November 15, 2019

A New Rule

On November 15, 2019, the Environmental Protection Agency (EPA) issued a new rule (Docket No. EPA-HQ-OLEM-2017-0463) that adds hazardous waste aerosol cans to the list of universal wastes regulated under the Federal Resource Conservation and Recovery Act (RCRA). This change will provide clear guidelines to a variety of generators, including generators in the retail sector, who manage hazardous waste 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.

A Widespread Impact

The rule will be effective 60 days after its publication in the Federal Register, which suggests late Q1 or early Q2 2020 timeline. Several states have already begun recognizing aerosols as universal waste, including California, Colorado, New Mexico, Ohio, Utah, and Texas. It is noteworthy that several states have incorporated rules that reflect their unique concerns. For example, in Texas, only aerosols fitting the definition of paints and coatings are categorized as universal waste. This new rule affects a wide variety of generators and a significant amount of the hazardous waste generated in the United States. The table below shows recent statistics about who generates this material and how much is anticipated to be produced in the future.

2 Digit Total Affected

NAICS Large Quantity      Generated Tons

Primary NAICS Description            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


92 Public Administration 113   190

61 Educational Services  116   32

54 Professional, Scientific, 89   16

and Technical Services 

42 Wholesale Trade        75   511

22 Utilities        40   14

56 Administrative and Support        51   1,906

and Waste Management and

Remediation Services

All Other NAICS Codes        46   49

TOTAL        7,483           11,843


State Regulation Adoption

States with their own RCRA programs (as recognized by the EPA) will have to approve this addition to their state regulations. Since this is considered a relaxation of the previous regulations, it is not necessary that the authorized states approve these changes. It is best to check with your state to find out when, or if this regulation will be adopted. States without their own programs, such as Iowa and Alaska, will automatically adopt the new regulation at the time it goes into effect. Since some individual states have already acted independently, it will be important to understand the differences between the upcoming Federal rule versus the various State rules.

DOT Rules

Keep in mind, that aerosol cans first must be evaluated as “hazardous” per 40 CFR 261.3. Most aerosol cans use a flammable propellant such as butane, propane, etc. Additionally, even if the contents do not meet the definition of a hazardous waste, Department of Transportation (DOT) rules classify non-flammable gases as a shipping class 2.2 and should be packaged and shipped appropriately. Be careful to include these types of details when evaluating your solid waste items.

This new rule is designed to be consistent with the current DOT rules and adopts the basic definition of an aerosol from the existing definition in the DOT’s regulations found in 49 CFR 171.8. The primary elements of the DOT definition are that the can is a) designed to be non-refillable; b) has a self- closing release; and c) does not include poisons except for 6.1 PG III materials. Notice that there are no size limitations for an aerosol to utilize this rule. However, but the rule clearly excludes larger compressed gas containers in its definition.

All of the states that have already recognized aerosol cans as a universal waste have considered consolidation of the aerosol contents for disposal or reclaiming, as well as the actual recycling of the container itself. This new rule will allow that practice with certain parameters, such as a requirement that personnel performing this task must be trained adequately.

For merchants of aerosols, one of the biggest contributors to rendering the aerosol unusable is a damaged container. The new rule addresses how to manage those damaged items and to ship them in an appropriately designed container. Most of the other major comments and questions sent in to the EPA concerning this regulation were adopted, or at least modified in the final document. This includes discussions about the definition of an “empty container,” which the EPA held consistent to its original definition found in 40 CFR 271.7(b) for non-acute waste (40 CFR 261.31) and for acute waste (261.33(e )).