[Federal Register Volume 83, Number 52 (Friday, March 16, 2018)]
[Proposed Rules]
[Pages 11654-11667]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2018-05282]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Parts 260, 261, 264, 265, 268, 270, and 273

[EPA-HQ-OLEM-2017-0463; FRL-9975-44-OLEM]
RIN 2050-AG92


Increasing Recycling: Adding Aerosol Cans to the Universal Waste 
Regulations

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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SUMMARY: The Environmental Protection Agency (EPA or the Agency) is 
proposing to add hazardous waste aerosol cans to the universal waste 
program under the federal Resource Conservation and Recovery Act (RCRA) 
regulations. This proposed change, once finalized, would benefit the 
wide variety of establishments generating and managing hazardous waste 
aerosol cans, including the retail sector, by providing a clear, 
protective system for managing discarded aerosol cans. The streamlined 
universal waste regulations are expected to ease regulatory burdens on 
retail stores and others that discard hazardous waste aerosol cans; 
promote the collection and recycling of these cans; and encourage the 
development of municipal and commercial programs to reduce the quantity 
of these wastes going to municipal solid waste landfills or combustors.

DATES: Comments must be received on or before May 15, 2018. Under the 
Paperwork Reduction Act (PRA), comments on the information collection 
provisions are best assured of consideration if the Office of 
Management and Budget (OMB) receives a copy of your comments on or 
before April 16, 2018.

ADDRESSES: Submit your comments, identified by Docket ID No. EPA-HQ-

[[Page 11655]]

OLEM-2017-0463, at https://www.regulations.gov. Follow the online 
instructions for submitting comments. Once submitted, comments cannot 
be edited or removed from Regulations.gov. The EPA may publish any 
comment received to its public docket. Do not submit electronically any 
information you consider to be Confidential Business Information (CBI) 
or other information whose disclosure is restricted by statute. 
Multimedia submissions (audio, video, etc.) must be accompanied by a 
written comment. The written comment is considered the official comment 
and should include discussion of all points you wish to make. The EPA 
will generally not consider comments or comment contents located 
outside of the primary submission (i.e., on the web, cloud, or other 
file sharing system). For additional submission methods, the full EPA 
public comment policy, information about CBI or multimedia submissions, 
and general guidance on making effective comments, please visit https://www2.epa.gov/dockets/commenting-epa-dockets.

FOR FURTHER INFORMATION CONTACT: Tracy Atagi, Office of Land and 
Emergency Management (5304P), Environmental Protection Agency, 1200 
Pennsylvania Avenue NW, Washington, DC 20460; telephone number: 703-
308-8672; email address: [email protected], or Tiffany Kollar, Office 
of Land and Emergency Management (5304P), Environmental Protection 
Agency, 1200 Pennsylvania Avenue NW, Washington, DC 20460; telephone 
number: 703-308-8675; email address: [email protected].

SUPPLEMENTARY INFORMATION: 

I. General Information

A. Does this action apply to me?

    This proposed rulemaking would affect persons who generate, 
transport, treat, recycle, or dispose of hazardous waste aerosol cans, 
herein referred to as aerosol cans, unless those persons are households 
or very small quantity generators (VSQGs). Entities potentially 
affected by this action include over 18,000 industrial facilities in 18 
different industries (at the 2-digit North American Industry 
Classification System (NAICS) code level). Most of these industries 
have relatively few entities that are potentially affected. The two top 
economic sectors (at the 2-digit NAICS code level) with the largest 
percentage of potentially affected entities are the retail trade 
industry (NAICS code 44-45), representing 65% of the affected Large 
Quantity Generator universe, and Manufacturing (NAICS code 31-33), 
representing 20% of the affected Large Quantity Generator universe. 
Potentially affected categories and entities include, but are not 
necessarily limited to:

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                                                                              Total affected
         2 Digit NAICS code                 Primary NAICS description         large quantity     Generated tons
                                                                                generators
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44-45...............................  Retail Trade........................              4,225              395.8
31-33...............................  Manufacturing.......................              1,327            6,767.2
48-49...............................  Transportation and Warehousing......                138            1,214.9
62..................................  Health Care and Social Assistance...                179               29.5
92..................................  Public Administration...............                116              186.8
61..................................  Educational Services................                126               18.0
54..................................  Professional, Scientific, and                        81               63.6
                                       Technical Services.
56..................................  Administrative and Support and Waste                112            2,655.2
                                       Management and Remediation Services.
42..................................  Wholesale Trade.....................                 73              130.0
22..................................  Utilities...........................                 32                6.8
81..................................  Other Services (except Public                        65                4.2
                                       Administration).
21..................................  Mining, Quarrying, and Oil and Gas                   28               10.3
                                       Extraction.
23..................................  Construction........................                  4               24.1
71..................................  Arts, Entertainment, and Recreation.                  3                3.2
55..................................  Management of Companies and                           6                0.6
                                       Enterprises.
53..................................  Real Estate and Rental and Leasing..                  3                0.6
51..................................  Information.........................                  1                0.5
11..................................  Agriculture, Forestry, Fishing and                    1                0.0
                                       Hunting.
                                                                           -------------------------------------
    Total...........................  ....................................              6,520           11,511.3
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    This table is not intended to be exhaustive, but rather provides a 
guide for readers regarding entities likely to be regulated by this 
action. This table lists the types of entities that EPA is now aware 
could potentially be regulated by this action. Other entities not 
listed in the table could also be regulated. To determine whether your 
entity is regulated by this action, you should carefully examine the 
applicability criteria found in Section IV of this action. If you have 
questions regarding the applicability of this action to a particular 
entity, consult the person listed in the FOR FURTHER INFORMATION 
CONTACT section.

B. What action is the agency taking?

    The Environmental Protection Agency (EPA) is proposing to add 
hazardous waste aerosol cans to the list of universal wastes regulated 
under the Resource Conservation and Recovery Act (RCRA) regulations. 
This proposed change, once finalized, would benefit the wide variety of 
establishments generating and managing aerosol cans, including the 
retail sector, by providing a clear, practical system for handling 
discarded aerosol cans.

C. What is the agency's authority for taking this action?

    These regulations are proposed under the authority of sections 
2002(a), 3001, 3002, 3004, and 3006 of the Solid Waste Disposal Act, as 
amended by the Resource Conservation and Recovery Act (RCRA), and as 
amended by the Hazardous and Solid Waste Amendments (HSWA), 42 U.S.C. 
6921(a), 6921, 6922, 6924, and 6926.

D. What are the incremental costs and benefits of this action?

    This proposed action, if finalized as proposed, is expected to 
result in an annual cost savings of $3.0 million to $63.3 million. 
Information on the estimated future economic impacts of this action is 
presented in Section VII of this notice, as well as in the Regulatory 
Impact Analysis (RIA) available in the docket for this proposed action. 
Note

[[Page 11656]]

that the expected cost savings is based on the assumption that all 
eligible states would adopt regulatory changes, once they are 
finalized. EPA requests comment on this assumption.
    In addition to cost savings, EPA's analysis shows qualitative 
benefits to adding aerosol cans to the universal waste program, 
including improved implementation of and compliance with the hazardous 
waste program and increased recovery and recycling of aerosol cans.

II. Background

A. Description of Aerosol Cans

    Aerosol cans are widely used for dispensing a broad range of 
products including paints, solvents, pesticides, food and personal care 
products, and many others. The Consumer Specialty Products Association 
(CSPA) estimates that 3.82 billion aerosol cans were filled in the 
United States in 2015 for use by commercial and industrial facilities 
as well as by households.\1\
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    \1\ Consumer Specialty Product Association, What's New, Industry 
Updates and Association Highlights, June 2016. https://www.cspa.org/aerosol-products-industry-growing-steadily-survey-reveals-north-american-production-reaches-historic-high/, retrieved November 8, 
2017.
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    A typical aerosol can consists of several components, including 
(but not limited to): (1) The can or container storing both propellant 
and the product; (2) an actuator or button at the top of the can that 
is pressed to deliver the product; (3) a valve which controls delivery 
or flow of the product; (4) the propellant (a compressed gas or 
liquefied gas), which provides the pressure in the container to expel 
or release the product when the actuator is pressed to open the valve; 
(5) the product itself; and (6) a dip tube which is connected to the 
valve to bring the product up through the can to be released when the 
actuator is pressed.\2\
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    \2\ National Aerosol Association, History of the Aerosol, http://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. One or more of 
the following may occur when a can bursts as a result of over-heating: 
(1) If the propellant or product are ignitable, the contents of the can 
may readily catch fire as they are released and exposed to atmospheric 
oxygen, creating a rapidly burning vapor ``fireball''; (2) the bottom 
of the can may detach as a result of a manufacturing defect or an 
external force, causing the upper part of the can to become a 
projectile; or (3) the can may fragment as it bursts, releasing metal 
shards.
    Aerosol cans frequently contain flammable propellants such as 
propane or butane which can cause the aerosol can to demonstrate the 
hazardous characteristic for ignitability (40 CFR 261.21).\3\ In 
addition, the aerosol can may also be a hazardous waste for other 
reasons when discarded. More specifically, an aerosol can may contain 
materials that exhibit hazardous characteristics per 40 CFR part 261 
subpart C. Similarly, a discarded aerosol can may also be a P or U-
listed hazardous waste if it contains a commercial chemical product 
found at 40 CFR 261.33(e) or (f).
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    \3\ University of Vermont, Paint and Aerosol Safety, http://www.uvm.edu/safety/art/paint-aerosol-safety, retrieved December 11, 
2017.
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B. Current Federal Regulation of Aerosol Cans

1. Regulation of Aerosol Cans Under the Resource Conservation and 
Recovery Act (RCRA)
    Any person who generates a solid waste, as defined in 40 CFR 261.2, 
must determine whether the solid waste qualifies as hazardous waste. 
The waste may be hazardous either because it is listed as a hazardous 
waste in subpart D of 40 CFR part 261 or because it exhibits one or 
more of the characteristics of hazardous waste, as provided in subpart 
C of 40 CFR part 261. As discussed above, aerosol cans are frequently 
hazardous due to the ignitability characteristic, and in some cases may 
also contain listed or exhibit other hazardous waste 
characteristics.\4\
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    \4\ Aerosol cans that have not been discarded are not solid or 
hazardous wastes.
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    Many, but not all, generators of aerosol cans identified or listed 
as a hazardous waste are subject to the full RCRA subtitle C hazardous 
waste management requirements, including all applicable requirements of 
40 CFR parts 260 through 268. Depending on their activities, some 
generators have only to meet the requirements of part 262, including 
on-site management, pre-transport, and manifesting. Under 40 CFR 
262.14, very small quantity generators (VSQGs), defined as facilities 
that generate less than or equal to 100 kilograms of hazardous waste in 
a calendar month, are not subject to the RCRA subtitle C hazardous 
waste management standards, provided they send their waste to a 
municipal solid waste landfill or non-municipal nonhazardous waste 
facility approved by the state for the management of VSQG wastes and 
meet other conditions. In addition, households that generate waste 
aerosol cans are exempt from the federal hazardous waste management 
requirements under the household hazardous waste exemption in 40 CFR 
261.4(b)(1).\5\
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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, facilities receiving hazardous waste aerosol cans 
from off-site would require a RCRA permit for storage prior to the 
recycling activity, and the recycling process would be subject to 
subparts AA and BB of 40 CFR part 264, 265, or 267.
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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 (FIFRA)
    Hazardous waste aerosol cans that contain pesticides are also 
subject to the requirements of Federal Insecticide, Fungicide, and 
Rodenticide Act (FIFRA), including compliance with the instructions on 
the label. In general, the statement on aerosol pesticide product FIFRA 
labels prohibits the puncturing of the cans. However, in April 2004, 
EPA

[[Page 11657]]

issued a determination \7\ that puncturing aerosol pesticide containers 
is consistent with the purposes of FIFRA and is therefore lawful 
pursuant to FIFRA section 2(ee)(6) provided that the following 
conditions are met:
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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, available in the docket for this rule.
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     The puncturing of the container is performed by a person 
who, as a general part of his or her profession, performs recycling 
and/or disposal activities;
     The puncturing is conducted using a device specifically 
designed to safely puncture aerosol cans and effectively contain the 
residual contents and any emissions thereof; and
     The puncturing, waste collection, and disposal, are 
conducted in compliance with all applicable federal, state and local 
waste (solid and hazardous waste) and occupational safety and health 
laws and regulations.
    EPA anticipates that this 2004 FIFRA determination would not be 
affected by the proposed addition of hazardous waste aerosol cans to 
the universal waste rules.

C. Retail Strategy and Aerosol Cans

    The retail sector as a whole handles a very large number of diverse 
products, which change over time and may, in many instances, become 
regulated as hazardous waste under RCRA when discarded. As a result, 
retailers are required to make hazardous waste determinations for a 
variety of products being discarded at stores located across the 
country.
    In 2014, EPA published a Notice of Data Availability (NODA) for the 
Retail Sector as part of the Agency's continuing efforts to better 
understand concerns from all stakeholders regarding RCRA's 
applicability to the retail sector, as well as to obtain information 
and feedback on issues affecting the retail sector. (79 FR 8926, 
February 14, 2014) In the NODA, EPA requested comment on a series of 
topics related to retail operations, waste management practices and 
management of materials that may become hazardous waste when discarded. 
This specifically included requests for information regarding aerosol 
cans (e.g., quantity generated, classification and management options, 
including handling as universal waste), since aerosol cans comprise a 
large percentage of the retail sector's hazardous waste stream. 
Approximately 35% of NODA commenters specifically suggested that 
discarded aerosol cans be managed as universal waste.
    In response to comments on the Retail Sector NODA, the Agency 
published the Strategy for Addressing the Retail Sector under RCRA's 
Regulatory Framework, which lays out a cohesive plan to address the 
unique challenges faced by the retail sector in complying with RCRA 
regulations while reducing burden and protecting human health and the 
environment.\8\ One of the action items under the Retail Strategy is to 
explore adding hazardous waste aerosol cans to the universal waste 
rule.
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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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D. Universal Waste Rule

    In 1995, EPA promulgated the universal waste rule (60 FR 25492, May 
11, 1995) to establish a streamlined hazardous waste management system 
for widely generated hazardous wastes as a way to encourage 
environmentally sound collection and proper management of the wastes 
within the system. Hazardous waste batteries, certain hazardous waste 
pesticides, mercury-containing equipment, and hazardous waste lamps are 
already included on the federal list of universal wastes. The universal 
waste regulations in 40 CFR part 273 are a set of alternative hazardous 
waste management standards that operate in lieu of regulation under 40 
CFR parts 260 through 272 for specified hazardous wastes.
    Handlers and transporters who generate or manage items designated 
as a universal waste are subject to the management standards under 40 
CFR part 273, rather than the full RCRA subtitle C regulations. 
Handlers include both facilities that generate universal waste and 
facilities that receive universal waste from other universal waste 
handlers, accumulate the universal waste and then send the universal 
waste to another handler, a destination facility or a foreign 
destination. Handlers do not include facilities that treat, dispose of, 
or recycle universal waste except as provided in the universal waste 
regulations. The regulations distinguish between ``large quantity 
handlers of universal waste'' (those who handle more than 5,000 
kilograms of total universal waste at one time) and ``small quantity 
handlers of universal waste'' (those who handle 5,000 kilograms or less 
of universal waste at one time). The 5,000-kilogram accumulation 
criterion applies to the quantity of all universal wastes accumulated. 
The streamlined standards include requirements for storage, labeling 
and marking, preparing the waste for shipment off site, employee 
training, response to releases, and, in the case of large quantity 
handlers, notification and tracking of universal waste shipments. 
Transporters of universal waste are also subject to less stringent 
requirements than the full subtitle C hazardous waste transportation 
regulations. The primary difference between the universal waste 
transporter requirements and the subtitle C transportation requirements 
is that no manifest is required for transport of universal waste.
    Under the universal waste rule, destination facilities are those 
facilities that treat, store, dispose, or recycle universal wastes. 
Universal waste destination facilities are subject to all currently 
applicable requirements for hazardous waste treatment, storage, and 
disposal facilities (TSDFs) and must receive a RCRA permit for such 
activities. Destination facilities that recycle universal waste and 
that do not store that universal waste prior to recycling in accordance 
with 40 CFR 261.6(c)(2) may be exempt from permitting under the federal 
regulations (see 40 CFR 273.60(b)). Finally, some states are authorized 
to add wastes that are not federal universal wastes to their lists of 
universal wastes. Therefore, in some states, aerosol cans are already 
regulated as a universal waste.

E. State Universal Waste Programs That Include Aerosol Cans

    Four states, California, Colorado, Utah and New Mexico, already 
have universal waste aerosol can programs in place, and two more 
states, Ohio and Minnesota, have proposed to add aerosol cans to their 
universal waste regulations.\9\ The universal waste programs in all 
these states include streamlined management standards similar to 40 CFR 
part 273 for small and large quantity handlers of universal waste, and 
a one-year accumulation time limit for the aerosol cans. In addition, 
the four current state universal waste programs, as well as Ohio's 
proposed regulations, set standards for puncturing and draining of 
aerosol cans by universal waste handlers.
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    \9\ EPA 2017. Summary of State Programs Addressing Aerosol Cans 
Under RCRA Hazardous Waste Regulations or Under State Universal 
Waste Programs.
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    The aerosol can universal waste programs of California, Colorado, 
Utah and New Mexico, as well as Ohio's proposed aerosol can universal 
waste program, allow for puncturing and draining of aerosol cans by 
universal

[[Page 11658]]

waste handlers, as long as specific management standards and waste 
characterization requirements are met. In addition, California does not 
allow off-site commercial processors \10\ to puncture and drain aerosol 
cans without a permit, and requires those handlers that do puncture and 
drain cans to submit a notification. Minnesota's proposed rule would 
not allow handlers to puncture and drain their aerosol cans.
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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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III. Rationale for Proposing Aerosol Cans Be Managed Under the 
Universal Waste Rule

A. Factors for Inclusion in the Universal Waste Rule

    EPA is proposing to add aerosol cans to the universal waste rule, 
because the Agency believes that this waste meets the factors that 
describe hazardous waste that is appropriate for management under the 
streamlined universal waste system. Adding aerosol cans to the 
universal waste rule simplifies handling and disposal of the wastes for 
generators, while ensuring that aerosol cans are sent to the 
appropriate destination facilities, where they will be managed as a 
hazardous waste with all applicable subtitle C requirements. Management 
as universal waste under the proposed requirements is also expected to 
facilitate environmentally sound recycling of the metal used to make 
the cans. The universal waste regulations include eight factors to 
consider in evaluating whether a waste is appropriate for inclusion in 
the universal waste rule. These factors, codified at 40 CFR 273.81, are 
to be used to determine whether regulating a particular hazardous waste 
under the streamlined standards would improve overall management of the 
waste and, therefore, whether the waste is a good candidate for the 
universal waste rule. As the Agency noted in the preamble to the final 
universal waste rule (60 FR 25513), not every factor must be met for a 
waste to be appropriately regulated under the universal waste system. 
However, consideration of all the factors should result in a conclusion 
that regulating a particular hazardous waste under 40 CFR part 273 will 
improve waste management. EPA has examined information on aerosol cans, 
including information submitted in the public comments on the 2014 
Retail NODA,\11\ using the criteria in 40 CFR 273.81. In light of its 
evaluation of this information, the Agency is proposing that on 
balance, these wastes are appropriate for inclusion onto the federal 
list of universal wastes for management under part 273. EPA believes 
that adding aerosol cans to the universal waste rule would make 
collection and transportation of this waste to an appropriate facility 
easier and, therefore, will help facilitate recycling and reduce the 
amount of aerosol cans disposed of in municipal landfills. A summary of 
how the criteria in 40 CFR 273.81 apply to aerosol cans is described 
below. EPA solicits comment on this analysis.
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    \11\ Public comments on the 2014 Retail NODA can be found in 
docket number EPA-HQ-RCRA-2012-0426 on regulations.gov.
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1. The Waste, as Generated by a Wide Variety of Generators, Should Be a 
Listed or Characteristic Hazardous Waste (40 CFR 273.81(a))
    As discussed in Section III, aerosol cans frequently demonstrate 
the hazardous characteristic for ignitability (40 CFR 261.21) due to 
the nature of the propellant used. In addition, the contents 
(propellant or product) may also cause the can to be a hazardous waste 
for other reasons if discarded.
2. The Waste, or Category of Waste, Should Not Be Exclusive to a 
Particular Industry or Group of Industries, But Generated by a Wide 
Variety of Establishments (40 CFR 273.81(b))
    EPA has documented in the Regulatory Impact Analysis (RIA) 
developed for this proposal, that large and small quantity generators 
that manage hazardous waste aerosol cans can be found in 18 different 
industries (at the 2-digit North American Industry Classification 
System (NAICS) code level). Thus, aerosol cans are commonly generated 
by a wide variety of types of establishments, including households, 
retail and commercial businesses, office complexes, very small quantity 
generators, small businesses, government organizations, as well as 
large industrial facilities.
3. The Waste Should Be Generated by a Large Number of Generators and 
Frequently Generated in Relatively Small Quantities (40 CFR 273.81(c))
    As documented in the RIA, more than 18,000 large and small quantity 
generators manage hazardous waste aerosol cans. Quantities generated 
vary depending on the type of generator and the situations associated 
with generation. For example, a retail store may determine that large 
quantities of aerosol cans, which can no longer be sold or donated, 
must be discarded as hazardous waste. On the other hand, entities that 
use aerosol cans in their day-to-day operations may generate small 
quantities of partially-used hazardous waste aerosol cans on a sporadic 
basis. Data from the RIA demonstrate that in 2015, large quantity 
generators that generated hazardous waste aerosol cans generated an 
average of 1.8 tons per year (approximately 4,100 cans), while small 
quantity generators generated an average of 0.5 tons per year 
(approximately 1,100 cans). The median amounts are 0.12 tons 
(approximately 274 cans) and 0.04 tons (approximately 85 cans) for 
large quantity generators and small quantity generators respectively, 
per year.
4. Systems To Be Used for Collecting the Waste (Including Packaging, 
Marking, and Labeling Practices) Should Ensure Close Stewardship of the 
Waste (40 CFR 273.81(d))
    The baseline universal waste requirements of notification, 
labeling, training, response to releases found in 40 CFR part 273 
subparts B and C and the proposed specific requirements for management 
of aerosol cans in 40 CFR 273.13 and 40 CFR 273.33 as discussed Section 
IV below are designed to ensure close stewardship of the hazardous 
waste aerosol cans.
5. Risks Posed by the Waste During Accumulation and Transport Should Be 
Relatively Low Compared to the Risks Posed by Other Hazardous Waste, 
and Specific Management Standards Would Be Protective of Human Health 
and the Environment During Accumulation and Transport (40 CFR 
273.81(e))
    Aerosol cans are designed to contain the products they hold during 
the periods of storage and transportation as they move from the 
manufacturer, to the retailer, and ultimately to the final customer. As 
long as they remain intact, therefore, EPA expects that hazardous waste 
aerosol cans would present a lower risk as compared to other types of 
hazardous waste that are not contained as-generated under normal 
management conditions. In addition, the ignitability risk posed during 
accumulation and transport is addressed by standards set by the 
Department of Transportation, Office of Safety and Health 
Administration, and local fire codes.\12\

[[Page 11659]]

These standards include requirements for outer packaging and can 
design, including limits on the amount of flammable gas and general 
pressure conditions.
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    \12\ For example, DOT--49 CFR 173.306 for Shipping of Limited 
Quantities, Aerosol Cans and 49 CFR 173.115 for Flammable Gas, 
OSHA--29 CFR 1910.106(d)(6), Flammable Liquids, 2015 NFPA--Chapter 
30, Flammable and Combustible Liquids Code, and Chapter 30B, Code 
for the Manufacture and Storage of Aerosol Products.
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    Finally, as discussed below, the proposed management standards for 
aerosol cans that are punctured and drained at the handler would 
address the ignitability risk, and help prevent releases, and thus EPA 
believes that the risks posed by the activities proposed are addressed 
by the universal waste designation.
6. Regulation of the Waste Under 40 CFR Part 273 Will Increase the 
Likelihood That the Waste Will Be Diverted From Non-Hazardous Waste 
Management Systems (e.g., the Municipal Solid Waste Stream) to 
Recycling, Treatment, or Disposal in Compliance With Subtitle C of RCRA 
(40 CFR 273.81(f))
    Managing hazardous waste aerosol cans under the universal waste 
program is expected to increase the number of these items collected, 
and to increase the number of aerosol cans being diverted from the non-
hazardous waste stream into the hazardous waste stream because it would 
allow generators, especially those that generate this waste 
sporadically, to send it to a central consolidation point. Under the 
universal waste rule, a handler of universal waste can send the 
universal waste to another handler, where it can be consolidated into a 
larger shipment for transport to a destination facility. Therefore, 
under the proposed rule it would be more economical to send hazardous 
waste aerosol cans to recycling for recovery of metal values. EPA thus 
expects such management to not only advance the RCRA goal of increased 
resource conservation, but also to increase proper disposal as 
hazardous waste, making it less likely that it will be sent for 
improper disposal in municipal landfills or municipal incinerators. In 
addition, because of the streamlined structure of the universal waste 
rule makes aerosol can collection programs more economical, hazardous 
waste aerosol cans that might otherwise be sent to a municipal landfill 
under a VSQG or household hazardous waste exemption, would be more 
easily collected and consolidated for hazardous waste disposal by those 
who are interested in managing it this way. This waste would be 
diverted from the municipal solid waste stream to universal waste 
management.
7. Regulation of the Waste Under 40 CFR Part 273 Will Improve the 
Implementation and Compliance With the Hazardous Waste Regulatory 
Program (40 CFR 273.81(g))
    The structure and requirements of the universal waste rule are well 
suited to the circumstances of handlers of hazardous waste aerosol cans 
and their participation in the universal waste program will improve 
compliance with the hazardous waste regulations. In particular, 
handlers of hazardous waste aerosol cans who are infrequent generators 
of hazardous waste and who might otherwise be unfamiliar with the more 
complex subtitle C management structure, but who generate hazardous 
waste aerosol cans will be able to more easily send this waste for 
proper management. Therefore, adding aerosol cans to the universal 
waste rule would offer a protective hazardous waste management system 
that is likely to be more accessible, particularly for the retail 
sector, which can pose unique compliance challenges as compared to 
manufacturing and other ``traditional'' RCRA-regulated sectors.\13\
---------------------------------------------------------------------------

    \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.
---------------------------------------------------------------------------

8. Additional Factor (40 CFR 273.81(h)): States' Experience Under 
Existing State Universal Waste Programs Indicates That Regulation Under 
40 CFR Part 273 Will Improve Management of Aerosol Cans
    As discussed above, the factors included in 40 CFR 273.81 are 
designed to determine whether regulating a particular hazardous waste 
under the streamlined standards of the universal waste rules would 
improve the overall management of the waste. Because in this case, as 
at least four states have added aerosol cans to their universal waste 
programs, those states' experiences with management of aerosol cans 
under their respective universal waste programs provides a useful 
source of information to inform EPA's judgment on whether to propose 
adding aerosol cans to the national universal waste program.
    Information supplied to EPA from those states' officials indicates 
that their programs improve the implementation of the hazardous waste 
program. Specifically, State waste management officials have 
represented to EPA that these programs have been operating well and 
achieving their objective of facilitating safe management of hazardous 
waste aerosol cans.\14\ In particular, state officials from both 
California and Colorado stated to EPA that their respective aerosol can 
universal waste programs have been in effect since 2002, and they have 
not identified any problems with compliance with the standards. 
Accordingly, this information also weighs in favor of concluding that 
management of aerosol cans under the federal universal waste 
regulations is likely to be successful.
---------------------------------------------------------------------------

    \14\ EPA 2017. Summary of State Programs Addressing Aerosol Cans 
Under RCRA Hazardous Waste Regulations or Under State Universal 
Waste Programs. December 2017.
---------------------------------------------------------------------------

B. Expected Changes in Management of Aerosol Cans

    If EPA's proposal to include aerosol cans in the list of Universal 
Waste is finalized as proposed, EPA expects that the number of aerosol 
cans that are diverted from municipal solid waste landfills and 
incinerators to recycling or disposal in subtitle C facilities would 
increase. Small and large quantity generators are already required to 
manage their hazardous waste aerosol cans under RCRA subtitle C. As a 
result of implementation of this rule in the states, some of these 
generators would likely begin managing their aerosol cans as a 
universal waste, either to save money or to improve implementation of 
their existing waste management program. One of the streamlined 
provisions of the universal waste rule allows consolidation of aerosol 
cans at central locations, which makes it easier for smaller users to 
arrange for hazardous waste recycling or disposal of these materials 
when they are generated. EPA intends to encourage individual households 
and VSQGs to participate in such programs, which would divert aerosol 
cans from the municipal waste stream.
    In summary, EPA believes that management of hazardous waste aerosol 
cans can best be implemented through a universal waste approach where 
handlers are operating within a simple, streamlined management system 
with some limited oversight. The universal waste program addresses the 
environmental concerns surrounding the management of such wastes, while 
at the same time putting into place a structure that will allow for and 
encourage increased collection of aerosol cans for recycling.

IV. Discussion of Proposed Rule

A. Waste Covered by Proposed Rule

    EPA is proposing that an ``aerosol can'' be defined as an intact 
container

[[Page 11660]]

in which gas under pressure is used to aerate and dispense any material 
through a valve in the form of a spray or foam. This definition is the 
same as the definition of aerosol can in the California, Colorado, New 
Mexico and Utah universal waste programs, with the exception of a size 
limit in Utah's definition of aerosol can, as described below. EPA is 
proposing to adopt this definition of aerosol can to keep consistency 
with the existing state programs.
    EPA also intends this definition to be limited to sealed containers 
whose intended use is to dispense a material by means of a propellant 
or compressed gas. Aerosol cans are designed to contain those materials 
until they are intended for release and to present minimal risk during 
normal storage and transport. Other types of containers, including 
compressed gas canisters and propane cylinders, present a greater risk 
than aerosol cans and would not be included.
    Utah's definition of aerosol cans includes a size limitation of 
twenty-four ounces for aerosol cans that would qualify under their 
universal waste provisions. EPA has not, however, included a size 
limitation on universal waste aerosol cans in this proposal because EPA 
believes that aerosol cans that meet the proposed definition in general 
can be safely managed under the universal waste system for the reasons 
explained in Section III above, and has not identified reasons why size 
would affect the considerations described. However, EPA requests 
comment on whether to include a size limit of twenty-four ounces or 
other type of limitations on the types of aerosol cans that would be 
eligible for the federal universal waste rule, including any 
information on how such a limit would be necessary to ensure safe 
management of aerosol cans. EPA requests comment on the appropriate 
scope of the definition of ``aerosol can'' and the types of materials 
that should fall under it.
    Proposed section 273.6 has specific exclusions from the coverage of 
the proposed rules in paragraph 273.6(b). First, the proposed rules at 
273.6(b)(1) and (2) exclude from the definition of ``aerosol can'' 
those cans that are not yet a waste under 40 CFR part 261, and those 
cans that are not hazardous waste, respectively. An aerosol can would 
only be subject to the proposed rule if it is considered a hazardous 
waste under 40 CFR part 261, and before a material can be determined to 
be a hazardous waste, it first must be determined to be a solid waste. 
Accordingly, any aerosol can that is not yet a solid waste (for 
example, because it is not yet discarded) would also not be subject to 
this section. Consistent with prior universal waste rules, the proposed 
rule at 273.6(c) also explains that a used aerosol can becomes a waste 
on the date it is discarded, and an unused aerosol can becomes a waste 
on the date the handler decides to discard it.
    A solid waste may be a hazardous waste either because it is listed 
as a hazardous waste in subpart D of 40 CFR part 261 or because it 
exhibits one or more of the characteristics of hazardous waste, as 
provided in subpart C of 40 CFR part 261. For example, as discussed in 
Section II above, aerosol cans are frequently hazardous due to the 
ignitability characteristic, and in some cases may also contain listed 
hazardous waste or materials exhibiting another hazardous 
characteristic. If a solid waste aerosol can is determined to be non-
hazardous then it is also not subject to the proposed universal waste 
regulations.
    In proposed 273.6(b)(3), EPA specifically excludes aerosol cans 
that have been emptied of their contents (both propellant and product). 
Once the contents of a universal waste aerosol can have been removed, 
the emptied can is considered a new point of generation and is subject 
to a hazardous waste determination per 40 CFR 262.11. An aerosol can 
that meets the definition of empty container in 40 CFR 261.7 is not 
subject to hazardous waste regulation, and may be recycled as scrap 
metal.
    The proposed rules also exclude at 273.4(b)(4), aerosol cans that 
show evidence of leakage, spillage, or damage that could cause leakage 
under reasonably foreseeable conditions. Through this exclusion, EPA 
intends that hazardous waste aerosol cans that are not intact continue 
to be subject to the full hazardous waste standards. The protectiveness 
of the proposed management standards described below relies in part on 
the fact that the aerosol cans to be managed in accordance with those 
rules are not leaking or otherwise damaged where contents or 
propellants could be dispersed out of the can, because such 
uncontrolled release could pose risk to human health and the 
environment, including an increased risk of fire. A leaking or damaged 
hazardous waste aerosol can that presents a risk of the contents or 
propellants being dispersed out of the can would need to be managed as 
RCRA hazardous waste under 40 CFR parts 260 through 272. Therefore, 
this provision includes all discarded, intact, non-empty hazardous 
waste aerosol cans.

B. Proposed Management Requirements for Aerosol Cans

1. Proposed Requirements for Small and Large Quantity Handlers
    Under this proposed rule, the existing universal waste requirements 
currently applicable to small quantity handlers of universal waste 
(SQHUWs) and large quantity handlers of universal waste (LQHUWs) would 
also be applicable to handlers of discarded aerosol cans. For both 
SQHUWs and LQHUWs, these requirements include waste management 
standards, labeling and marking, accumulation time limits, employee 
training, response to releases, requirements related to off-site 
shipments, and export requirements. LQHUWs are subject to additional 
notification and tracking requirements. For the labeling requirement, 
EPA is proposing that either each aerosol can, or a container in which 
the aerosol cans are contained, must be labeled or marked clearly with 
any of the following phrases: ``Universal Waste--Aerosol Can(s),'' 
``Waste Aerosol Can(s)'', or ``Used Aerosol Can(s)''.
    In addition, EPA is proposing that small and large quantity 
universal waste handlers must follow certain specific management 
standards while handling their aerosol cans. Under this proposal, all 
handlers must manage their universal waste aerosol cans in a manner 
designed to prevent releases to the environment. This includes 
accumulating universal waste aerosol cans in containers that are 
structurally sound and compatible with the contents of the can, and 
show no evidence of leaks, spills, or damage that could cause leaks 
under reasonably foreseeable conditions. Handlers may sort aerosol cans 
by type and consolidate intact aerosol cans in larger containers, 
remove actuators to reduce the risk of accidental release, and under 
certain conditions, may puncture and drain aerosol cans that are being 
recycled, as described below.
2. Proposed Requirements and Request for Comment on Puncturing and 
Draining at Small and Large Quantity Handlers
    As discussed in Section II above, under the current hazardous waste 
regulations, puncturing and draining an aerosol can, if performed as 
part of the recycling process (e.g., scrap metal recycling), is exempt 
from RCRA permitting requirements per 40 CFR 261.6(c). Storage of 
hazardous waste aerosol cans prior to recycling still requires a 
permit, unless it is exempt from permitting under another provision.

[[Page 11661]]

    However, EPA expects that puncturing and draining activities at 
universal waste handlers will be different from those currently 
performed by hazardous waste generators. Because handlers may receive 
universal waste from many other handlers, the volume of aerosol cans 
punctured and drained at a commercial universal waste handler is likely 
to be much greater than at a typical hazardous waste generator (which 
can only puncture and drain its own hazardous waste aerosol cans). In 
addition, under the universal waste regulations, handlers can store 
their universal waste up to a year, which could increase the number of 
cans punctured and drained at one time if the facility processes the 
cans in batches.
    Because of the likely differences between recycling of aerosol cans 
at hazardous waste generators versus recycling of aerosol cans at 
universal waste handlers, EPA is proposing specific management 
standards for the puncturing and draining of aerosol cans at universal 
waste handlers, similar to the requirements currently being implemented 
in states that have added aerosol cans to their list of universal 
waste. The aerosol can universal waste programs of California, 
Colorado, Utah and New Mexico, as well as Ohio's proposed aerosol can 
universal waste program, allow for puncturing and draining of aerosol 
cans by universal waste handlers, as long as specific management 
standards and waste characterization requirements are met.
    Similar to the current state requirements, EPA is proposing that 
puncturing and draining activities must be conducted by a commercial 
device specifically designed to safely puncture aerosol cans and 
effectively contain the residual contents and any emissions thereof. 
Puncturing and draining systems for aerosol cans are available from 
multiple commercial vendors. These devices generally consist of an 
enclosed puncturing device that punctures an aerosol can, allowing the 
contents to be drained into an attached container. In many cases, these 
containers are 55-gallon drums with a filter made of carbon or similar 
materials to capture any gases that may escape the 55-gallon drum 
during the puncturing and draining process.
    Manufacturers of aerosol can puncturing and draining devices 
include instructions for their use.\15\ These instructions include 
operating devices in a well ventilated area that is free from sparks 
and ignition sources in order to prevent fires, use of personal 
protective equipment such as safety goggles, and segregating 
incompatible products from being drained into the same container. 
Operators of puncturing and draining devices are also instructed to 
ensure that the container remains closed, does not become overfilled 
and that the container storing the contents of the drained aerosol cans 
is also kept in a well ventilated area free from sparks or ignition 
sources.
---------------------------------------------------------------------------

    \15\ EPA 2017. Compilation of Manufacturer's Guidance on Devices 
for Puncturing and Draining Aerosol Cans, December 2017.
---------------------------------------------------------------------------

    However, the Agency has previously investigated the performance of 
at least one aerosol can puncturing and draining device through EPA's 
Environmental Technology Verification (ETV) program. The ETV review 
demonstrated one type of drum-top puncturing and draining system was 
effective in processing at least 187 cans before breakthrough of 
volatile chemicals occurred, which was significantly less than the 600-
750 cans recommended by some manufacturers. The drum that contained the 
drained liquid from the aerosol cans was also never more than 25% full 
before breakthrough occurring. These findings were contrary to 
manufacturer recommendations of ensuring the container is not filled 
past 70% full in order to avoid breakthrough of volatile chemicals. In 
addition, the ETV program found that halogenated compounds (e.g., 
chlorinated solvents) were found to be incompatible with the seal and 
gasket materials.
    The performance of aerosol can puncturing and draining devices will 
vary by manufacturer and it remains the responsibility of the operator 
to ensure that the puncturing device is properly draining the contents 
of the aerosol cans into the drum, that breakthrough is not occurring, 
and that aerosol cans incompatible with the device are not punctured. 
For example, information is readily available regarding potential 
incompatibilities for aerosol can propellants with puncturing devices 
containing rubber seals or gaskets.\16\
---------------------------------------------------------------------------

    \16\ EPA 2017. Compilation of Manufacturer's Guidance on Devices 
for Puncturing and Draining Aerosol Cans, December 2017. See table 
beginning on page 54.
---------------------------------------------------------------------------

    Therefore, EPA is proposing that handlers must establish a written 
procedure detailing how to safely puncture and drain universal waste 
aerosol can (including operation and maintenance of the unit; 
segregation of incompatible wastes; and proper waste management 
practices to prevent fires or releases), and ensure employees operating 
the device are trained in the proper procedures. At minimum, EPA is 
proposing that the written procedure address the operation and 
maintenance of the unit including its proper assembly; segregation of 
incompatible wastes; and proper waste management practices, (e.g., 
ensuring that flammable wastes are stored away from heat or open 
flames).
    EPA is also proposing that the actual puncturing of the cans should 
be done in a manner designed to prevent fires and to prevent the 
release of the aerosol can contents to the environment. This includes, 
but is not limited to, locating the equipment on a solid, flat surface 
in a well-ventilated area.
    In addition, EPA is proposing that the contents from the cans 
should be immediately transferred from the waste aerosol can, or 
puncturing device if applicable, to a container or tank and that the 
contents are subject to a hazardous waste determination under 40 CFR 
262.11. The handler becomes that hazardous waste generator of the 
hazardous aerosol can contents and must manage those waste in 
accordance with applicable RCRA regulations.
    The proposed rule would also require that a written procedure be in 
place in the event of a spill or release and a spill clean-up kit 
should be provided. All spills or leaks of the contents of the aerosol 
cans should be cleaned up promptly.
    Finally, EPA notes that all puncturing, waste collection, and 
disposal, must be conducted in compliance with all applicable federal, 
state and local waste (solid and hazardous waste) and occupational 
safety and health laws and regulations.
    In addition, EPA is requesting comment on establishing further 
limitations on puncturing and draining of aerosol cans, similar to 
limitations that have been established by state waste management 
programs either through regulations or guidance. Many states have 
issued guidelines for puncturing and draining aerosol cans under their 
hazardous waste program. Some state guidelines recommend against the 
generator puncturing and draining certain types of aerosol cans due to 
the possible incompatibility with the puncturing and draining equipment 
or the contents of other cans being drained, or due to the hazardous 
nature of the contents. These aerosol cans include, but are not limited 
to, cans containing the following contents: Ethers including ethyl 
ether, chlorinated compounds, pesticides, herbicides, freons, foamers, 
corrosive cleaners and unknowns.\17\ EPA requests comment on

[[Page 11662]]

establishing additional regulatory requirements for can draining 
devices and limits on aerosol cans that may pose compatibility problems 
and that may be punctured and drained under the proposed rules.
---------------------------------------------------------------------------

    \17\ EPA 2017. Summary of State Programs Addressing Aerosol Cans 
Under RCRA Hazardous Waste Regulations or Under State Universal 
Waste Programs. December 2017.
---------------------------------------------------------------------------

    In addition, EPA is requesting comment on limiting puncturing and 
draining practices to handlers that are not commercial processors 
(i.e., a person that processes aerosol cans received from other 
entities in exchange for compensation). Such a limitation would be 
consistent with California's universal waste program. Under this 
option, the puncturing and draining management standards would only 
apply to handlers that are not commercial processors. Handlers that are 
commercial processors may still accept aerosol cans and process the 
cans by sorting and consolidating them, but would be unable to puncture 
and drain the cans. Under this option, commercial processors that would 
like to puncture and drain aerosol cans must first meet the 
requirements for a universal waste destination facility (including 
requiring a permit for storage of the hazardous waste aerosol cans 
prior to recycling). Handlers would still be allowed to puncture and 
drain the hazardous waste aerosol cans that they generate.
1. Proposed Requirements for Transporters
    This proposed rule would not change any of the existing 
requirements applicable to universal waste transporters. Under 40 CFR 
273.9, the definition of a universal waste transporter is ``a person 
engaged in the off-site transportation of universal waste by air, rail, 
highway, or water.'' Persons meeting the definition of universal waste 
transporter include those persons who transport universal waste from 
one universal waste handler to another, to a processor, to a 
destination facility, or to a foreign destination. These persons are 
subject to the universal waste transporter requirements of part 273, 
subpart D. EPA notes that this proposed rule also would not affect the 
applicability of shipping requirements under the hazardous waste 
materials regulations of the Department of Transportation. Transporters 
continue to be subject to these requirements, if applicable (e.g., 49 
CFR 173.306 for shipping of limited quantities of aerosol cans, or 49 
CFR 173.115(l) which sets limits in the definition of ``aerosol'' for 
the purpose of shipping flammable gas).
2. Proposed Requirements for Destination Facilities
    This proposed rule would not change any of the existing 
requirements applicable to universal waste destination facilities 
(subpart E of part 273). Under 40 CFR 273.9, the definition of a 
destination facility is ``a facility that treats, disposes of, or 
recycles a particular category of universal waste'' (except certain 
activities specified in the regulations at Sec.  273.13(a) and (c) and 
Sec.  273.33(a) and (c)).
3. Effect of This Proposed Rule on Household Wastes and Very Small 
Quantity Generators
    Adding hazardous waste aerosol cans to the federal definition of 
universal wastes would not impose any requirements on households and 
very small quantity generators for managing these cans. Household waste 
continues to be exempt from RCRA subtitle C regulations under 40 CFR 
261.4(b)(1). However, under the universal waste rule, households and 
VSQGs may choose to manage their hazardous waste aerosol cans in 
accordance with either the VSQG regulations under 40 CFR 261.5 or as a 
universal waste under part 273 (40 CFR 273.8(a)(2)). It should be 
noted, however, that 40 CFR 273.8(b) would continue to apply. Under 
this provision, if household or VSQG wastes are mixed with universal 
waste subject to the requirements of 40 CFR part 273 (i.e., universal 
waste that is not generated by households or VSQGs), the commingled 
waste must be handled as universal waste in accordance with part 273. 
Under this proposed rule, handlers of universal waste who collect 5,000 
kilograms or more of this commingled aerosol can waste would be 
considered large quantity handlers of universal waste and must meet the 
requirements of that category of universal waste handler. Hazardous 
waste aerosol cans that are managed as a universal waste under 40 CFR 
part 273 would not be required to be included in a facility's 
determination of hazardous waste generator status (40 CFR 261.5(c)(6)). 
Therefore, a generator that manages such cans under the universal waste 
rule and does not generate any other hazardous waste would not be 
subject to other subtitle C hazardous waste management regulations, 
such as the hazardous waste generator regulations in part 262. A large 
or small universal waste handler that generates more than 100 kilograms 
but less than 1,000 kilograms of hazardous waste in a calendar month in 
addition to the universal waste it generates would be regulated as a 
small quantity generator of hazardous waste and would be required to 
manage all hazardous waste not included within the scope of that 
universal waste rule in accordance with all applicable subtitle C 
hazardous waste management standards. Similarly, a larger or small 
universal waste handler that generates 1000 kilograms or more of 
hazardous waste in a calendar month in addition to the universal waste 
it generates would be regulated as a large quantity generator of 
hazardous waste.
4. Applicability of Land Disposal Restriction Requirements
    This proposed rule would not change the applicability of land 
disposal restriction (LDR) requirements to universal waste. Under the 
existing regulations (40 CFR 268.1(f)), universal waste handlers and 
transporters are exempt from the land disposal restriction (LDR) 
requirements regarding testing, tracking, and recordkeeping in 40 CFR 
268.7 and the storage prohibition in 40 CFR 268.50. EPA proposes to 
amend 40 CFR 268.1(f) to add aerosol can universal waste for 
consistency. This proposed rule would also not change the regulatory 
status of destination facilities; they remain subject to the full LDR 
requirements.

V. Technical Corrections

    As part of this rulemaking, EPA is proposing four technical 
corrections to the universal waste standards for mercury-containing 
equipment in 40 CFR 273.13(c)(2)(iii) and (iv) and 273.33(c)(2)(iii) 
and (iv). Each of these paragraphs contains a reference to 40 CFR 
262.34, which was removed and reserved as part of the November 28, 
2016, Hazardous Waste Generator Improvements Rule (81 FR 85732). EPA 
neglected to update these references as part of its corresponding 
changes in that rule and is correcting that mistake here. In all four 
places, EPA is proposing that the regulation refer to 40 CFR 262.16 or 
262.17, as applicable.

VI. State Authority

A. Applicability of Proposed Rule in Authorized States

    Under section 3006 of RCRA, EPA may authorize qualified states to 
administer and enforce the RCRA hazardous waste program within the 
state. Following authorization, EPA retains enforcement authority under 
sections 3008, 3013, and 7003 of RCRA, although authorized states have 
primary enforcement responsibility. The standards and requirements for 
state authorization are found at 40 CFR part 271. Prior to enactment of 
the Hazardous and Solid Waste Amendments of 1984 (HSWA), a State with 
final RCRA authorization administered its hazardous waste program 
entirely in lieu of EPA administering the federal program in

[[Page 11663]]

that state. The federal requirements no longer applied in the 
authorized state, and EPA could not issue permits for any facilities in 
that state, since only the state was authorized to issue RCRA permits. 
When EPA promulgated new, more stringent federal requirements for these 
pre-HSWA regulations, the state was obligated to enact equivalent 
authorities within specified time frames. However, the new federal 
requirements did not take effect in an authorized state, until the 
state adopted the federal requirements as state law. In contrast, under 
RCRA section 3006(g) (42 U.S.C. 6926(g)), which was added by HSWA, new 
requirements and prohibitions imposed under HSWA authority take effect 
in authorized states at the same time that they take effect in 
unauthorized states. EPA is directed by the statute to implement these 
requirements and prohibitions in authorized states, including the 
issuance of permits, until the state is granted authorization to do so. 
While states must still adopt HSWA related provisions as state law to 
retain final authorization, EPA implements the HSWA provisions in 
authorized states until the states do so.
    Authorized states are required to modify their programs only when 
EPA enacts federal requirements that are more stringent or broader in 
scope than existing federal requirements. RCRA section 3009 allows the 
states to impose standards more stringent than those in the federal 
program (see also 40 CFR 271.1). Therefore, authorized states may, but 
are not required to, adopt federal regulations, both HSWA and non-HSWA, 
that are considered less stringent than previous federal regulations.

B. Effect on State Authorization

    This proposed rule would be less stringent than the current federal 
program. Because states are not required to adopt less stringent 
regulations, they would not have to adopt the universal waste 
regulations for aerosol cans, although EPA encourages them to do so. 
Some states have already added aerosol cans to the list of universal 
wastes in that state, and others may do so in the future. If a state's 
standards for aerosol cans are less stringent than those in the final 
rule, the state would have to amend its regulations to make them at 
least equivalent to the federal standards and pursue authorization.

VII. Statutory and Executive Order Reviews

    Additional information about these statutes and Executive Orders 
can be found at http://www.epa.gov/laws-regulations/laws-and-executive-orders.

A. Executive Order 12866: Regulatory Planning and Review and Executive 
Order 13563: Improving Regulation and Regulatory Review

    This action is not a significant regulatory action because it does 
not have a significant economic impact nor does it raise novel legal or 
policy issues. The Office of Management and Budget (OMB) waived review.

B. Executive Order 13771: Reducing Regulations and Controlling 
Regulatory Costs

    This action is expected to be an Executive Order 13771 deregulatory 
action. Details on the estimated cost savings of this proposed rule can 
be found in EPA's analysis of the potential costs and benefits 
associated with this action.

C. Paperwork Reduction Act (PRA)

    The information collection activities in this proposed rule will be 
submitted for approval to the Office of Management and Budget (OMB) 
under the PRA. The Information Collection Request (ICR) documents that 
the EPA prepared have been assigned EPA ICR number 1597.12 and ICR 
number 2513.03. You can find copies of the ICRs in the docket for this 
rule, and they are briefly summarized here.
    Because aerosol cans managed under the proposed rule are not 
counted toward a facility's RCRA generator status, respondents will see 
a reduction in burden. This is because the aerosol cans would not be 
subject to recordkeeping and reporting requirements as hazardous waste, 
and the respondent may no longer be subject to hazardous waste 
generator recordkeeping and reporting requirements, depending on the 
quantity of non-aerosol can hazardous waste they generate. The existing 
universal waste requirements currently applicable to small quantity 
handlers of universal waste (SQHUWs) and large quantity handlers of 
universal waste (LQHUWs) would also be applicable to handlers of 
aerosol can waste. For both SQHUWs and LQHUWs, these requirements 
include labeling and marking, employee training, response to releases, 
and export requirements. LQHUWs are also subject to additional 
notification and tracking requirements.
    Respondents/affected entities: The information collection 
requirements of the proposed rule affect facilities that handle aerosol 
can waste and vary based on facility generator and handler status.
    Respondent's obligation to respond: The recordkeeping and 
notification requirements are required in order to obtain a benefit 
under 40 CFR part 273.
    Estimated number of respondents: 639.
    Frequency of response: One-time notification for LQHUWs, annual 
training requirements for all universal waste handlers; per-shipment 
costs for labeling (all handlers) and tracking (LQHUWs).
    Total estimated burden: EPA estimates the annual burden to 
respondents to be a net reduction in burden of approximately 39,113 
hours. Burden is defined at 5 CFR 1320.3(b).
    Total estimated cost: The total estimated annual cost of this rule 
is a cost savings of approximately $2.0 million. This cost savings is 
composed of approximately $1.94 million in annualized avoided labor 
costs and $0.06 million in avoided capital or operation and maintenance 
costs.
    An agency may not conduct or sponsor, and a person is not required 
to respond to, a collection of information unless it displays a 
currently valid OMB control number. The OMB control numbers for the 
EPA's regulations in 40 CFR are listed in 40 CFR part 9. The OMB 
Control Number for this proposed rule is 2050-0145. Submit your 
comments on the Agency's need for this information, the accuracy of the 
provided burden estimates and any suggested methods for minimizing 
respondent burden to the EPA using the docket identified at the 
beginning of this rule. You may also send your ICR-related comments to 
OMB's Office of Information and Regulatory Affairs via email to 
[email protected], Attention: Desk Officer for the EPA. Since 
OMB is required to make a decision concerning the ICR between 30 and 60 
days after receipt, OMB must receive comments no later than April 16, 
2018. The EPA will respond to any ICR-related comments in the final 
rule.

D. Regulatory Flexibility Act (RFA)

    I certify that this proposed action will not have a significant 
economic impact on a substantial number of small entities under the 
RFA. In making this determination, the impact of concern is any 
significant adverse economic impact on small entities. An agency may 
certify that a rule will not have a significant economic impact on a 
substantial number of small entities if the rule relieves regulatory 
burden, has no net burden or otherwise has a positive economic effect 
on the small entities subject to the rule. As documented in the 
Regulatory Impact Analysis found in the docket for this

[[Page 11664]]

proposal, EPA does not expect the rule to result in an adverse impact 
to a significant number of small entities, since the rule is expected 
to result in net cost savings for all entities affected by the rule. We 
have therefore concluded that this proposed action will either relieve 
regulatory burden or have no net regulatory burden for all directly 
regulated small entities.

E. Unfunded Mandates Reform Act (UMRA)

    As documented in the Regulatory Impact Analysis found in the docket 
for this proposal, this proposed action does not contain an unfunded 
mandate of $100 million or more as described in UMRA, 2 U.S.C. 1531-
1538, and does not significantly or uniquely affect small governments.

F. Executive Order 13132: Federalism

    As documented in the Regulatory Impact Analysis found in the docket 
for this proposal, this proposed action does not have federalism 
implications. It will not have substantial direct effects on the 
states, on the relationship between the national government and the 
states, or on the distribution of power and responsibilities among the 
various levels of government.

G. Executive Order 13175: Consultation and Coordination With Indian 
Tribal Governments

    This proposed action does not have tribal implications as specified 
in Executive Order 13175. Because the proposed rule is expected to 
result in net cost savings, EPA does not expect that it would result in 
any adverse impacts on tribal entities. Thus, Executive Order 13175 
does not apply to this proposed action.

H. Executive Order 13045: Protection of Children From Environmental 
Health Risks and Safety Risks

    This proposed action is not subject to Executive Order 13045 
because it is not economically significant as defined in Executive 
Order 12866, and because the EPA does not believe the environmental 
health or safety risks addressed by this proposed action present a 
disproportionate risk to children. This proposed action's health and 
risk assessments are contained in the Regulatory Impact Analysis of 
Proposed Rule to Add Aerosol Cans to the Universal Waste Rule, found in 
the docket for this proposal.

I. Executive Order 13211: Actions Concerning Regulations That 
Significantly Affect Energy Supply, Distribution or Use

    This proposed action is not subject to Executive Order 13211, 
because it is not a significant regulatory action under Executive Order 
12866.

J. National Technology Transfer and Advancement Act (NTTAA)

    This rulemaking does not involve technical standards.

K. Executive Order 12898: Federal Actions To Address Environmental 
Justice in Minority Populations and Low-Income Populations

    The EPA believes that this proposed action does not have 
disproportionately high and adverse human health or environmental 
effects on minority populations, low-income populations and/or 
indigenous peoples, as specified in Executive Order 12898 (59 FR 7629, 
February 16, 1994).
    The documentation for this decision is contained in Regulatory 
Impact Analysis of Proposed Rule to Add Aerosol Cans to the Universal 
Waste Rule, found in the docket for this proposal.

List of Subjects

40 CFR Part 260

    Environmental protection, Administrative practice and procedure, 
Hazardous waste.

40 CFR Part 261

    Environmental protection, Hazardous waste, Recycling.

40 CFR Part 264

    Environmental protection, Hazardous waste, Packaging and 
containers.

40 CFR Part 265

    Environmental protection, Hazardous waste, Packaging and 
containers.

40 CFR Part 268

    Environmental protection, Hazardous waste, Reporting and 
recordkeeping requirements.

40 CFR Part 270

    Environmental protection, Hazardous materials transportation, 
Reporting and recordkeeping requirements.

40 CFR Part 273

    Environmental protection, Hazardous materials transportation, 
Hazardous waste.

    Dated: March 5, 2018.
E. Scott Pruitt,
Administrator.
    For the reasons set out in the preamble, title 40, chapter I of the 
Code of Federal Regulations, parts 260, 261, 264, 265, 268, 270, and 
273 are proposed to be amended as follows:

PART 260--HAZARDOUS WASTE MANAGEMENT SYSTEM: GENERAL

0
1. The authority citation for part 260 continues to read as follows:

    Authority:  42 U.S.C. 6905, 6912(a), 6921- 6927, 6930, 6934, 
6935, 6937, 6938, 6939, and 6974.

Subpart B--Definitions

0
2. Section 260.10 is amended by:
0
a. Adding the definition of ``Aerosol can'' in alphabetical order;
0
b. Amending the definition ``Universal waste'' by:
0
i. Republishing the introductory text;
0
ii. Removing the word ``and'' at the end of paragraph (3);
0
 iii. Revising paragraph (4); and
0
 iv. Adding paragraph (5); and
0
c. Republishing the introductory text of paragraph (2) and revising 
paragraph (2)(i) of the definition of ``Universal waste handler''.
    The revisions and additions read as follows:


Sec.  260.10  Definitions.

* * * * *
    Aerosol can means an intact container in which gas under pressure 
is used to aerate and dispense any material through a valve in the form 
of a spray or foam.
* * * * *
    Universal waste means any of the following hazardous wastes that 
are managed under the universal waste requirements of part 273 of this 
chapter:
* * * * *
    (4) Lamps as described in Sec.  273.5 of this chapter; and
    (5) Aerosol cans as described in Sec.  273.6 of this chapter.
    Universal waste handler:
* * * * *
    (2) Does not mean:
    (i) A person who treats (except under the provisions of 40 CFR 
273.13(a) or (c), or 40 CFR 273.33(a) or (c)), disposes of, or recycles 
(except under the provisions of 40 CFR 273.13(e) or 40 CFR 273.33(e)) 
universal waste; or
* * * * *

PART 261--IDENTIFICATION AND LISTING OF HAZARDOUS WASTE

0
3. The authority citation for part 261 continues to read as follows:


[[Page 11665]]


    Authority:  42 U.S.C. 6905, 6912(a), 6921, 6922, 6924(y), and 
6938.

Subpart A--General

0
4. Section 261.9 is amended by:
0
a. Removing the word ``and'' at the end of paragraph (c);
0
b. Revising paragraph (d); and
0
c. Adding paragraph (e).
    The revisions and additions read as follows:


Sec.  261.9  Requirements for universal waste.

* * * * *
    (d) Lamps as described in Sec.  273.5 of this chapter; and
    (e) Aerosol cans as described in Sec.  273.6 of this chapter.

PART 264--STANDARDS FOR OWNERS AND OPERATORS OF HAZARDOUS WASTE 
TREATMENT, STORAGE AND DISPOSAL FACILITIES

0
5. The authority citation for part 264 continues to read as follows:

    Authority: 42 U.S.C. 6905, 6912(a), 6924, and 6925.

Subpart A--General

0
6. Section 264.1 is amended by:
0
a. Removing the word ``and'' at the end of paragraph (g)(11)(iii);
0
b. Revising paragraph (g)(11)(iv); and
0
c. Adding paragraph (g)(11)(v).
    The revision and addition read as follows:


Sec.  264.1   Purpose, scope and applicability.

* * * * *
    (g) * * *
    (11) * * *
    (iv) Lamps as described in Sec.  273.5 of this chapter; and
    (v) Aerosol cans as described in Sec.  273.6 of this chapter.
* * * * *

PART 265--INTERIM STATUS STANDARDS FOR OWNERS AND OPERATORS OF 
HAZARDOUS WASTE TREATMENT, STORAGE, AND DISPOSAL FACILITIES

0
7. The authority citation for part 265 continues to read as follows:

    Authority: 42 U.S.C. 6905, 6906, 6912, 6922, 6923, 6924, 6925, 
6935, 6936, and 6937.

Subpart A--General

0
8. Section 265.1 is amended by:
0
a. Removing the word ``and'' at the end of paragraph (c)(14)(iii);
0
b. Revising paragraph (c)(14)(iv); and
0
c. Adding paragraph (c)(14)(v).
    The revision and addition read as follows:


Sec.  265.1   Purpose, scope, and applicability.

* * * * *
    (c) * * *
    (14) * * *
    (iv) Lamps as described in Sec.  273.5 of this chapter; and
    (v) Aerosol cans as described in Sec.  273.6 of this chapter.
* * * * *

PART 268--LAND DISPOSAL RESTRICTIONS

0
9. The authority citation for part 268 continues to read as follows:

    Authority:  42 U.S.C. 6905, 6912(a), 6921, and 6924.

Subpart A--General

0
10. Section 268.1 is amended by:
0
a. Removing the word ``and'' at the end of paragraph (f)(3);
0
b. Revising paragraph (f)(4); and
0
c. Adding paragraph (f)(5)
    The revision and addition read as follows:


Sec.  268.1  Purpose, scope, and applicability.

* * * * *
    (f) * * *
    (4) Lamps as described in Sec.  273.5 of this chapter; and
    (5) Aerosol cans as described in Sec.  273.6 of this chapter.

PART 270--EPA ADMINISTERED PERMIT PROGRAMS: THE HAZARDOUS WASTE 
PERMIT PROGRAM

0
11. The authority citation for part 270 continues to read as follows:

    Authority: 42 U.S.C. 6905, 6912, 6924, 6925, 6927, 6939, and 
6974.

Subpart A--General Information

0
12. Section 270.1 is amended by:
0
a. Removing the word ``and'' at the end of paragraph (c)(2)(viii)(C);
0
b. Revising paragraph (c)(2)(viii)(D); and
0
c. Adding paragraph (c)(2)(viii)(E).
    The revision and addition read as follows:


Sec.  270.1   Purpose and scope of these regulations.

* * * * *
    (c) * * *
    (2) * * *
    (viii) * * *
    (D) Lamps as described in Sec.  273.5 of this chapter; and
    (E) Aerosol cans as described in Sec.  273.6 of this chapter.
* * * * *

PART 273--STANDARDS FOR UNIVERSAL WASTE MANAGEMENT

0
13. The authority for part 273 continues to read as follows:

    Authority: 42 U.S.C. 6922, 6923, 6924, 6925, 6930, and 6937.

Subpart A--General

0
14. Section 273.1 is amended by:
0
a. Removing the word ``and'' at the end of paragraph (a)(3);
0
b. Revising paragraph (a)(4); and
0
c. Adding paragraph (a)(5).
    The revision and addition read as follows:


Sec.  273.1   Scope.

    (a) * * *
    (4) Lamps as described in Sec.  273.5 of this chapter; and
    (5) Aerosol cans as described in Sec.  273.6 of this chapter.
* * * * *
0
15. Section 273.6 is added to read as follows:


Sec.  273.6   Applicability--Aerosol cans.

    (a) Aerosol cans covered under this part 273. The requirements of 
this part apply to persons managing aerosol cans, as described in Sec.  
273.9, except those listed in paragraph (b) of this section.
    (b) Aerosol cans not covered under this part 273. The requirements 
of this part do not apply to persons managing the following aerosol 
cans:
    (1) Aerosol cans that are not yet a waste under part 261 of this 
chapter. Paragraph (c) of this section describes when an aerosol cans 
becomes a waste;
    (2) Aerosol cans that are not hazardous waste. An aerosol can is a 
hazardous waste if the aerosol can exhibits one or more of the 
characteristics identified in part 261, subpart C of this chapter or 
the aerosol can contains a substance that is listed in part 261, 
subpart D of this chapter;
    (3) Aerosol cans that meet the standard for empty containers under 
part 261.7 of this chapter, and
    (4) Aerosol cans that show evidence of leakage, spillage, or damage 
that could cause leakage under reasonably foreseeable conditions.
    (c) Generation of waste aerosol cans.
    (1) A used aerosol can become a waste on the date it is discarded.
    (2) An unused aerosol can become a waste on the date the handler 
decides to discard it.
0
16. Section 273.9 is amended by:
0
a. Adding the definition of ``Aerosol can'' in alphabetical order;
0
b. Revising the definitions of ``Large quantity handler of universal 
waste'' and ``Small quantity handler of universal waste'';

[[Page 11666]]

0
c. In the definition ``Universal waste'':
0
 i. Republishing the introductory paragraph;
0
 ii. Removing the word ``and'' at the end of paragraph (3);
0
 iii. Revising paragraph (4), and adding paragraph (5); and
0
d. Republishing the introductory text of paragraph (b) and revising 
paragraph (b)(1) of the definition of ``Universal waste handler''.
    The revision and addition read as follows to read as follows:


Sec.  273.9   Definitions.

    Aerosol can means an intact container in which gas under pressure 
is used to aerate and dispense any material through a valve in the form 
of a spray or foam.
* * * * *
    Large Quantity Handler of Universal Waste means a universal waste 
handler (as defined in this section) who accumulates 5,000 kilograms or 
more total of universal waste (batteries, pesticides, mercury-
containing equipment, lamps, or aerosol cans, calculated collectively) 
at any time. This designation as a large quantity handler of universal 
waste is retained through the end of the calendar year in which the 
5,000-kilogram limit is met or exceeded.
* * * * *
    Small Quantity Handler of Universal Waste means a universal waste 
handler (as defined in this section) who does not accumulate 5,000 
kilograms or more of universal waste (batteries, pesticides, mercury-
containing equipment, lamps, or aerosol cans, calculated collectively) 
at any time.
* * * * *
    Universal Waste means any of the following hazardous wastes that 
are subject to the universal waste requirements of this part 273:
* * * * *
    (4) Lamps as described in Sec.  273.5; and
    (5) Aerosol cans as described in Sec.  273.6.
    Universal Waste Handler:
* * * * *
    (b) Does not mean:
    (1) A person who treats (except under the provisions of 40 CFR 
273.13(a) or (c), or 40 CFR 273.33(a) or (c)), disposes of, or recycles 
(except under the provisions of 40 CFR 273.13(e) or 40 CFR 273.33(e)) 
universal waste; or
* * * * *

Subpart B--Standards for Small Quantity Handlers of Universal Waste

0
17. Section 273.13 is amended by revising paragraphs (c)(2)(iii) and 
(iv) and adding paragraph (e) to read as follows:


Sec.  273.13  Waste management.

* * * * *
    (c) * * *
    (2) * * *
    (iii) Ensures that a mercury clean-up system is readily available 
to immediately transfer any mercury resulting from spills or leaks from 
broken ampules from that containment device to a container that meets 
the requirements of 40 CFR 262.16 or 262.17, as applicable.
    (iv) Immediately transfers any mercury resulting from spills or 
leaks from broken ampules from the containment device to a container 
that meets the requirements of 40 CFR 262.16 or 262.17, as applicable.
* * * * *
    (e) Aerosol cans. A small quantity handler of universal waste must 
manage universal waste aerosol cans in a way that prevents releases of 
any universal waste or component of a universal waste to the 
environment, as follows:
    (1) Universal waste aerosol cans must be accumulated in a container 
that is structurally sound, compatible with the contents of the aerosol 
cans, and lacks evidence of leakage, spillage, or damage that could 
cause leakage under reasonably foreseeable conditions;
    (2) A small quantity handler of universal waste may conduct the 
following activities as long as each individual aerosol can is not 
breached and remains intact:
    (i) Sorting aerosol cans by type;
    (ii) Mixing intact cans in one container; and
    (iii) Removing actuators to reduce the risk of accidental release.
    (3) A small quantity handler of universal waste who punctures and 
drains their aerosol cans must recycle the empty punctured aerosol cans 
and meet the following requirements while puncturing and draining 
hazardous waste aerosol cans:
    (i) Conduct puncturing and draining activities using a device 
specifically designed to safely puncture aerosol cans and effectively 
contain the residual contents and any emissions thereof;
    (ii) Establish a written procedure detailing how to safely puncture 
and drain universal waste aerosol can (including proper assembly, 
operation and maintenance of the unit; segregation of incompatible 
wastes; and proper waste management practices to prevent fires or 
releases), maintain a copy of the manufacturer's specification and 
instruction onsite, and ensure employees operating the device are 
trained in the proper procedures;
    (iii) Ensure that puncturing of the can is in a manner designed to 
prevent fires and to prevent the release of any component of universal 
waste to the environment. This includes, but is not limited to, 
locating the equipment on a solid, flat surface in a well ventilated 
area;
    (iv) Immediately transfer the contents from the waste aerosol can, 
or puncturing device if applicable, to a container or tank that meets 
the applicable requirements of Sec.  262.14, 262.15, 262.16, or 262.17;
    (v) Conduct a hazardous waste determination on the emptied aerosol 
can and its contents per 40 CFR 262.11. Any hazardous waste generated 
as a result of puncturing and draining the aerosol can is subject to 
all applicable requirements of 40 CFR parts 260 through 272. The 
handler is considered the generator of the hazardous waste and is 
subject to 40 CFR part 262;
    (vi) If the contents are determined not to be hazardous, the 
handler may manage the waste in any way that is in compliance with 
applicable federal, state or local solid waste regulations; and
    (vii) A written procedure must be in place in the event of a spill 
or release and a spill clean-up kit must be provided. All spills or 
leaks of the contents of the aerosol cans must be cleaned up promptly.
0
18. Section 273.14 is amended by adding paragraph (f) to read as 
follows:


Sec.  273.14  Labeling/marking.

* * * * *
    (f) Universal waste aerosol cans (i.e., each aerosol can), or a 
container in which the aerosol cans are contained, must be labeled or 
marked clearly with any of the following phrases: ``Universal Waste--
Aerosol Can(s),'' ``Waste Aerosol Can(s),'' or ``Used Aerosol Can(s)''.

Subpart C--Standards for Large Quantity Handlers of Universal Waste

0
19. Section 273.32 is amended by revising paragraph (b)(4) to read as 
follows:


Sec.  273.32  Notification.

* * * * *
    (b) * * *
    (4) A list of all the types of universal waste managed by the 
handler (e.g., batteries, pesticides, mercury-containing equipment, 
lamps, and aerosol cans); and
    * * *
* * * * *
0
20. Section 273.33 is amended by revising paragraphs (c)(2)(iii) and 
(iv)

[[Page 11667]]

and adding paragraph (e) to read as follows:


Sec.  273.33   Waste management.

* * * * *
    (c) * * *
    (2) * * *
    (iii) Ensures that a mercury clean-up system is readily available 
to immediately transfer any mercury resulting from spills or leaks of 
broken ampules from that containment device to a container that meets 
the requirements of 40 CFR 262.16 or 262.17, as applicable.
    (iv) Immediately transfers any mercury resulting from spills or 
leaks from broken ampules from the containment device to a container 
that meets the requirements of 40 CFR 262.16 or 262.17, as applicable.
* * * * *
    (e) Aerosol cans. A large quantity handler of universal waste must 
manage universal waste aerosol cans in a way that prevents releases of 
any universal waste or component of a universal waste to the 
environment, as follows:
    (1) Universal waste aerosol cans must be accumulated in a container 
that is structurally sound, compatible with the contents of the aerosol 
cans, and lacks evidence of leakage, spillage, or damage that could 
cause leakage under reasonably foreseeable conditions;
    (2) A large quantity handler of universal waste may conduct the 
following activities as long as each individual aerosol can is not 
breached and remains intact:
    (i) Sorting aerosol cans by type; and
    (ii) Mixing intact cans in one container; and (iii) Removing 
actuators to reduce the risk of accidental release;
    (3) A large quantity handler of universal waste who punctures and 
drains their aerosol cans must recycle the empty punctured aerosol cans 
and meet the following requirements while puncturing and draining 
hazardous waste aerosol cans:
    (i) Conduct puncturing and draining activities using a device 
specifically designed to safely puncture aerosol cans and effectively 
contain the residual contents and any emissions thereof;
    (ii) Establish a written procedure detailing how to safely puncture 
and drain universal waste aerosol can (including proper assembly, 
operation and maintenance of the unit; segregation of incompatible 
wastes; and proper waste management practices to prevent fires or 
releases), maintain a copy of the manufacturer's specification and 
instruction onsite, and ensure employees operating the device are 
trained in the proper procedures;
    (iii) Ensure that puncturing of the can is in a manner designed to 
prevent fires and to prevent the release of any component of universal 
waste to the environment. This includes, but is not limited to, 
locating the equipment on a solid, flat surface in a well ventilated 
area;
    (iv) Immediately transfer the contents from the waste aerosol can, 
or puncturing device if applicable, to a container or tank that meets 
the applicable requirements of Sec.  262.14, 15, 16, or 17;
    (v) Conduct a hazardous waste determination on the emptied aerosol 
can and its contents per 40 CFR 262.11. Any hazardous waste generated 
as a result of puncturing and draining the aerosol can is subject to 
all applicable requirements of 40 CFR parts 260 through 272. The 
handler is considered the generator of the hazardous waste and is 
subject to 40 CFR part 262;
    (vi) If the contents are determined not to be hazardous, the 
handler may manage the waste in any way that is in compliance with 
applicable federal, state or local solid waste regulations; and
    (vii) A written procedure must be in place in the event of a spill 
or release and a spill clean-up kit must be provided. All spills or 
leaks of the contents of the aerosol cans must be cleaned up promptly.
0
21. Section 273.34 is amended by adding paragraph (f) to read as 
follows:


Sec.  273.34  Labeling/marking.

* * * * *
    (f) Universal waste aerosol cans (i.e., each aerosol can), or a 
container in which the aerosol cans are contained, must be labeled or 
marked clearly with any of the following phrases: ``Universal Waste--
Aerosol Can(s)'', ``Waste Aerosol Can(s)'', or ``Used Aerosol Can(s)''.

[FR Doc. 2018-05282 Filed 3-15-18; 8:45 am]
 BILLING CODE 6560-50-P