-site handlers from
puncturing and draining, EPA still allow off-site handlers to puncture
and drain aerosol cans collected from other handlers in the same
company or handlers that are related entities.\30\
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\28\ See comment numbers 0063, 0074, 0085, and 0091 in the
docket for this rulemaking (EPA-HQ-RCRA-2017-0463).
\29\ See comment numbers 0029 and 0080 in the docket for this
rulemaking (EPA-HQ-RCRA-2017-0463).
\30\ See comment numbers 0077, 0087, and 0093 in the docket for
this rulemaking (EPA-HQ-RCRA-2017-0463).
---------------------------------------------------------------------------
EPA also received numerous comments on the specific management
standards for the puncturing and draining of aerosol cans at universal
waste handlers. EPA received broad comments from industry commenters
supporting the proposed standards for the puncturing and draining of
aerosol cans as sufficient and arguing that further limitations are not
necessary.\31\ EPA also received specific suggestions from industry
commenters on the management standards. For example, one commenter
recommended that EPA should not place additional limitations on
puncturing and draining designed to address potential incompatibility
concerns because they are not necessary.\32\ On the other hand, one
state requested that EPA prohibit handlers from puncturing and draining
aerosol cans with possible incompatibility with the puncturing and
draining equipment or the contents of other cans being drained.\33\
---------------------------------------------------------------------------
\31\ See comment numbers 0075 and 0083 in the docket for this
rulemaking (EPA-HQ-RCRA-2017-0463).
\32\ See comment number 0087 in the docket for this rulemaking
(EPA-HQ-RCRA-2017-0463).
\33\ See comment number 0077 in the docket for this rulemaking
(EPA-HQ-RCRA-2017-0463).
---------------------------------------------------------------------------
State associations commented that EPA should require puncturing and
draining to be conducted in a commercially-manufactured device and not
allow handlers to use ``homemade'' devices.\34\ A commenter from the
waste management industry argued that there is no basis for requiring
puncturing and draining to be conducted in a commercial device and
pointed out that many companies have designed and operated their own
equipment for such purposes based on their engineering expertise.\35\
---------------------------------------------------------------------------
\34\ See comment numbers 0073 and 0085 in the docket for this
rulemaking (EPA-HQ-RCRA-2017-0463).
\35\ See comment number 0074 in the docket for this rulemaking
(EPA-HQ-RCRA-2017-0463).
---------------------------------------------------------------------------
Commenters also asked for the requirement that puncturing and
draining activities be conducted in a device designed to effectively
contain the residual contents and emissions to be clarified.\36\
Specifically, commenters requested EPA clarify what ``effectively
contain'' means in relation to emissions and what constitutes
breakthrough.\37\ A state association commenter wrote that the only way
to ensure the puncturing and draining activities are containing
emissions it to implement an air monitoring program or to ensure the
devices are equipped with ``end of life'' filters that show when
breakthrough is occurring.\38\ An industry commenter wrote that a
requirement that allows for no breakthrough is not practical, but that
handlers can maximize collection of emissions by following manufacturer
instructions.\39\
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\36\ See comment numbers 0073 and 0085 in the docket for this
rulemaking (EPA-HQ-RCRA-2017-0463).
\37\ See comment numbers 0001, 0073, and 0085 in the docket for
this rulemaking (EPA-HQ-RCRA-2017-0463).
\38\ See comment number 0073 in the docket for this rulemaking
(EPA-HQ-RCRA-2017-0463).
\39\ See comment number 0001 in the docket for this rulemaking
(EPA-HQ-RCRA-2017-0463).
---------------------------------------------------------------------------
EPA also received comments from state associations urging EPA to
require handlers that puncture and drain to establish and follow a
written procedure detailing how to safely puncture aerosol cans rather
than only require handlers to establish a written procedure as
proposed.\40\ Commenters also pointed out that it is common practice to
operate puncturing and draining devices on spill catchment pallets to
aid in capturing accidental leaks or spills and asked EPA to allow this
under the final rule.\41\
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\40\ See comment numbers 0073 and 0085 in the docket for this
rulemaking (EPA-HQ-RCRA-2017-0463).
\41\ See comment number 0064 in the docket for this rulemaking
(EPA-HQ-RCRA-2017-0463).
---------------------------------------------------------------------------
c. Final Rule Provisions
EPA expects puncturing and draining activities at universal waste
handlers will differ from those currently performed by hazardous waste
generators. Because handlers 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 universal
waste regulations, handlers may 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. Thus, EPA
believes it is appropriate to include performance-
[[Page 67213]]
based management standards to address the risk of puncturing and
draining aerosol cans at universal waste handlers.
Despite the differences between recycling of aerosol cans at
hazardous waste generators versus recycling of aerosol cans at
universal waste handlers, under the final rule, EPA is not limiting
off-site handlers from puncturing and draining aerosol cans collected
from other handlers. Based on an observed lack of damage cases from
puncturing and draining aerosol cans in the manner described in this
rule, it appears that risks posed by universal waste handlers
puncturing and draining aerosol cans collected from other handlers is
relatively low. EPA has determined that the final management standards
for the puncturing and draining of aerosol cans at universal waste
handlers at 40 CFR 273.13(e)(4) and 40 CFR 273.33(e)(4) adequately
address the low risks. Additionally, the five of the six states that
have added aerosol cans to their list of universal wastes allow off-
site handlers to puncture and drain aerosol cans collected from other
handlers, and EPA is not aware of any damage cases resulting
specifically from the puncturing and draining under universal waste in
these states.\42\ In particular, State officials from Colorado stated
to EPA that their respective aerosol can universal waste programs have
been in effect for over 15 years, and they have not identified any
damage cases associated with puncturing and draining.\43\
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\42\ See supporting document number 0004 in the docket for this
rulemaking (EPA-HQ-RCRA-2017-0463).
\43\ See docket for this rulemaking (EPA-HQ-RCRA-2017-0463).
---------------------------------------------------------------------------
As mentioned, EPA is finalizing management standards for the
puncturing and draining of aerosol cans at universal waste handlers to
increase protections. Under the final rule, puncturing and draining
activities must be conducted by a device specifically designed to
safely puncture aerosol cans and effectively contain the residual
contents and any emissions thereof. EPA is not finalizing that the
puncturing and draining activities must be conducted in a commercial
device or a commercially-manufactured device and is instead finalizing
a performance-based standard. In response to comments, EPA is not
limiting universal waste handlers that have designed their own
equipment for puncturing and draining and operated it safely from
continuing to use that equipment. If a universal waste handler uses
specifically custom designed or retrofitted equipment to ensure that
the device safely punctures aerosol cans, it should ensure the
equipment is designed or retrofitted according to accepted engineering
practices based on established codes, standards, published technical
reports, or similar peer reviewed documents. Although EPA received
comments from the waste management industry arguing that their members
have safely designed and operated their own equipment for puncturing
and draining aerosol cans, EPA expects most universal waste handlers
will choose to purchase commercial devices designed to puncture aerosol
cans. 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.\44\ 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, that it does not become
overfilled, and that the container or tank storing the contents of the
drained aerosol cans is also kept in a well-ventilated area free from
sparks or ignition sources.
---------------------------------------------------------------------------
\44\ See supporting document 0003 in the docket for this
rulemaking (EPA-HQ-RCRA-2017-0463).
---------------------------------------------------------------------------
EPA received multiple comments arguing that the requirement that
puncturing and draining activities be conducted in a device designed to
effectively contain the residual contents and emissions needs to be
clarified.\45\ Specifically, commenters requested EPA clarify what
``effectively contain'' means in relation to emissions.\46\ The
performance of aerosol can puncturing and draining devices will vary by
manufacturer and it remains the responsibility of the operator to
ensure breakthrough is not occurring. Although commenters pointed out
that handlers could ensure devices are equipped with ``end of life''
filters that show when breakthrough is occurring, it is impractical to
impose this requirement on all universal waste handlers who use
puncturing and draining equipment because the manufacturer's guidance
with respect to containing emissions varies across the industry.\47\
For example, some manufacturers recommend limiting the number of cans
drained per filter while other manufacturers recommend weighing the
filter before and during use.\48\ Given the variability in the market,
it is impractical for EPA to determine a single, appropriate standard
for ensuring breakthrough is not occurring. Rather, EPA is finalizing
as proposed the performance-based standard that universal waste
handlers must use a device designed to safely puncture aerosol cans and
effectively contain the residual contents and any emissions thereof.
Universal waste handlers can minimize the potential for breakthrough by
maintaining the puncturing and draining device and replacing air
filters according to the manufacturer's specifications.
---------------------------------------------------------------------------
\45\ See comment numbers 0073 and 0085 in the docket for this
rulemaking (EPA-HQ-RCRA-2017-0463).
\46\ See comment numbers 0001, 0073, and 0085 in the docket for
this rulemaking (EPA-HQ-RCRA-2017-0463).
\47\ See supporting document 0003 in the docket for this
rulemaking (EPA-HQ-RCRA-2017-0463).
\48\ See comment number 0005 and supporting document 0003 in the
docket for this rulemaking (EPA-HQ-RCRA-2017-0463).
---------------------------------------------------------------------------
Because handlers are responsible for ensuring that the puncturing
device is properly draining the contents of the aerosol cans into the
drum, EPA is finalizing that handlers must establish and follow a
written procedure to ensure that handlers take the necessary
precautions to protect human health and the environment while
puncturing and draining universal waste aerosol cans. At a minimum, EPA
is requiring 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 ignitable wastes are stored away from heat or open
flames). In order to increase protections, EPA is clarifying in the
final rule that handlers must follow the written procedure.
Additionally, EPA is finalizing that handlers must maintain a copy of
the manufacturers' instructions on site and ensure employees operating
the device are trained in the proper procedures.
Although some states have issued guidelines for recommending
against puncturing and draining certain types of aerosol cans, there is
limited publicly
[[Page 67214]]
available data on the subset of aerosol cans that pose an
incompatibility risk. Additionally, since new products enter the market
and products are constantly changing, it is not practical to codify a
finite list of aerosol cans that pose an incompatibility risk.
Therefore, EPA is not providing a list of certain types of aerosol cans
that might pose incompatibility issues with puncturing devices or the
contents of other aerosol cans that are drained. However, it remains
the responsibility of the operator to ensure that the puncturing device
does not puncture aerosol cans that are incompatible with its materials
or the contents of other aerosol cans that are being drained. Because
aerosol cans are consumer products, aerosol cans have labels that
identify the products contained within, including any hazardous posed
by the contents which can assist handlers in ensuring they have
addressed incompatibility issues. As mentioned above, EPA is requiring
handlers to establish and follow a written procedure that addresses the
operation of the unit, including the segregation of incompatible
wastes. The operator can look to state guidance and manufacturer's
guidance for information. For example, manufacturers make information
available regarding potential incompatibilities between aerosol can
propellants and puncturing devices container rubber seals or
gaskets.\49\
---------------------------------------------------------------------------
\49\ See Compilation of Manufacturer's Guidance on Devices for
Puncturing and Draining Aerosol Cans, December 2017, in the docket
for this rulemaking (EPA-HQ-RCRA-2017-0463).
---------------------------------------------------------------------------
EPA is also finalizing that the actual puncturing of the cans be
done in a manner designed to prevent fires and to prevent the release
of the aerosol can contents to the environment so as to minimize human
exposure. This manner includes, but is not limited to, locating the
equipment on a solid, flat surface in a well-ventilated area.
Commenters pointed out that it is common practice to operate puncturing
and draining devices on spill catchment pallets to aid in capturing
accidental leaks or spills, which is allowed under the final rule if
the spill catchment pallet is located on a solid, flat surface.
In addition, EPA is finalizing that the handler must immediately
transfer the contents from the waste aerosol can, or the puncturing
device (if applicable), to a container or tank and conduct a hazardous
waste determination of the contents under 40 CFR 262.11. The handler
becomes the generator of any hazardous aerosol can contents and must
manage those wastes in accordance with applicable RCRA regulations.
The final rule also requires that a written procedure be in place
in the event of a spill or leak 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.
3. Requirements for Transporters
This final rule will 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 final rule also will not affect the applicability of shipping
requirements under the hazardous waste materials regulations of DOT.
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).
4. Requirements for Destination Facilities
This final rule will 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. Sec. 273.13(a) and (c) and 273.33(a) and (c)).
5. Effect of This 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 or
VSQGs 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 provisions, VSQGs may choose to manage
their hazardous waste aerosol cans in accordance with either the VSQG
regulations under 40 CFR 262.14 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)
will 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 final rule, handlers of universal
waste who accumulate 5,000 kilograms or more of this commingled aerosol
can waste at any time will 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 will not be required to be included in a
facility's determination of hazardous waste generator status (40 CFR
262.13(c)(6)). Therefore, a generator that manages such cans under the
requirements for universal waste and does not generate any other
hazardous waste will not be subject to other Subtitle C hazardous waste
management regulations, such as the hazardous waste generator
regulations in part 262. A universal waste handler that meets the
definition of a small quantity generator or large quantity generator in
40 CFR 260.10 for its other hazardous waste will be subject to the
hazardous waste generator regulations in part 262.
6. Applicability of Land Disposal Restriction Requirements
This final rule does 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 LDR requirements regarding testing,
tracking, and recordkeeping in 40 CFR 268.7, and the storage
prohibition in 40 CFR 268.50. EPA is amending 40 CFR 268.1(f) to add
aerosol can universal waste for consistency. This final rule also does
not change the regulatory status of destination facilities; they remain
subject to the full LDR requirements.
VI. Technical Corrections
As part of this rulemaking, EPA is finalizing four technical
corrections to the universal waste standards for mercury-containing
equipment in 40
[[Page 67215]]
CFR 273.13(c)(2)(iii) and (iv) and 273.33(c)(2)(iii) and (iv). Each of
these paragraphs contained 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 proposed
revisions to make the regulations refer to 40 CFR 262.16 or 262.17, as
applicable. As a result of a comment stating that this revision did not
include references to other potentially applicable paragraphs of the
hazardous waste generator regulations in part 262, EPA has revised the
language and is finalizing language that matches references in
Sec. Sec. 273.13(a) and 273.33(a). The final language states that
mercury from broken ampules must be transferred to a container subject
to all applicable requirements of 40 CFR parts 260 through 272.
VII. State Authority
A. Applicability of Final 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
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 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 final rule will be less stringent than the current Federal
program. Because states are not required to adopt less stringent
regulations, they will 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, 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.
VIII. 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 regulatory action was determined to be not significant and was
therefore not submitted to the Office of Management and Budget (OMB)
for review. This regulatory action was determined to be not significant
for purposed E.O. 12866 review. The Office of Management and Budget
(OMB) waived review.
B. Executive Order 13771: Reducing Regulations and Controlling
Regulatory Costs
This action is considered an Executive Order 13771 deregulatory
action. Details on the estimated cost savings of this final rule can be
found in EPA's analysis of the costs and benefits associated with this
action.
C. Paperwork Reduction Act (PRA)
The information collection activities in this final rule have been
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 1597.13 and ICR
number 2513.04. You can find a copy of the ICRs in the docket for this
rule, and they are briefly summarized here.
Because aerosol cans managed under the final rule are not counted
toward a facility's RCRA generator status, respondents will see a
reduction in burden. This reduction is because the aerosol cans will
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 hazardous waste they generate (that is not hazardous waste
aerosol cans or other universal wastes). The existing universal waste
requirements currently applicable to SQHUWs and LQHUWs will also be
applicable to handlers of aerosol can universal 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. EPA
ICR number 1597.13 focuses on the increased burden to the universal
waste program resulting from new facilities becoming universal waste
handlers. EPA ICR number 2513.04 focuses on the decrease in burden
associated with this regulation.
Respondents/affected entities: The information collection
requirements of the final rule affect facilities that handle aerosol
can universal waste and vary based on facility generator and handler
status.
Respondent's obligation to respond: The recordkeeping and
notification requirements are required to obtain a benefit under 40 CFR
part 273.
Estimated number of respondents: 970.
Frequency of response: One-time notification for LQHUWs; annual
[[Page 67216]]
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 62,621
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 $2.77 million. This cost savings is
composed of approximately $2.65 million in annualized avoided labor
costs and $23,000 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. When OMB
approves this ICR, the Agency will announce that approval in the
Federal Register and publish a technical amendment in 40 CFR part 9 to
display the OMB control number for the approved information collection
activities contained in this final rule.
D. Regulatory Flexibility Act (RFA)
I certify that this 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 final rule, 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 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 rule, this 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 rule, this 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 action does not have tribal implications as specified in
Executive Order 13175. Because the rule is expected to result in net
cost savings, EPA does not expect that it will result in any adverse
impacts on tribal entities. Thus, Executive Order 13175 does not apply
to this action.
H. Executive Order 13045: Protection of Children From Environmental
Health Risks and Safety Risks
This 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 action present a disproportionate risk to
children. This action's health and risk assessments are contained in
the Regulatory Impact Analysis found in the docket for this rule.
I. Executive Order 13211: Actions Concerning Regulations That
Significantly Affect Energy Supply, Distribution or Use
This 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 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 the Regulatory Impact
Analysis found in the docket for this rule.
L. Congressional Review Act (CRA)
This action is subject to the CRA, and the EPA will submit a rule
report to each House of the Congress and to the Comptroller General of
the United States. This action is not a ``major rule'' as defined by 5
U.S.C. 804(2).
List of Subjects
40 CFR Part 260
Environmental protection, Administrative practice and procedure,
Hazardous waste, Reporting and recordkeeping requirements.
40 CFR Part 261
Environmental protection, Hazardous waste, Recycling, Reporting and
recordkeeping requirements.
40 CFR Part 264
Environmental protection, Air pollution control, Hazardous waste,
Insurance, Packaging and containers, Reporting and recordkeeping
requirements, Security measures, Surety bonds.
40 CFR Part 265
Environmental protection, Air pollution control, Hazardous waste,
Insurance, Packaging and containers, Reporting and recordkeeping
requirements, Security measures, Surety bonds, Water supply.
40 CFR Part 268
Environmental protection, Hazardous waste, Reporting and
recordkeeping requirements.
40 CFR Part 270
Environmental protection, Administrative practice and procedure,
Confidential business information, Hazardous materials transportation,
Hazardous waste, Reporting and recordkeeping requirements, Water
pollution control, Water supply.
40 CFR Part 273
Environmental protection, Hazardous materials transportation,
Hazardous waste.
Dated: November 15, 2019.
Andrew R. Wheeler,
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 amended as follows:
PART 260--HAZARDOUS WASTE MANAGEMENT SYSTEM: GENERAL
0
1. The authority citation for part 260 continues to read as follows:
[[Page 67217]]
Authority: 42 U.S.C. 6905, 6912(a), 6921-6927, 6930, 6934,
6935, 6937, 6938, 6939, 6939g, 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. Republishing the introductory text for the definition ``Universal
waste'' and revising paragraphs (3) and (4) and adding paragraph (5);
and
0
c. In the definition of ``Universal waste handler,'' revising paragraph
(2)(i).
The additions and revisions read as follows:
Sec. 260.10 Definitions.
* * * * *
Aerosol can means a non-refillable receptacle containing a gas
compressed, liquefied, or dissolved under pressure, the sole purpose of
which is to expel a liquid, paste, or powder and fitted with a self-
closing release device allowing the contents to be ejected by the gas.
* * * * *
Universal waste means any of the following hazardous wastes that
are managed under the universal waste requirements of part 273 of this
chapter:
* * * * *
(3) Mercury-containing equipment as described in Sec. 273.4 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) * * *
(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:
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 revising paragraphs (c) and (d) and
adding paragraph (e) to read as follows:
Sec. 261.9 Requirements for Universal Waste.
* * * * *
(c) Mercury-containing equipment as described in Sec. 273.4 of
this chapter;
(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, 6925, and 6939g.
Subpart A--General
0
6. Section 264.1 is amended by revising paragraphs (g)(11)(iii) and
(iv) and adding paragraph (g)(11)(v) to read as follows:
Sec. 264.1 Purpose, scope and applicability.
* * * * *
(g) * * *
(11) * * *
(iii) Mercury-containing equipment as described in Sec. 273.4 of
this chapter;
(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, 6937, and 6939g.
Subpart A--General
0
8. Section 265.1 is amended by revising paragraphs (c)(14)(iii) and
(iv) and adding paragraph (c)(14)(v) to read as follows:
Sec. 265.1 Purpose, scope, and applicability.
* * * * *
(c) * * *
(14) * * *
(iii) Mercury-containing equipment as described in Sec. 273.4 of
this chapter;
(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 revising paragraphs (f)(3) and (4) and
adding paragraph (f)(5) to read as follows:
Sec. 268.1 Purpose, scope, and applicability.
* * * * *
(f) * * *
(3) Mercury-containing equipment as described in Sec. 273.4 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.
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 revising the section heading and
paragraphs (c)(2)(viii)(C) and (D) and adding paragraph (c)(2)(viii)(E)
to read as follows:
Sec. 270.1 Purpose and scope of the regulations in this part.
* * * * *
(c) * * *
(2) * * *
(viii) * * *
(C) Mercury-containing equipment as described in Sec. 273.4 of
this chapter;
(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 revising paragraphs (a)(3) and (4) and
adding paragraph (a)(5) to read as follows:
Sec. 273.1 Scope.
(a) * * *
(3) Mercury-containing equipment as described in Sec. 273.4;
[[Page 67218]]
(4) Lamps as described in Sec. 273.5; and
(5) Aerosol cans as described in Sec. 273.6.
* * * * *
0
15. Section 273.3 is amended by revising paragraph (b)(2) to read as
follows:
Sec. 273.3 Applicability--pesticides.
* * * * *
(b) * * *
(2) Pesticides not meeting the conditions set forth in paragraph
(a) of this section. These pesticides must be managed in compliance
with the hazardous waste regulations in 40 CFR parts 260 through 272,
except that aerosol cans as defined in Sec. 273.9 that contain
pesticides may be managed as aerosol can universal waste under Sec.
273.13(e) or Sec. 273.33(e);
* * * * *
0
16. Section 273.6 is added to read as follows:
Sec. 273.6 Applicability--Aerosol cans.
(a) Aerosol cans covered under this part. 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. The requirements of
this part do not apply to persons managing the following types of
aerosol cans:
(1) Aerosol cans that are not yet waste under part 261 of this
chapter. Paragraph (c) of this section describes when an aerosol can
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; and
(3) Aerosol cans that meet the standard for empty containers under
Sec. 261.7 of this chapter.
(c) Generation of waste aerosol cans. (1) A used aerosol can
becomes a waste on the date it is discarded.
(2) An unused aerosol can becomes a waste on the date the handler
decides to discard it.
0
17. 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'';
0
c. Revising the introductory text and paragraphs (3) and (4) and adding
paragraph (5) to the definition of ``Universal Waste'';
0
d. In the definition of ``Pesticide'':
0
i. Redesignating paragraphs (a), (b), and (c) as paragraphs (1), (2),
and (3), respectively;
0
ii. In newly redesignated paragraphs (1) and (2), removing the comma
and adding a semicolon in its place; and
0
iii. In newly redesignated paragraph (3), removing ``(a) or (b) of this
section'' and adding in its place ``(1) or (2)'' of this definition;
0
e. In the definition of ``Universal Waste Handler'':
0
i. Removing ``Waste Handler'' and adding ``waste handler'' in its
place;
0
ii. Redesignating paragraphs (a) introductory text, (a)(1) and (2), (b)
introductory text, and (b)(1) and (2) as paragraphs (1) introductory
text, (1)(i) and (ii), (2) introductory text, and (2)(i) and (ii),
respectively; and
0
iii. Revising newly redesignated paragraph (2)(i);
0
f. In the definition of ``Universal Waste Transfer Facility,'' removing
``Waste Transfer Facility'' and adding ``waste transfer facility'' in
its place; and
0
g. In the definition of ``Universal Waste Transporter,'' removing
``Waste Transporter'' and adding ``waste transporter'' in its place.
The revisions and additions read as follows:
Sec. 273.9 Definitions.
Aerosol can means a non-refillable receptacle containing a gas
compressed, liquefied, or dissolved under pressure, the sole purpose of
which is to expel a liquid, paste, or powder and fitted with a self-
closing release device allowing the contents to be ejected by the gas.
* * * * *
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:
* * * * *
(3) Mercury-containing equipment as described in Sec. 273.4;
(4) Lamps as described in Sec. 273.5; and
(5) Aerosol cans as described in Sec. 273.6.
* * * * *
Universal waste handler:
* * * * *
(2) * * *
(i) A person who treats (except under the provisions of Sec.
273.13(a) or (c), or Sec. 273.33(a) or (c)), disposes of, or recycles
(except under the provisions of Sec. 273.13(e) or Sec. 273.33(e))
universal waste; or
* * * * *
Subpart B--Standards for Small Quantity Handlers of Universal Waste
0
18. 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 is
subject to all applicable requirements of 40 CFR parts 260 through 272;
(iv) Immediately transfers any mercury resulting from spills or
leaks from broken ampules from the containment device to a container
that is subject to all applicable requirements of 40 CFR parts 260
through 272;
* * * * *
(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, lacks evidence of leakage, spillage, or damage that could cause
leakage under reasonably foreseeable conditions, and is protected from
sources of heat.
(2) Universal waste aerosol cans that show evidence of leakage must
be packaged in a separate closed container or overpacked with
absorbents, or immediately punctured and drained in accordance with the
requirements of paragraph (e)(4) of this section.
[[Page 67219]]
(3) 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;
and
(4) 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
universal 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 and follow a written procedure detailing how to
safely puncture and drain the 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 on site; and ensure employees operating the device are
trained in the proper procedures.
(iii) Ensure that puncturing of the can is done in a manner
designed to prevent fires and to prevent the release of any component
of universal waste to the environment. This manner 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 40 CFR 262.14, 262.15, 262.16, or
262.17.
(v) Conduct a hazardous waste determination on the contents of the
emptied aerosol can 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 to be nonhazardous, the handler
may manage the waste in any way that is in compliance with applicable
Federal, state, or local solid waste regulations.
(vii) A written procedure must be in place in the event of a spill
or leak 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
19. 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
20 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
21. Section 273.33 is amended by revising paragraphs (c)(2)(iii) and
(iv) 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 is
subject to all applicable requirements of 40 CFR parts 260 through 272;
(iv) Immediately transfers any mercury resulting from spills or
leaks from broken ampules from the containment device to a container is
subject to all applicable requirements of 40 CFR parts 260 through 272;
* * * * *
(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, lacks evidence of leakage, spillage, or damage that could cause
leakage under reasonably foreseeable conditions, and is protected from
sources of heat.
(2) Universal waste aerosol cans that show evidence of leakage must
be packaged in a separate closed container or overpacked with
absorbents, or immediately punctured and drained in accordance with the
requirements of paragraph (e)(4) of this section.
(3) 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;
(ii) Mixing intact cans in one container; and
(iii) Removing actuators to reduce the risk of accidental release;
and
(4) 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
universal 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 and follow a written procedure detailing how to
safely puncture and drain the 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 on site; and ensure employees operating the device are
trained in the proper procedures.
(iii) Ensure that puncturing of the can is done 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 40 CFR 262.14, 262.15, 262.16, or Sec.
262.17.
(v) Conduct a hazardous waste determination on the contents of the
emptied can 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 to be nonhazardous, the handler
may manage the waste in any way that is in compliance with applicable
Federal, state, or local solid waste regulations.
[[Page 67220]]
(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
22. 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. 2019-25674 Filed 12-6-19; 8:45 am]
BILLING CODE 6560-50-P
