EPA has issued a proposed rule that would add discarded aerosol cans to the list of hazardous wastes that can be managed and transported under the Resource Conservation and Recovery Act’s (“RCRA’s”) streamlined universal waste regulations.  (83 Fed. Reg. 11654 (March 16, 2018)). 

Currently, most non-empty, waste aerosol cans are regulated as hazardous waste either because they exhibit a hazardous characteristic (typically ignitability) or because the can contains a RCRA-listed chemical.  As a result, these aerosol cans are subject to EPA’s extensive cradle-to-grave regulatory requirements, including limits on accumulation time and volume, manifest obligations, and restrictions on ultimate disposal.  EPA is proposing to simplify those requirements for aerosol cans, similar to how batteries, lamps, certain pesticides, and mercury-containing equipment are regulated under RCRA.  (See 40 CFR Part 273 ).  Four states currently regulate aerosol cans as universal waste – California, Colorado, Utah and New Mexico.  Ohio and Minnesota also have proposed adding aerosol cans to their universal waste regulations.  As a universal waste under the federal program, aerosol cans would be subject to more limited labeling requirements, could be stored onsite in greater quantities and for a one-year period (or longer in certain circumstances), and would not be counted when determining an entity’s hazardous waste generator status.  Discarded aerosol cans also could be consolidated at central locations.  While waste aerosol cans could be transported without a hazardous waste manifest, Department of Transportation, Occupational Health and Safety Administration and local fire code requirements would still apply.  83 Fed. Reg. at 11658-59.

EPA expects that this rulemaking will ease the regulatory burden for generators of aerosol cans, in particular retailers since aerosol cans often comprise a large percentage of that sector’s hazardous waste stream.  Indeed, the proposed rule was one of the action items identified in EPA’s 2016 Strategy for Addressing the Retail Sector under RCRA’s Regulatory Framework.  

While the proposed shift from hazardous waste to universal waste would reduce regulatory requirements applicable to waste aerosol cans, there are limits on that regulatory relief.  For example, EPA is proposing to define an aerosol can as “an intact container in which gas under pressure is used to aerate and dispense any material through a valve in the form of a spray or foam.”  EPA explains that this definition is the same as that used in California, Colorado, New Mexico and Utah’s universal waste programs (with the exception of a size limit in Utah).  According to the Agency, compressed gas containers and propane cylinders, which EPA considers to present a greater risk than aerosol cans would not be included in the regulatory definition.  However, it is an open question as to whether the regulatory definition would exclude cans that aerate and dispense product without using pressurized gas.  There is also uncertainty about when leaking aerosol cans would be regulated as universal waste since any evidence of “damage that could cause leakage under reasonably foreseeable conditions” would exclude an aerosol can from the universal waste regulations.  EPA is requesting comment on the appropriate scope of the regulatory definition and the types of materials that should fall under it.  83 Fed. Reg. at 11659-60.

EPA is also proposing new requirements for universal waste handlers that puncture and drain aerosol cans.  This is a departure from the current hazardous waste rule, which exempts puncturing and draining activities from regulation if the activities are performed as part of a recycling process (e.g., scrap metal recycling).  In EPA’s view, the additional requirements are warranted because universal waste handlers are likely to manage greater quantities of cans than a typical hazardous waste generator who can only puncture and drain its own discarded aerosol cans.  Among the requirements being proposed by EPA is the requirement that the puncturing and draining be done by a commercial device “specifically designed to safely puncture aerosol cans and effectively contain the residual contents and any emissions thereof.”  The handler also would have to develop a written procedure for safe operation of the equipment and to address spills or releases.  In addition, the handler would become the hazardous waste generator of the hazardous material drained from the aerosol cans and such hazardous waste would have to be managed in accordance with RCRA Subtitle C requirements.  EPA is requesting comment on these requirements, as well as on whether further limitations should be imposed. 83 Fed. Reg. at 11660-62.

EPA is accepting comments on the proposed rule until May 15, 2018. 


For more information, please contact Jessica Mitchell Wicha:

[email protected]




Jessica Wicha is a counsel in the Firm’s North American Environmental Practice Group. Her practice covers the spectrum of environmental legal matters, including regulatory compliance counseling, enforcement defense, and environmental aspects of complex business transactions. She strives to provide practical solutions to her client's environmental legal challenges, including day-to-day compliance issues, remediation matters, emergency spills and releases, and regulatory enforcement. Ms. Wicha also has extensive experience advising on environmental transactional matters across a wide range of industry sectors and global jurisdictions. This work includes scoping and coordinating environmental due diligence, managing environmental consultants, advising clients on environmental liability and risk allocation issues and tools, drafting and negotiating environmental contractual language, and coordinating permit transfers.