The Pool of RCRA Universal Waste May Get Bigger
By Lynn L. Bergeson
On March 16, 2018, the U.S. Environmental Protection Agency (EPA) proposed to add hazardous waste aerosol cans to the category of “universal wastes” regulated under the federal Resource Conservation and Recovery Act (RCRA) regulations, codified at Title 40 of the C.F.R., Part 273. 83 Fed. Reg. 11654. According to EPA, this action would benefit the many manufacturing facilities and others that generate and manage large quantities of hazardous waste aerosol cans.
According to EPA, aerosol cans are widely used for dispensing a broad range of products including paints, solvents, pesticides, food, personal care products and many others. The Consumer Specialty Products Association estimates that 3.82 billion aerosol cans were filled in the United States in 2015 for use by commercial and industrial facilities and households.
In 1995, EPA promulgated the universal waste rule. The universal waste regulations are alternative hazardous waste management standards that operate in lieu of regulation codified at 40 CFR Parts 260 through 272 for specified hazardous wastes. EPA’s goal was 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.
Handlers and transporters who generate or manage items designated as a universal waste are subject to the management standards under Part 273 rather than the full RCRA subtitle C regulations. The streamlined standards include requirements for storage, labeling and marking, preparing the waste for shipment off site, employee training, response to releases, and, in the case of large quantity handlers, notification and tracking of universal waste shipments. Transporters of universal waste are also subject to less stringent requirements than the full subtitle C hazardous waste transportation regulations. The key difference between the universal waste transporter requirements and the subtitle C transportation requirements is that no manifest is required for the transport of universal waste.
Four states — California, Colorado, Utah and New Mexico — already have universal waste aerosol can programs in place, and two more states — Ohio and Minnesota — have proposed to add aerosol cans to their respective universal waste regulations. The universal waste programs in all of these states include streamlined management standards similar to the standards set forth under Part 273 for small and large quantity handlers of universal waste, including a one-year accumulation time limit for the aerosol cans. In addition, the four current state universal waste programs, as well as Ohio’s proposed regulations, set standards for puncturing and draining of aerosol cans by universal waste handlers.
In 2014, EPA published a Notice of Data Availability (NODA) for the Retail Sector as part of EPA’s ongoing efforts to fulfill its statutory mandate under RCRA. EPA requested information regarding aerosol cans, the quantity generated, and available waste management opportunities. Approximately 35 percent of NODA commenters expressed the view that discarded aerosol cans can be managed as universal waste as a means to encourage the environmentally sound collection and management of these materials. This high percentage motivated EPA to work with the Retail Sector to expand the categories of hazardous waste that can be managed as universal waste.
In the proposal, EPA states that the streamlined universal waste regulations proposed for aerosol cans are expected to ease regulatory burdens on retail stores and other establishments that discard aerosol cans by providing a clean, protective system for managing discarded aerosol cans. EPA also notes that the proposal is expected to promote the collection and recycling of aerosol cans, encourage the development of municipal and commercial programs to reduce the quantity of these wastes going to municipal solid waste landfills or combustors; and result in an annual cost savings of $3 million to $63.3 million.
As aerosol cans are “widely used for dispensing a broad range of products” including products regulated as pesticides, the proposed rule may have implications for chemical companies that create and distribute pesticide products marketed in aerosol cans. Hazardous waste aerosol cans that contain pesticides are also subject to Federal Insecticide, Fungicide and Rodenticide Act (FIFRA) requirements, including compliance with the instructions on the product label. Under 40 C.F.R. Section 156.78, a flammability label statement is required for pressurized pesticide products that states “[d]o not puncture or incinerate container,” but EPA’s 2004 determination allows for the puncturing of cans. The proposed rule states in relevant part:
EPA issued a determination that puncturing aerosol pesticide containers is consistent with the purposes of FIFRA and is therefore lawful pursuant to FIFRA section 2(ee)(6) provided that the following conditions are met:
- The puncturing of the container is performed by a person who, as a general part of his or her profession, performs recycling and/or disposal activities;
- The puncturing is conducted using a device specifically designed to safely puncture aerosol cans and effectively contain the residual contents and any emissions thereof; and
- The puncturing, waste collection, and disposal, are conducted in compliance with all applicable federal, state and local waste (solid and hazardous waste) and occupational safety and health laws and regulations.
The regulations distinguish between “large quantity handlers of universal waste,” defined to include those who handle more than 5,000 kilograms of total universal waste at one time, and “small quantity handlers of universal waste,” those who handle 5,000 kilograms or less of universal waste at one time. The 5,000-kilogram accumulation criterion applies to the quantity of all universal wastes accumulated. The streamlined standards include requirements for storage, labeling and marking, preparing 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. As noted, the primary difference between the universal waste transporter requirements and the subtitle C transportation requirements is that no manifest is required for transport of universal waste, a big concession to many regulated entities. The absence of manifest requirements is perceived to offer significant value to regulated entities.
The proposed rule makes a lot of sense and is expected to generate broad support. The diminished regulatory requirements in no way compromise human health or environmental protection, yet treatment under the universal waste regulatory system offers a significant upside for retailers and others who find themselves managing large quantities of aerosol cans that would otherwise be subject to RCRA subtitle C regulation. If issued in final, the proposal is expected to result in cost savings of up to $63.3 million, based on the assumption that all eligible states would adopt regulatory changes necessary to implement the program. This savings will enable EPA and others to devote increasingly limited federal resources to more deserving waste management priorities.
Impacted entities are encouraged to monitor this initiative. Comments on the proposed rule are due by May 15, 2018, but it is unclear at this writing if additional time to submit comments will be requested. Entities with much to gain from issuance of this rule in final are urged to comment and assist EPA by expressing support for the proposal.
Lynn L. Bergeson is Managing Partner of Bergeson & Campbell, P.C. (B&C), a Washington, D.C. law firm focusing on conventional, nanoscale and bio-based industrial, agricultural and specialty chemical product regulation and approval matters; environmental health and safety law; chemical product litigation; and associated business counseling and litigation issues. Bergeson is President of The Acta Group (Acta), with offices in Washington, D.C., Manchester, UK, and Beijing, China, and President of B&C Consortia Management LLC (BCCM) with offices in Washington, D.C. Visit www.lawbc.com for more information.