[Federal Register Volume 84, Number 236 (Monday, December 9, 2019)]
[Rules and Regulations]
[Pages 67202-67220]
[FR Doc No: 2019-25674]

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ENVIRONMENTAL PROTECTION AGENCY

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

[EPA-HQ-OLEM-2017-0463; FRL-10002-49-OLEM]
RIN 2050-AG92

Increasing Recycling: Adding Aerosol Cans to the Universal Waste
Regulations

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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

DATES: This final rule is effective on February 7, 2020.

ADDRESSES: The EPA has established a docket for this action under
Docket ID No. EPA-HQ-RCRA-2017-0463. All documents in the docket are
listed on the http://www.regulations.gov website. Although listed in
the index, some information is not publicly available, e.g., CBI or
other information whose disclosure is restricted by statute. Certain
other material, such as copyrighted material, is not placed on the
internet and will be publicly available only in hard copy form.
Publicly available docket materials are available electronically
through http://www.regulations.gov.

FOR FURTHER INFORMATION CONTACT: Laura Stanley, Office of Land and
Emergency Management (5304P), Environmental Protection Agency, 1200
Pennsylvania Avenue NW, Washington, DC 20460; telephone number: 703-
308-7285; email address: [email protected],gov, or Tracy Atagi, Office
of Land and Emergency Management (5304P), Environmental Protection
Agency, 1200 Pennsylvania Avenue NW, Washington, DC 20460; telephone
number:<PHONE_NUMBER>; email address<EMAIL_ADDRESS>
SUPPLEMENTARY INFORMATION:

I. General Information

A. Does this action apply to me?

    This final rule will affect persons who generate, transport, treat,
recycle, or dispose of hazardous waste aerosol cans, herein referred to
as aerosol cans, unless those persons are households or very small
quantity generators (VSQGs). Entities potentially affected by this
action include over 25,000 industrial facilities in 20 different
industries (at the 2-digit North American Industry Classification
System (NAICS) code level). An estimated 7,483 of these facilities are
large quantity generators (LQG). Most of these industries have
relatively few entities that are potentially affected. The two top
economic sectors (at the 2-digit NAICS code level) with the largest
percentage of potentially affected entities are the retail trade
industry (NAICS code 44-45), representing 69% of the affected LQG
universe, and manufacturing (NAICS code 31-33), representing 17% of the
affected LQG universe. Potentially affected categories and entities
include, but are not necessarily limited to:

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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........................              5,194                303
31-33...............................  Manufacturing.......................              1,238              7,771
48-49...............................  Transportation and Warehousing......                168              1,033
62..................................  Health Care and Social Assistance...                184                 13
81..................................  Other Services (except Public                       169                  4
                                       Administration).
92..................................  Public Administration...............                113                190
61..................................  Educational Services................                116                 32
54..................................  Professional, Scientific, and                        89                 16
                                       Technical Services.
42..................................  Wholesale Trade.....................                 75                511
22..................................  Utilities...........................                 40                 14
56..................................  Administrative and Support and Waste                 51              1,906
                                       Management and Remediation Services.
                                      All Other NAICS Codes...............                 46                 49
                                                                           -------------------------------------
    Total...........................  ....................................              7,483             11,843
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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. Other entities not listed in the table could also be regulated.
To determine whether your entity is regulated by this action, you
should carefully examine the applicability criteria found in section V
of this action. If you have questions regarding the applicability of
this action to a particular entity, consult the person listed in the
FOR FURTHER INFORMATION CONTACT section.

B. What action is the agency taking?

    The Environmental Protection Agency (EPA) is adding hazardous waste
aerosol cans to the list of universal wastes regulated under the RCRA
regulations. This revision will benefit the wide variety of
establishments generating and managing aerosol cans, including the
retail sector, by providing a clear, practical system for handling
discarded aerosol cans.

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

    These regulations are promulgated under the authority of sections
2002(a), 3001, 3002, 3004, and 3006 of the Solid Waste Disposal Act, as
amended by the Resource Conservation and Recovery Act (RCRA), and as
amended by the Hazardous and Solid Waste Amendments (HSWA), 42 U.S.C.
6922, 6923, 6924, 6925, 6930, and 6937.

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

    This final action is estimated to result in an annual cost savings
of $5.3 million to $47.8 million. Information on the estimated economic
impacts of this action is presented in section VIII of this document,
as well as in the Regulatory Impact Analysis (RIA) available in the
docket for this final action. In addition to cost savings, EPA's
analysis shows qualitative benefits to adding aerosol cans to the
universal waste program, including improved implementation of and
compliance with the hazardous waste program and increased recovery and
recycling of aerosol cans.

II. List of Acronyms

CFR Code of Federal Regulations

DOT Department of Transportation
EPA Environmental Protection Agency
E.O. Executive Order
FR Federal Register
LQG Large Quantity Generator
LQHUW Large Quantity Handler of Universal Waste
NAICS North American Industry Classification System
NODA Notice of Data Availability
OMB Office of Management and Budget
RCRA Resource Conservation and Recovery Act
SQG Small Quantity Generator
SQHUW Small Quantity Handler of Universal Waste
TSDF Treatment, Storage and Disposal Facility
VSQG Very Small Quantity Generator

III. Background

A. Summary of Proposal

    On March 16, 2018, EPA published the proposal to add aerosol cans
to the Federal universal waste program (83 FR 11654). EPA's proposal
recognized that inclusion of this common waste stream as universal
waste could better ensure that aerosol cans are managed appropriately
at the end of their lives, remove these wastes from the municipal waste
stream, potentially encourage recycling, and reduce unnecessary burden
for generators.
    In its proposal, EPA analyzed the factors for inclusion of a waste
stream in the universal waste program and took public comment on its
conclusions. In addition, EPA defined what materials would qualify as
aerosol cans for the purposes of management as universal waste. EPA
proposed management standards for handlers of these materials and took
public comment on the proposed standards.
    In addition to the universal waste management standards that apply
to all universal waste handlers, such as labeling and marking,
accumulation time limits, employee training, responses to releases,
export requirements, and, for large quantity handlers of universal
waste, notification and tracking, EPA proposed specific standards that
relate to the puncturing and draining of aerosol cans.
    EPA proposed that puncturing and draining of aerosol cans be
conducted by a commercial device specifically designed to safely
puncture aerosol cans and effectively contain the residual contents as
well as any emissions from the puncturing and draining activities. In
addition, EPA proposed that handlers establish written procedures for
safely puncturing and draining universal waste aerosol cans and ensure
that employees operating the device be trained in the proper
procedures. EPA proposed that puncturing of aerosol cans be done in a
manner designed to prevent fires and releases and that any residuals
from puncturing cans be transferred to a tank or container, at which
point the handler must make a hazardous waste determination on the
residuals, as required in 40 CFR 262.11. The proposal also included
that written procedures be in place in the event of a spill or release,
that a spill clean-up kit be provided, and that any spills or leaks be
cleaned up promptly.
    In addition to these proposed standards, EPA analyzed the existing
state universal waste programs that include aerosol cans and requested
comment on including further limitations on puncturing and draining of
cans that might contain materials that pose an incompatibility hazard
with other materials or establishing further limits on which types of
handlers are allowed to puncture and drain aerosol cans within the
universal waste program.
    EPA has analyzed all the comments received in response to its
proposed rule and responds to those comments in this final rule or in
the Response to Comment document available in the docket for this
rulemaking.

B. Description of Aerosol Cans

    Aerosol cans are widely used for dispensing a broad range of
products including paints, solvents, pesticides, food and personal care
products, and many others. The Household and Commercial Products
Association estimates that 3.75 billion aerosol cans were filled in the
United States in 2016 for use by commercial and industrial facilities
as well as by households.\1\
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    \1\ Household and Commercial Products Association, Aerosol
Products Survey Shows Strong, Stable Industry, May 2017. https://www.thehcpa.org/aerosol-products-survey-shows-strong-stable-industry/ retrieved October 21, 2019.
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    A typical aerosol can consists of several components, including
(but not limited to) the following: (1) The can or container storing
both propellant and the product; (2) an actuator or button at the top
of the can that is pressed to deliver the product; (3) a valve, which
controls delivery or flow of the product; (4) the propellant (a
compressed gas or liquefied gas), which provides the pressure in the
container to expel or release the product when the actuator is pressed
to open the valve; (5) the product itself; and (6) a dip tube, which is
connected to the valve to bring the product up through the can to be
released when the actuator is pressed.\2\
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    \2\ National Aerosol Association, History of the Aerosol, 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. If the
propellant or product is ignitable, the contents of the can may readily
catch fire as they are released and exposed to atmospheric oxygen,
creating a rapidly burning vapor ``fireball.'' In addition, the bottom
of the can may detach as a result of a manufacturing defect or an
external force, potentially causing the upper part of the can to become
a projectile.
    Aerosol cans frequently contain flammable propellants such as
propane or butane which can cause the aerosol can to demonstrate the
hazardous characteristic for ignitability (40 CFR 261.21).\3\ In
addition, the aerosol can may also be a hazardous waste for other
reasons when discarded. More specifically, an aerosol can may contain
materials that exhibit hazardous characteristics per 40 CFR part 261,
subpart C. Similarly, a discarded aerosol can may also be a P- or U-
listed hazardous waste if it contains a commercial chemical product
found at 40 CFR 261.33(e) or (f).
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    \3\ University of Vermont, Paint and Aerosol Safety, http://www.uvm.edu/safety/art/paint-aerosol-safety, retrieved December 11,
2017.
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C. Current Federal Regulation of Aerosol Cans

1. Regulation of Aerosol Cans Under RCRA
    Any person who generates a solid waste, as defined in 40 CFR 261.2,
must determine whether the solid waste qualifies as hazardous waste.
The waste may be hazardous either because it is listed as a hazardous
waste in subpart D of 40 CFR part 261 or because it exhibits one or
more of the characteristics of hazardous waste, as provided in subpart
C of 40 CFR part 261. As discussed above, aerosol cans are frequently
hazardous due to the ignitability characteristic and in some cases may
also contain listed waste or

exhibit other hazardous waste characteristics.\4\
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    \4\ Aerosol cans that have not been discarded are not solid or
hazardous wastes.
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    Until this rulemaking goes into effect, many, but not all,
generators of aerosol cans identified or listed as a hazardous waste
have been subject to the full RCRA Subtitle C hazardous waste
management requirements, including all applicable requirements of 40
CFR parts 260 through 268. Depending on their activities, some
generators have only to meet the requirements of part 262, including
on-site management, pre-transport, and manifesting. Under 40 CFR
262.14, VSQGs, defined as facilities that generate less than or equal
to 100 kilograms of hazardous waste in a calendar month, are not
subject to the RCRA Subtitle C hazardous waste management standards,
provided they send their waste to a municipal solid waste landfill or
non-municipal nonhazardous waste facility approved by the state for the
management of VSQG wastes and meet other conditions. In addition,
households that generate waste aerosol cans are exempt from the Federal
hazardous waste management requirements under the household hazardous
waste exemption in 40 CFR 261.4(b)(1).\5\
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    \5\ Under 40 CFR 261.4(b)(1), ``household waste'' means any
material (including garbage, trash and sanitary wastes in septic
tanks) derived from households (including single and multiple
residences, hotels and motels, bunkhouses, ranger stations, crew
quarters, campgrounds, picnic grounds and day-use recreation areas).
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    Facilities that treat, store, and/or dispose of hazardous waste
aerosol cans are subject to the requirements of 40 CFR part 264 (for
permitted facilities) or the requirements of 40 CFR part 265 (for
interim status facilities). However, when hazardous waste aerosol cans
are recycled, the recycling process itself is not subject to
regulation, except as indicated in 40 CFR 261.6(d). EPA has interpreted
the current hazardous waste regulations to mean that puncturing and
draining an aerosol can, if performed for the purpose of recycling
(e.g., for scrap metal recycling), is considered part of the recycling
process and is exempt from RCRA permitting requirements under 40 CFR
261.6(c).\6\ However, until this rulemaking goes into effect,
facilities receiving hazardous waste aerosol cans from off site would
require a RCRA permit for storage prior to the recycling activity and
the recycling process would be subject to subparts AA and BB of 40 CFR
part 264 or 265, or subject to part 267.
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    \6\ EPA first explained this interpretation in 1993. See U.S.
EPA 1993 Regulatory Status of Used Residential And Commercial/
Industrial Aerosol Cans, Memo from Jeff Denit, Acting Director,
Office of Solid Waste to John DiFazio, Chemical Specialties
Manufacturers Association, October 7, 1993. RO# 11780.
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2. Regulation Under the Federal Insecticide, Fungicide, and Rodenticide
Act

    Hazardous waste aerosol cans that contain pesticides are also
subject to the requirements of the Federal Insecticide, Fungicide, and
Rodenticide Act (FIFRA), including compliance with the instructions on
the label. In general, the statement on aerosol pesticide product FIFRA
labels prohibits the puncturing of the cans. However, in April 2004,
EPA issued a determination that puncturing aerosol pesticide containers
in the process of recycling aerosol cans is consistent with the
purposes of FIFRA. The purpose of the label prohibiting puncturing of
pesticide-containing aerosol cans is to protect the ordinary users of
pesticides from the hazards of pressurized containers. The hazards
associated with recycling aerosol pesticide containers are adequately,
and more appropriately, addressed under Federal, state and local laws
concerning solid and hazardous wastes and occupational safety and
health. Such puncturing is therefore lawful pursuant to FIFRA section
2(ee)(6) provided that the following conditions are met:
     The puncturing of the container is performed by a person
who, as a general part of his or her profession, performs recycling
and/or disposal activities;
     The puncturing is conducted using a device specifically
designed to safely puncture aerosol cans and effectively contain the
residual contents and any emissions thereof; and
     The puncturing, waste collection, and disposal, are
conducted in compliance with all applicable Federal, state, and local
waste (solid and hazardous waste) and occupational safety and health
laws and regulations.\7\
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    \7\ 2004 U.S. EPA Puncturing of Aerosol Pesticide Products Under
FIFRA for the Purpose of Recycling, Letter from Lois Rossi and
William Diamond, Office of Pollution Prevention and Toxic
Substances, U.S. EPA, to John A. Wildie, Randolph Air Force Base,
April 30, 2004, Docket ID# EPA-HQ-OLEM-2017-0463-0007.
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D. Retail Strategy and Aerosol Cans

    The retail sector as a whole handles a very large number of diverse
products, which change over time and may, in many instances, become
regulated as hazardous waste under RCRA when discarded. As a result,
retailers are required to make hazardous waste determinations for a
variety of products being discarded at stores located across the
country.
    In 2014, EPA published a Notice of Data Availability (NODA) for the
Retail Sector as part of the Agency's continuing efforts to better
understand concerns from all stakeholders regarding RCRA's
applicability to the retail sector, as well as to obtain information
and feedback on issues affecting the retail sector (79 FR 8926,
February 14, 2014). In the NODA, EPA requested comment on a series of
topics related to retail operations, waste management practices, and
management of materials that may become hazardous waste when discarded.
This specifically included requests for information regarding aerosol
cans (e.g., quantity generated, classification, and management options,
including handling them as universal waste), since aerosol cans
comprise a large percentage of the retail sector's hazardous waste
stream. Approximately 35% of NODA commenters specifically suggested
that discarded aerosol cans be managed as universal waste.
    In response to comments on the Retail Sector NODA, the Agency
published the Strategy for Addressing the Retail Sector under RCRA's
Regulatory Framework, which lays out a cohesive plan to address the
unique challenges faced by the retail sector in complying with RCRA
regulations while reducing burden and protecting human health and the
environment.\8\ One of the action items under the Retail Strategy is to
explore adding hazardous waste aerosol cans to the Universal Waste
Rule. This final rule, which adds aerosol cans to the Federal universal
waste program, completes EPA's commitment in the Retail Strategy to
explore this option. Further, with this action, EPA has completed all
commitments made in the Retail Strategy.
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    \8\ EPA 2016. Strategy for Addressing the Retail Sector under
RCRA's Regulatory Framework. September 12, 2016. https://www.epa.gov/hwgenerators/strategy-addressing-retail-sector-under-resource-conservation-and-recovery-acts, retrieved on January 24,
2018.
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E. Universal Waste Rule

    In 1995, EPA promulgated the Universal Waste Rule (60 FR 25492, May
11, 1995) to establish a streamlined hazardous waste management system
for widely generated hazardous wastes as a way to encourage
environmentally sound collection and proper management of the wastes
within the system. Hazardous waste batteries, certain hazardous waste
pesticides, mercury-containing equipment, and hazardous waste lamps are
already included on the Federal list of universal wastes. The universal
waste regulations in 40 CFR part 273 are a set of alternative hazardous
waste management standards that operate in lieu of regulation under 40
CFR parts

260 through 272 for specified hazardous wastes.
    Handlers and transporters who generate or manage items designated
as a universal waste are subject to the management standards under 40
CFR part 273, rather than the full RCRA Subtitle C regulations.
Handlers include both facilities that generate universal waste and
facilities that receive universal waste from other universal waste
handlers, accumulate the universal waste, and then send the universal
waste to another handler, a destination facility, or a foreign
destination. Handlers do not include facilities that treat, dispose of,
or recycle universal waste except as provided in the universal waste
regulations. The regulations distinguish between ``large quantity
handlers of universal waste'' (those who handle more than 5,000
kilograms of total universal waste at one time) and ``small quantity
handlers of universal waste'' (those who handle 5,000 kilograms or less
of universal waste at one time). The 5,000-kilogram accumulation limit
applies to the quantity of all universal wastes accumulated. The
streamlined standards include requirements for storage, labeling and
marking, preparing the waste for shipment off site, employee training,
response to releases, and, in the case of large quantity handlers,
notification and tracking of universal waste shipments. Transporters of
universal waste are also subject to less stringent requirements than
the full Subtitle C hazardous waste transportation regulations.
    Under the Universal Waste Rule, destination facilities are those
facilities that treat, store, dispose, or recycle universal wastes.
Universal waste destination facilities are subject to all currently
applicable requirements for hazardous waste treatment, storage, and
disposal facilities (TSDFs) and must receive a RCRA permit for such
activities. Destination facilities that recycle universal waste and
that do not store that universal waste prior to recycling in accordance
with 40 CFR 261.6(c)(2) may be exempt from permitting under the Federal
regulations (see 40 CFR 273.60(b)). Finally, states implementing the
universal waste program are authorized to add wastes that are not
Federal universal wastes to their lists of universal wastes. Therefore,
in some states, aerosol cans are already regulated as a universal
waste.

F. State Universal Waste Programs That Include Aerosol Cans

    Five states--California, Colorado, New Mexico, Ohio, and Utah--
already have universal waste aerosol can programs in place, and
Minnesota plans to propose to add aerosol cans to their universal waste
regulations in 2019.\9\ The universal waste programs in all these
states include streamlined management standards similar to 40 CFR part
273 for small and large quantity handlers of universal waste and a one-
year accumulation time limit for the aerosol cans. In addition, the
five current state universal waste programs set standards for
puncturing and draining of aerosol cans by universal waste handlers.
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    \9\ See supporting document number 0004 in the docket for this
rulemaking (EPA-HQ-RCRA-2017-0463). See also Minnesota Pollution
Control Agency 2016, Public Rulemaking Docket, https://www.pca.state.mn.us/sites/default/files/mm-rule1-00.pdf, retrieved
August 21, 2019.
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    The aerosol can universal waste programs in California, Colorado,
New Mexico, Ohio, and Utah allow for puncturing and draining of aerosol
cans by universal waste handlers, as long as specific management
standards and waste characterization requirements are met. In addition,
California does not allow off-site commercial processors \10\ to
puncture and drain aerosol cans without a permit and requires those
handlers that do puncture and drain cans to submit a notification.
Guidance in effect in Minnesota at the time of publication of this
final rule also allows handlers to puncture and drain their aerosol
cans.
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    \10\ According to California's guidance for their regulations, a
``commercial processor'' is any person that processes aerosol cans
in exchange for compensation. Some examples include individuals from
another generator's site, registered hazardous waste transporters,
operators of hazardous waste treatment, storage and/or disposal
facilities, and operators of transportable treatment units.
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IV. Rationale for Including Aerosol Cans in the Universal Waste Rule

A. Factors for Inclusion in the Universal Waste Rule

    EPA is adding aerosol cans to the list of universal wastes because
this waste meets the factors found at 40 CFR 273.81 that describe
hazardous waste appropriate for management under the streamlined
universal waste system. Adding aerosol cans to the Universal Waste Rule
simplifies handling and disposal of the wastes for generators, while
ensuring that universal waste aerosol cans are sent to the appropriate
destination facilities, where they will be managed as a hazardous waste
with all applicable Subtitle C requirements to ensure protection of
human health and the environment. Management as universal waste under
the final requirements is also expected to facilitate environmentally
sound recycling of the metal used to make the cans.
    The universal waste regulations include eight factors to consider
in evaluating whether a waste is appropriate for including in the
regulations as a universal waste. These factors, codified at 40 CFR
273.81, are to be used to determine whether regulating a particular
hazardous waste under the streamlined standards would improve overall
management of the waste, and, therefore, whether the waste is a good
candidate to be a universal waste. As the Agency noted in the preamble
to the final Universal Waste Rule (60 FR 25513), not every factor must
be met for a waste to be appropriately regulated under the universal
waste system. However, consideration of the weight of evidence should
result in a conclusion that regulating a particular hazardous waste
under 40 CFR part 273 will improve waste management.
    EPA has examined information on aerosol cans, including information
submitted in the public comments on the proposed rule and the public
comments on the 2014 Retail NODA using the criteria in 40 CFR
273.81.\11\ In light of its evaluation of this information, the Agency
has determined that on balance, hazardous waste aerosol cans meet the
factors in 40 CFR 273.81 warranting inclusion on the Federal list of
universal wastes for management under part 273. EPA received numerous
comments on the proposed rule agreeing that aerosol cans are
appropriate for inclusion in the Universal Waste Rule. EPA believes
that adding aerosol cans to the list of universal wastes will make
collection and transportation of this waste to an appropriate facility
easier, and therefore will help facilitate recycling and reduce the
amount of aerosol cans disposed of in municipal landfills. A summary of
how the criteria in 40 CFR 273.81 apply to aerosol cans is described
below.
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    \11\ Public comments on the 2014 Retail NODA can be found in
docket number EPA-HQ-RCRA-2012-0426.
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1. The Waste, as Generated by a Wide Variety of Generators, Should Be a
Listed or Characteristic Hazardous Waste (40 CFR 273.81)(a))
    As discussed in section III, aerosol cans frequently demonstrate
the hazardous characteristic for ignitability (40 CFR 261.21) due to
the nature of the propellant used. In addition, the contents
(propellant or product) may also exhibit another hazardous
characteristic per 40 CFR part 261, subpart C, and may also be a P- or
U-

listed hazardous waste found at 40 CFR 261.33(e) or (f).
2. The Waste, or Category of Waste, Should Not Be Exclusive to a
Particular Industry or Group of Industries, But Generated by a Wide
Variety of Establishments (40 CFR 273.81(b))
    EPA has documented in the RIA for this final rule that large and
small quantity generators managing hazardous waste aerosol cans can be
found in 20 different industries (at the 2-digit NAICS code level).
Thus, aerosol cans are commonly generated by a wide variety of types of
establishments, including retail and commercial businesses, office
complexes, very small quantity generators, small businesses, government
organizations, as well as large industrial facilities.
3. The Waste Should Be Generated by a Large Number of Generators and
Frequently Generated in Relatively Small Quantities (40 CFR 273.81(c))
    As documented in the RIA, more than 25,000 large and small quantity
generators manage hazardous waste aerosol cans. Quantities generated
vary depending on the type of generator and the situations associated
with generation. For example, a retail store may determine that large
quantities of aerosol cans that can no longer be sold or donated must
be discarded as hazardous waste. On the other hand, entities that use
aerosol cans in their day-to-day operations may generate small
quantities of partially-used hazardous waste aerosol cans on a sporadic
basis. Data from the RIA demonstrate that in 2017, LQGs generated an
average of 1.6 tons per year each (approximately 3,600 cans).
4. Systems to Be Used for Collecting the Waste (Including Packaging,
Marking, and Labeling Practices) Would Ensure Close Stewardship of the
Waste (40 CFR 273.81(d))
    The baseline universal waste requirements of notification,
labeling, training, and response to releases found in 40 CFR part 273,
subparts B and C, and the final specific requirements for management of
aerosol cans in 40 CFR 273.13 and 40 CFR 273.33, discussed in section
V, are designed to ensure close stewardship of the hazardous waste
aerosol cans.
5. Risks Posed by the Waste During Accumulation and Transport Should Be
Relatively Low Compared to the Risks Posed by Other Hazardous Waste,
and Specific Management Standards Would Be Protective of Human Health
and the Environment During Accumulation and Transport (40 CFR
273.81(e))
    Aerosol cans are designed to contain the products they hold during
periods of storage and transportation as they move from the
manufacturer to the retailer, and ultimately to the final customer.
Because of their design, hazardous waste aerosol cans present a
relatively low risk compared to other types of hazardous waste that are
not contained as-generated under normal management conditions and the
risk posed by intact waste aerosol cans during storage and transport is
similar to the risk posed by intact product aerosol cans. Retail and
other entities that generate waste aerosol cans are accustomed to
safely handling aerosol can products. In addition, the ignitability
risk posed during accumulation and transport is addressed by standards
set by local fire codes, the Office of Safety and Health
Administration, and the Department of Transportation (DOT).\12\ These
standards include requirements for outer packaging, can design, and
general pressure conditions.
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    \12\ For example, DOT--49 CFR 173.306 for Shipping of Limited
Quantities, Aerosol Cans and 49 CFR 173.115 for Flammable Gas,
OSHA--29 CFR 1910.106(d)(6), Flammable Liquids, 2015 NFPA--Chapter
30, Flammable and Combustible Liquids Code, and Chapter 30B, Code
for the Manufacture and Storage of Aerosol Products.
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    Finally, the Agency has determined that the requirements of the
universal waste program are effective in mitigating risks posed by
hazardous waste aerosol cans. Specifically, the requirements for
handlers to accumulate aerosol cans in a container that is structurally
sound and compatible with the contents of the aerosol cans will ensure
safe management and transport. In addition, the universal waste program
requires proper training for employees when handling universal waste,
responding to releases, and shipment in accordance with DOT
regulations. These requirements will make the risks posed during
accumulation and transport low. Additionally, the final specific
requirements for management of aerosol cans that are punctured and
drained at the handler, described in section V, address the
ignitability risk and are designed to help prevent releases. Thus, the
specific aerosol can universal waste management standards address the
risks posed by hazardous waste aerosol cans.
6. Regulation of the Waste Under 40 CFR Part 273 Will Increase the
Likelihood That the Waste Will Be Diverted From Non-Hazardous Waste
Management Systems (e.g., the Municipal Solid Waste Stream) to
Recycling, Treatment, or Disposal in Compliance With Subtitle C of RCRA
(40 CFR 273.81(f))
    Managing hazardous waste aerosol cans under the universal waste
program is expected to increase the number of these items collected and
to increase the number of aerosol cans being diverted from the non-
hazardous waste stream into the hazardous waste stream because it would
allow generators, especially those that generate this waste
sporadically, to send it to a central consolidation point. Under the
Universal Waste Rule, a handler of universal waste can send the
universal waste to another handler, where it can be consolidated into a
larger shipment for transport to a destination facility. Therefore,
under the final rule it will be more economical to send hazardous waste
aerosol cans for recycling for recovery of metal values. The final rule
will advance the RCRA goal of increased resource conservation and
increase proper disposal of hazardous waste, making it less likely that
aerosol cans will be sent for improper disposal in municipal landfills
or municipal incinerators. In addition, because the streamlined
structure of the universal waste regulations makes aerosol can
collection programs more economical, hazardous waste aerosol cans that
might otherwise be sent to a municipal landfill under a VSQG or
household hazardous waste exemption will be more easily collected and
consolidated for hazardous waste disposal. This waste will be diverted
from the municipal solid waste stream to universal waste management.
7. Regulation of the Waste Under 40 CFR Part 273 Will Improve the
Implementation of and Compliance With the Hazardous Waste Regulatory
Program (40 CFR 273.81(g))
    The structure and requirements of the Universal Waste Rule are well
suited to the circumstances of handlers of hazardous waste aerosol cans
and their inclusion in the universal waste program will improve
compliance with the hazardous waste regulations. In particular,
handlers of hazardous waste aerosol cans who are infrequent generators
of hazardous waste and who might otherwise be unfamiliar with the more
complex Subtitle C management structure, but who generate hazardous
waste aerosol cans, will be able to more

easily send this waste for proper management. Therefore, adding aerosol
cans to the list of universal wastes would offer a protective hazardous
waste management system that is likely to be more accessible,
particularly for the retail sector, which can face unique compliance
challenges as compared to manufacturing and other ``traditional'' RCRA-
regulated sectors.\13\
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    \13\ EPA 2016. Strategy for Addressing the Retail Sector under
RCRA's Regulatory Framework. September 12, 2016. https://www.epa.gov/hwgenerators/strategy-addressing-retail-sector-under-resource-conservation-and-recovery-acts, retrieved on January 24,
2018.
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8. Additional Factor (40 CFR 273.81(h)): States' Experience Under
Existing State Universal Waste Programs Indicates That Regulation Under
40 CFR Part 273 Will Improve Management of Aerosol Cans
    The factors included in 40 CFR 273.81 are designed to determine
whether regulating a particular hazardous waste under the streamlined
standards for universal waste would improve the overall management of
the waste; 40 CFR 273.81(h) includes other factors as may be
appropriate. Under 40 CFR 273.81(h), EPA considered states' experience
of already managing aerosol cans under state universal waste programs.
As discussed in section III, five states have added aerosol cans to
their universal waste programs, and those states' experiences with
management of aerosol cans under their respective universal waste
programs provides a useful source of information to inform EPA's
judgment on whether to add aerosol cans to the national universal waste
program.
    Information supplied to EPA from officials in those five states
indicates that their programs improve the implementation of the
hazardous waste program. Specifically, waste management officials from
the four states whose programs were operating at the time of the
proposed rule have represented to EPA that these programs have been
operating well and achieving their objective of facilitating safe
management of hazardous waste aerosol cans.\14\ In particular, State
officials from both California and Colorado stated to EPA that their
respective aerosol can universal waste programs have been in effect
since 2002 and they have not identified any problems with enforcing
compliance with the standards. Accordingly, this information weighs in
favor of concluding that management of aerosol cans under the Federal
universal waste regulations is likely to be successful.
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    \14\ See supporting document number 0004 in the docket for this
rulemaking (EPA-HQ-RCRA-2017-0463).
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B. Expected Changes in Management of Aerosol Cans

    EPA expects that under this final rule, the number of aerosol cans
that are diverted from municipal solid waste landfills and incinerators
to recycling or disposal in Subtitle C facilities will increase. Small
and large quantity generators are already required to manage their
hazardous waste aerosol cans under RCRA Subtitle C. Following
implementation of this rule, some of these generators will likely begin
managing their aerosol cans as a universal waste, either to save money
or to improve implementation of their existing waste management
program. One of the streamlined provisions of the Universal Waste Rule
allows consolidation of aerosol cans at central locations, which makes
it easier for smaller generators to arrange for hazardous waste
recycling or disposal of these materials when they are generated.
Because the streamlined structure of the universal waste standards
makes aerosol can collection programs more economical, hazardous waste
aerosol cans that might otherwise be sent to a municipal landfill under
a VSQG or household hazardous waste exemption would be more easily
collected and consolidated for hazardous waste disposal by those who
are interested in managing it this way. EPA intends to encourage
individual households and VSQGs to participate in such programs.
    In summary, EPA believes that management of hazardous waste aerosol
cans will best be implemented through a universal waste approach where
handlers are operating within a simple, streamlined management system.
The universal waste program addresses the environmental concerns
surrounding the management of such wastes, while at the same time
putting into place a structure that will allow for and encourage
increased collection of aerosol cans for recycling.

V. Discussion of Final Rule

A. Waste Covered by Final Rule

1. Definition of Aerosol Can
a. Discussion of Proposed Rule
    EPA proposed that an ``aerosol can'' be defined as an ``intact
container in which gas under pressure is used to aerate and dispense
any material through a valve in the form of a spray or foam.'' This
definition is the same as the definition of aerosol can in the
California, Colorado, New Mexico and Utah universal waste programs,
with the exception of a twenty-four ounce size limit in Utah's
definition of aerosol can. EPA proposed to adopt this definition of
aerosol can to be consistent with the existing state programs.
    This proposed definition was intended be limited to sealed
containers whose intended use is to dispense a material by means of a
propellant or compressed gas. Aerosol cans are designed to contain
those materials until they are intended for release and to present
minimal risk during normal storage and transport. Other types of
containers, including compressed gas canisters and propane cylinders,
present a greater risk than aerosol cans and would not be included. EPA
also requested comment on limiting the definition of aerosol cans to
those under twenty-four ounces, consistent with Utah's aerosol can
universal waste program.
b. Summary of Comments
    Several commenters recommended that EPA model the definition of
aerosol can after language used in the DOT regulations in 49 CFR 171.8
and U.N. Model Regulations. An aerosol is defined in 49 CFR 171.8 as an
article consisting of any non-refillable receptacle containing a gas
compressed, liquefied, or dissolved under pressure, the sole purpose of
which is to expel a liquid, paste, or powder and fitted with a self-
closing release device allowing the contents to be ejected by the gas.
Commenters noted that, in addition to harmonizing the RCRA regulations
with DOT requirements, this language would be more inclusive, making it
clear that aerosol cans containing products that are not dispensed as a
spray or foam, such as aerosol cans that dispense product in the form
of paste or powder, may be managed as universal waste. In addition,
this definition would address the risk of gas cylinders if managed as
universal waste, since those cylinders would not be considered ``non-
refillable receptacles'' with a ``self-closing release device'' and
therefore not eligible to be managed as universal waste under the
alternative wording.
    Most commenters supported EPA's proposal to exclude compressed gas
cylinders from the definition of universal waste aerosol can, noting
that such devices pose a higher risk than aerosol cans pose. Two
industry commenters requested that compressed gas cylinders be included
as universal waste, with one commenter asserting that ``as long as
facilities have procedures in place to safely

depressurize these devices, potential risks can be mitigated.'' \15\
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    \15\ See comment number 0088 in the docket for this rulemaking
(EPA-HQ-RCRA-2017-0463).
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    Finally, most commenters (including industry, most states, and
local government) supported EPA's proposal to not set a specific size
limit on aerosol cans. One state association and a few individual
states did support limiting the size of aerosol cans to twenty-four
ounces.
c. Final Rule Provisions
    EPA is finalizing a definition of ``aerosol can'' that is
consistent with language in the DOT regulations.\16\ In the final rule,
aerosol can is defined as a non-refillable receptacle containing a gas
compressed, liquefied or dissolved under pressure, the sole purpose of
which is to expel a liquid, paste, or powder and fitted with a self-
closing release device allowing the contents to be ejected by the gas.
Using language from the DOT regulation will help ensure consistency
across Federal regulatory programs, avoid unnecessarily narrowing the
scope of the rule to aerosol cans that aerate their product, and will
not inadvertently include compressed gas cylinders in the definition of
aerosol can. Because compressed gas cylinders, unlike aerosol cans,
require special procedures to safely depressurize, it would not be
appropriate to include them in the final rule. Finally, because the DOT
language is more inclusive than the proposed language, it better
matches the intent of the proposal to apply to all types of aerosol
cans, including cans that dispense product in the form of paste or
powder, and would not require states that have already added aerosol
cans to their universal waste program to change their regulations.
---------------------------------------------------------------------------

    \16\ The DOT definition is also similar to the definition used
in U.N. Model regulations. EPA chose the DOT version in order to
promote consistency between the U.S. Federal regulatory programs.
---------------------------------------------------------------------------

2. Applicability
a. Discussion of Proposed Rule
    The proposed rule excluded from the universal waste requirements
those cans that are not yet a waste under 40 CFR part 261 and those
cans that are not hazardous waste. In addition, at proposed 40 CFR
273.6(b)(1)-(3), the proposal specifically excluded aerosol cans that
have been emptied of their contents (both propellant and product).
Aerosol cans that fall under these categories would not be subject to
hazardous waste requirements or universal waste requirements.
    Finally, the proposed rule also proposed to exclude aerosol cans
that show evidence of leakage, spillage, or damage that could cause
leakage under reasonably foreseeable conditions. This proposed rule
language would mean that hazardous waste aerosol cans that are not
intact would continue to be subject to the full hazardous waste
standards.
b. Summary of Comments
    Several commenters requested that EPA allow leaking and damaged
aerosol cans to be managed as universal waste. Commenters point out
that the rules for other types of universal wastes (lamps, pesticides,
batteries, mercury-containing equipment) allow damaged or leaking items
to be managed as universal waste as long as they are in an appropriate
container (e.g., overpacked with absorbents). Commenters were concerned
that determining whether an aerosol can shows ``evidence of leakage,
spillage, or damage that could cause leakage under reasonably
foreseeable conditions'' is a subjective standard that would be
confusing to implement. Commenters noted that Colorado allows damaged
aerosol cans to be managed as universal waste as long as they are
managed in a separate individual container and that Ohio allows damaged
aerosol cans to be managed as universal waste as long as they are
overpacked with absorbents or immediately punctured to remove the
contents of the can.
c. Final Rule Provisions
    EPA is finalizing as proposed the language in 40 CFR 273.6(b)(1)-
(3). These provisions designate aerosol cans that are not subject to
hazardous waste requirements because they are either not solid waste,
not hazardous waste, or they met the definition of empty container in
40 CFR 261.7.
    However, EPA is not finalizing the proposed language in 40 CFR
273.6(b)(4), which would have barred leaking or damaged aerosol cans
from being managed as universal waste, instead leaving such cans
subject to 40 CFR part 262 hazardous waste requirements. Rather, EPA is
requiring that universal waste aerosol cans that show evidence of
leakage must be packaged in a separate closed container or overpacked
with absorbents, or immediately punctured and drained in accordance
with the aerosol can universal waste requirements. (See 40 CFR
273.13(e)(2) and 40 CFR 273.33(e)(2)).
    EPA agrees with those commenters who indicated that such an
approach is more consistent with how other universal wastes are
regulated and how the states that currently regulate aerosol cans as
universal waste operate their programs. In addition, setting specific
protective management standards for leaking aerosol cans under the
universal waste regulations would ensure the risk from these cans is
addressed and that they are ultimately sent to appropriate destination
facilities per 40 CFR 273.18 and 40 CFR 273.38 instead of potentially
being diverted to municipal waste streams as VSQG waste per the
requirements in 40 CFR 262.14. Such an approach is also consistent with
DOT requirement that aerosols that are damaged, defective, or leaking
to the point where they do not meet applicable design standards be
transported in special aerosol salvage drums. See 49 CFR 173.306(k)(2).
3. Comments and Responses Related to ``Emptied'' Aerosol Cans
a. Comment: Empty Aerosol Cans Should be Allowed To Be Managed as
Universal Waste
    Summary of Comments. Several commenters requested that EPA clarify
that handlers should be able to continue to manage their punctured and
drained aerosol cans as a universal waste and send them to another
handler or destination facility. The proposed Sec.  273.6(b)(3)
designated aerosol cans that meet the standard for empty containers
under Sec.  261.7 of the chapter as being excluded from universal waste
requirements, and the proposed definition for aerosol cans included the
requirement that they be ``intact,'' implying that punctured aerosol
cans would not meet the definition. Commenters stated that including
empty aerosol cans would provide a clear decision process for
generators to include all aerosol cans--empty, full, or partially
full--for proper handling and disposal as universal waste. However,
commenters noted it would not be necessary to require empty aerosol
cans to be managed under the universal waste regulations because
generators may still want to manage empty aerosol cans as scrap metal
for recycling.
    EPA Response. EPA agrees that while aerosol cans that meet the
standard for empty containers found at 40 CFR 261.7 should not be
required to meet the universal waste requirements, they also should not
be barred from being managed as universal waste if a handler chooses to
do so. Residues in empty containers that meet the requirements of 40
CFR 261.7 are not subject to RCRA hazardous waste requirements.
However, a handler is nevertheless allowed under the regulation to
manage

aerosol cans that meet the empty container standards as universal waste
if they would prefer to do so. Likewise, non-hazardous aerosol cans may
be managed as universal waste, although they are not required to be
managed as such. EPA notes that the final definition of aerosol can is
based on the DOT definition and no longer specifies that the cans must
be ``intact,'' thus removing a potential source of confusion.
b. Comment: Additional Guidance Needed on How To Determine if an
Aerosol Can Meets the Empty Container Standard
    Summary of Comments. Several commenters suggested that EPA provide
additional guidance on how to determine if an aerosol can meets the
empty container standard found at 40 CFR 261.7. One commenter suggested
that EPA adopt guidance used by the State of Minnesota which recognizes
an aerosol can as ``empty'' when (1) the container contains no
compressed ignitable gas propellant or product; (2) all liquid product
that can be dispensed through the valve has been; and (3) less than 3%
of the product capacity of the container remains. Minnesota's guidance
also recognizes that documenting that an aerosol can meets this
standard can be impractical and therefore provides that aerosol cans
may be assumed empty when both of the following criteria are satisfied:
(1) No liquid is felt or heard when the can is shaken by hand; and (2)
no gas or liquid is released when the spray/discharge valve is
activated and the container is rotated through all directions, and the
valve is not observably or known to be clogged.\17\ Another commenter
suggested that EPA add a provision to 40 CFR 261.7 stating that an
aerosol can is empty when it has been punctured and drained. The
commenter stated that this provision should apply to cans that hold
characteristic or listed wastes.\18\
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    \17\ See comment number 0086 in the docket for this rulemaking
(EPA-HQ-RCRA-2017-0463).
    \18\ See comment number 0085 in the docket for this rulemaking
(EPA-HQ-RCRA-2017-0463).
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    EPA Response. Under 40 CFR 261.7(b),\19\ a container that has held
non-acute hazardous waste is ``empty'' if (1) all wastes have been
removed that can be removed using the practices commonly employed to
remove materials from that type of container, e.g., pouring, pumping,
and aspirating (applicable in all cases), and (2) no more than 2.5
centimeters (one inch) of residue remains on the bottom of the
container or inner liner, or (3) no more than 3 percent by weight of
the total capacity of the container remains in the container or inner
liner if the container is less than or equal to 119 gallons in size. In
addition, a container that has held a hazardous waste that is a
compressed gas is empty when the pressure in the container approaches
atmospheric pressure.
---------------------------------------------------------------------------

    \19\ EPA did not request comment on or otherwise reopen the
empty container provisions of 40 CFR 261.7 and comments requesting
changes to the empty container regulations are outside the scope of
this rule.
---------------------------------------------------------------------------

    In the case of a container that has held an acute hazardous waste
listed in 40 CFR 261.31 or 261.33(e), the container is considered empty
when it has been triple rinsed or has been cleaned by another method
that has been shown in scientific literature, or by tests conducted by
the generator to achieve equivalent removal, per 40 CFR 261.7(b)(3).
EPA also considers a container that has held an acute hazardous that is
a compressed gas to meet the definition of empty when it approaches
atmospheric pressure, as defined in 40 CFR 261.7(b)(2).\20\ EPA is not
aware of a chemical commonly found in aerosol cans that would be listed
as an acute hazardous waste, but if such an aerosol can product does
exist, it would have to meet the 40 CFR 261.7(b)(2) or (3) standard to
be considered ``empty'' under the regulations. The commenter request
for a revision to 40 CFR 261.7 that would allow aerosol cans that have
held acutely hazardous waste to be disposed of without meeting the
current standard in 40 CFR 261.7(b)(3) when punctured and drained is
being beyond the scope of this rulemaking.
---------------------------------------------------------------------------

    \20\ EPA first explained this interpretation in 2017. See U.S.
EPA 2017 RCRA Regulatory Status of Permeation Device, Memo from
Barnes Johnson, Director, Office of Resource Conservation and
Recovery to Alex Chaharom, GeNO LLC, February 9, 2017. RO# 14887
---------------------------------------------------------------------------

    However, in the case of aerosol cans being recycled, rather than
disposed of, aerosol cans that have been punctured and drained prior to
recycling are considered exempt scrap metal under 40 CFR
261.6(a)(3)(ii), and therefore all such punctured cans would be exempt
from hazardous waste requirements when recycled.
c. Comment: EPA Should Clarify That an Aerosol Can Does Not Need To Be
``Empty'' To Be Exempt Scrap Metal
    Summary of Comments. One commenter noted that EPA said in the
proposed rule that aerosol containers that meet the definition of empty
in 40 CFR 261.7 are not subject to hazardous waste regulation and may
be recycled as scrap metal. They found this statement misleading
because it implies that the aerosol can must be RCRA empty, per 40 CFR
261.7, to be classified as exempt scrap metal. The commenter stated
that an aerosol container does not need to be completely empty or
triple rinsed (if it held a P-listed waste) to be classified and
recycled as scrap metal. However, it is a good management practice to
remove as much of the waste from the aerosol can as possible.
    EPA Response. Under 40 CFR 261.1, ``scrap metal'' is defined as
bits and pieces of metal parts (e.g., bars, turnings, rods, sheets,
wire) or metal pieces that may be combined together with bolts or
soldering (e.g., radiators, scrap automobiles, railroad box cars),
which when worn or superfluous can be recycled. Under 40 CFR
261.6(a)(3)(ii), exempt scrap metal is not subject to regulation under
parts 262 through 268, part 270, or part 124, and is not subject to the
notification requirements of section 3010 of RCRA.
    However, an aerosol can that still contains hazardous liquid and/or
hazardous compressed gas would not meet the definition of scrap metal
and would not be eligible for the scrap metal exemption. As EPA has
clearly stated, materials containing significant amounts of liquid
cannot be eligible to be exempt scrap metal.\21\ Thus while EPA agrees
that aerosol cans do not need to be triple rinsed prior to being
recycled as scrap metal, they do need to have their contents removed to
be considered scrap metal.
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    \21\ EPA 1985 Definition of Solid Waste Final Rule, 50 FR 614 at
624-625, January 4, 1985.
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d. Comment: Universal Waste Handlers Should Not Be Required To Make a
Hazardous Waste Determination on the Emptied Cans
    Summary of Comments. One commenter noted that 40 CFR
273.13(e)(3)(v) and 273.33(e)(3)(v) of the proposed rule require that
the universal waste handler ``Conduct a hazardous waste determination
on the emptied aerosol can and its contents per 40 CFR 262.11.'' While
the commenter agreed on the need for a hazardous waste determination to
be made on the contents, they stated that requiring it for the emptied
cans contradicts prior EPA guidance regarding scrap metal. The proposed
rule only allows for puncturing of cans on the condition that the empty
punctured aerosol cans be recycled. EPA has previously stated that a
formal hazardous waste determination is not required for scrap metal
being recycled under 40 CFR 261.6(a)(3)(ii).\22\
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    \22\ EPA 1993 Memorandum from Jeffrey D. Denit, Acting Director,
Office of Solid Waste to Gregory L. Crawford. Regulatory Status of
Used Residential And Commercial/Industrial Aerosol Cans, October 7,
1993, RO#11782; EPA 1994; Memorandum from to Michael H. Shapiro,
Director, Office of Solid Waste, to Michael C. Campbell, Regulatory
Status of Waste Aerosol Cans, January 1, 1994, RO#11806.

---------------------------------------------------------------------------

    EPA response. EPA agrees with the comment and has removed the
language in 40 CFR 273.13(e)(3)(v) and 273.33(e)(3)(v) requiring a
waste determination to be made on the emptied aerosol can destined for
recycling.

B. Management Requirements for Aerosol Cans

1. Requirements for Small and Large Quantity Handlers
    Under the final rule, the existing universal waste requirements
currently applicable to small quantity handlers of universal waste
(SQHUW) and large quantity handlers of universal waste (LQHUW) are also
applicable to handlers of discarded aerosol cans.\23\ For both SQHUWs
and LQHUWs, these requirements include waste management standards,
labeling and marking, accumulation time limits, employee training,
responses to releases, requirements related to off-site shipments, and
export requirements. LQHUWs are subject to additional notification and
tracking requirements. For the labeling requirement, EPA is finalizing
in 40 CFR 273.14 and 273.34 that either each aerosol can, or a
container in which the aerosol cans are contained, must be labeled or
marked clearly with any of the following phrases: ``Universal Waste--
Aerosol Can(s),'' ``Waste Aerosol Can(s),'' or ``Used Aerosol Can(s).''
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    \23\ Note that EPA did not ask for comment or otherwise reopen
the pre-existing universal waste requirements that will now also
apply to universal waste aerosol cans. Comments on the pre-existing
universal waste requirements are beyond the scope of this
rulemaking.
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    In addition, EPA is finalizing that small and large quantity
universal waste handlers must follow certain specific management
standards while handling their universal waste aerosol cans. Under the
final rule, all handlers must manage their universal waste aerosol cans
in a manner designed to prevent releases to the environment. This
management includes accumulating universal waste aerosol cans in
containers that are structurally sound and compatible with the contents
of the can, and show no evidence of leaks, spills, or damage that could
cause leaks under reasonably foreseeable conditions. The accumulation
requirements in this final rule are similar to the existing
accumulation requirements for small and large quantity universal waste
handlers for other types of universal waste in 40 CFR 273.13 and 273.33
and are found in new paragraph (e) of each of these sections. Handlers
may sort aerosol cans by type and consolidate intact aerosol cans in
larger containers, remove actuators to reduce the risk of accidental
release, and, under certain conditions, may puncture and drain aerosol
cans when the emptied cans are to be recycled, as described below.
    Other than the comments on the requirements for puncturing and
draining at small and large quantity handlers, which are described
below, EPA received few comments on the requirements for small and
large quantity universal waste handlers. One state association urged
EPA to place limits on the accumulation requirements for universal
waste handlers by requiring separation of incompatible wastes because
of the wide array of products aerosol cans contain.\24\ EPA is
finalizing the performance-based standard that handlers must manage
their universal waste aerosol cans in a manner that prevents releases,
but EPA is not requiring separation of specific types of aerosol cans
whose contents may pose an incompatibility risk because EPA expects the
intact aerosol cans will ensure the contents of these cans will not mix
and therefore will not pose incompatibility risks. In addition, EPA is
requiring that universal waste aerosol cans that show evidence of
leakage must be packaged in a separate closed container or overpacked
with absorbents, or immediately punctured and drained in accordance
with the aerosol can universal waste requirements. (See 40 CFR
273.13(e)(2) and 40 CFR 273.33(e)(2)), thus removing the risk of
incompatible contents mixing during storage and transport.
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    \24\ See comment number 0073 in the docket for this rulemaking
(EPA-HQ-RCRA-2017-0463).
---------------------------------------------------------------------------

    A waste management industry commenter suggested EPA require that
handlers accumulate universal waste aerosol cans in strong outer
packaging that will not be allowed to build pressure, that the contents
of the aerosol cans are compatible, and that protective caps are in
place or valve stems are removed to prevent the accidental release of
the contents of the aerosol cans during storage and handling.\25\ EPA
is finalizing, as proposed, the performance-based standards that
require the aerosol cans to be accumulated in containers that are
structurally sound and compatible with the contents of the cans. EPA is
not requiring handlers to remove the actuators to reduce the risk of
accidental release but is allowing handlers to do so prior to
accumulation if they choose.
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    \25\ See comment number 0063 in the docket for this rulemaking
(EPA-HQ-RCRA-2017-0463).
---------------------------------------------------------------------------

    A state commenter suggested that EPA include more specific safety
measures to address the risk of cans bursting when exposed to excessive
heat during accumulation, regardless of whether the handler punctures
and drains the universal waste aerosol cans.\26\ In order to address
this risk, EPA added language to 40 CFR 273.13(e)(1) and 40 CFR
273.33(e)(1) to require the universal waste aerosol cans be accumulated
in a container that is protected from sources of heat. Sources of heat
include, but are not limited to, open flames; lighting; smoking;
cutting and welding; hot surfaces; frictional heat; static, electrical,
and mechanical sparks; and heat-producing chemical reactions.\27\ For
example, handlers should not allow smoking or open flames near
containers accumulating universal waste aerosol cans. It is the
responsibility of the operator to ensure that the containers
accumulating universal waste aerosol cans are protected from sources of
heat.
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    \26\ See comment number 0085 in the docket for this rulemaking
(EPA-HQ-RCRA-2017-0463).
    \27\ This list is derived from OSHA's definition of ``sources of
ignition'' in 29 CFR 1910.106(h)(7)(i)(a).
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2. Requirements on Puncturing and Draining at Small and Large Quantity
Handlers
a. Summary of Proposal
    EPA proposed specific management standards for the puncturing and
draining of aerosol cans at universal waste handlers, similar to the
requirements being implemented in states that added aerosol cans to
their list of universal waste. EPA proposed that puncturing and
draining activities be conducted by a device specifically designed to
safely puncture aerosol cans and effectively contain the residual
contents and any emissions thereof.
    EPA proposed that handlers must establish a written procedure
detailing how to safely puncture and drain universal waste aerosol cans
(including operation and maintenance of the unit; segregation of
incompatible wastes; and proper waste management practices to prevent
fires or releases), maintain a copy of the manufacturer's specification
and instruction on site, and ensure that employees operating the
devices are trained in the proper procedures.
    EPA also proposed that the actual puncturing of the cans should be
done in a manner designed to prevent fires and to prevent the release
of the aerosol can contents to the environment so as to minimize human
exposure. This included, but was not limited to,

locating the equipment on a solid, flat surface in a well-ventilated
area.
    In addition, EPA proposed that the contents from the cans should be
immediately transferred from the waste aerosol cans or puncturing
device (if applicable), to a container or tank and that the contents
are subject to a hazardous waste determination under 40 CFR 262.11. If
the contents are hazardous waste, the handler becomes the hazardous
waste generator of the hazardous aerosol can contents and must manage
those wastes in accordance with applicable RCRA regulations.
    The proposed rule also required that a written procedure be in
place in the event of a spill or release and a spill clean-up kit must
be provided. All spills or leaks of the contents must be cleaned up
promptly.
    EPA requested comment on establishing further limitations on the
puncturing and draining of aerosol cans that may contain wastes
incompatible with the puncturing and draining equipment or the contents
of other cans being drained. EPA also requested comment on limiting
puncturing and draining to handlers that are not commercial processors
(i.e., a person that processes aerosol cans received from other
entities in exchange for compensation). Such a limitation would be
consistent with California's universal waste program. Handlers that are
off-site commercial processors could still accept aerosol cans and
process the cans by sorting and consolidating them but would be unable
to puncture and drain the cans. Under this option, off-site commercial
processors that would like to puncture and drain aerosol cans would
have to first meet the requirements for a universal waste destination
facility (e.g., obtaining a permit for the storage of the hazardous
waste aerosol cans prior to recycling).
b. Summary of Comments
    The most frequent comment EPA received on puncturing and draining
was on limiting handlers from puncturing and draining aerosol cans
received from off-site handlers. For example, waste management industry
commenters and some state commenters requested that EPA not allow off-
site handlers to puncture and drain aerosol cans collected from other
handlers unless they first meet the requirements for a universal waste
destination facility.\28\ On the other hand, an industry commenter and
a state commenter requested that EPA not limit which handlers can
puncture and drain aerosol cans.\29\ Multiple industry commenters
requested that, at a minimum, if EPA limits off-site handlers from
puncturing and draining, EPA still allow off-site handlers to puncture
and drain aerosol cans collected from other handlers in the same
company or handlers that are related entities.\30\
---------------------------------------------------------------------------

    \28\ See comment numbers 0063, 0074, 0085, and 0091 in the
docket for this rulemaking (EPA-HQ-RCRA-2017-0463).
    \29\ See comment numbers 0029 and 0080 in the docket for this
rulemaking (EPA-HQ-RCRA-2017-0463).
    \30\ See comment numbers 0077, 0087, and 0093 in the docket for
this rulemaking (EPA-HQ-RCRA-2017-0463).
---------------------------------------------------------------------------

    EPA also received numerous comments on the specific management
standards for the puncturing and draining of aerosol cans at universal
waste handlers. EPA received broad comments from industry commenters
supporting the proposed standards for the puncturing and draining of
aerosol cans as sufficient and arguing that further limitations are not
necessary.\31\ EPA also received specific suggestions from industry
commenters on the management standards. For example, one commenter
recommended that EPA should not place additional limitations on
puncturing and draining designed to address potential incompatibility
concerns because they are not necessary.\32\ On the other hand, one
state requested that EPA prohibit handlers from puncturing and draining
aerosol cans with possible incompatibility with the puncturing and
draining equipment or the contents of other cans being drained.\33\
---------------------------------------------------------------------------

    \31\ See comment numbers 0075 and 0083 in the docket for this
rulemaking (EPA-HQ-RCRA-2017-0463).
    \32\ See comment number 0087 in the docket for this rulemaking
(EPA-HQ-RCRA-2017-0463).
    \33\ See comment number 0077 in the docket for this rulemaking
(EPA-HQ-RCRA-2017-0463).
---------------------------------------------------------------------------

    State associations commented that EPA should require puncturing and
draining to be conducted in a commercially-manufactured device and not
allow handlers to use ``homemade'' devices.\34\ A commenter from the
waste management industry argued that there is no basis for requiring
puncturing and draining to be conducted in a commercial device and
pointed out that many companies have designed and operated their own
equipment for such purposes based on their engineering expertise.\35\
---------------------------------------------------------------------------

    \34\ See comment numbers 0073 and 0085 in the docket for this
rulemaking (EPA-HQ-RCRA-2017-0463).
    \35\ See comment number 0074 in the docket for this rulemaking
(EPA-HQ-RCRA-2017-0463).
---------------------------------------------------------------------------

    Commenters also asked for the requirement that puncturing and
draining activities be conducted in a device designed to effectively
contain the residual contents and emissions to be clarified.\36\
Specifically, commenters requested EPA clarify what ``effectively
contain'' means in relation to emissions and what constitutes
breakthrough.\37\ A state association commenter wrote that the only way
to ensure the puncturing and draining activities are containing
emissions it to implement an air monitoring program or to ensure the
devices are equipped with ``end of life'' filters that show when
breakthrough is occurring.\38\ An industry commenter wrote that a
requirement that allows for no breakthrough is not practical, but that
handlers can maximize collection of emissions by following manufacturer
instructions.\39\
---------------------------------------------------------------------------

    \36\ See comment numbers 0073 and 0085 in the docket for this
rulemaking (EPA-HQ-RCRA-2017-0463).
    \37\ See comment numbers 0001, 0073, and 0085 in the docket for
this rulemaking (EPA-HQ-RCRA-2017-0463).
    \38\ See comment number 0073 in the docket for this rulemaking
(EPA-HQ-RCRA-2017-0463).
    \39\ See comment number 0001 in the docket for this rulemaking
(EPA-HQ-RCRA-2017-0463).
---------------------------------------------------------------------------

    EPA also received comments from state associations urging EPA to
require handlers that puncture and drain to establish and follow a
written procedure detailing how to safely puncture aerosol cans rather
than only require handlers to establish a written procedure as
proposed.\40\ Commenters also pointed out that it is common practice to
operate puncturing and draining devices on spill catchment pallets to
aid in capturing accidental leaks or spills and asked EPA to allow this
under the final rule.\41\
---------------------------------------------------------------------------

    \40\ See comment numbers 0073 and 0085 in the docket for this
rulemaking (EPA-HQ-RCRA-2017-0463).
    \41\ See comment number 0064 in the docket for this rulemaking
(EPA-HQ-RCRA-2017-0463).
---------------------------------------------------------------------------

c. Final Rule Provisions
    EPA expects puncturing and draining activities at universal waste
handlers will differ from those currently performed by hazardous waste
generators. Because handlers receive universal waste from many other
handlers, the volume of aerosol cans punctured and drained at a
commercial universal waste handler is likely to be much greater than at
a typical hazardous waste generator (which can only puncture and drain
its own hazardous waste aerosol cans). In addition, under universal
waste regulations, handlers may store their universal waste up to a
year, which could increase the number of cans punctured and drained at
one time if the facility processes the cans in batches. Thus, EPA
believes it is appropriate to include performance-

based management standards to address the risk of puncturing and
draining aerosol cans at universal waste handlers.
    Despite the differences between recycling of aerosol cans at
hazardous waste generators versus recycling of aerosol cans at
universal waste handlers, under the final rule, EPA is not limiting
off-site handlers from puncturing and draining aerosol cans collected
from other handlers. Based on an observed lack of damage cases from
puncturing and draining aerosol cans in the manner described in this
rule, it appears that risks posed by universal waste handlers
puncturing and draining aerosol cans collected from other handlers is
relatively low. EPA has determined that the final management standards
for the puncturing and draining of aerosol cans at universal waste
handlers at 40 CFR 273.13(e)(4) and 40 CFR 273.33(e)(4) adequately
address the low risks. Additionally, the five of the six states that
have added aerosol cans to their list of universal wastes allow off-
site handlers to puncture and drain aerosol cans collected from other
handlers, and EPA is not aware of any damage cases resulting
specifically from the puncturing and draining under universal waste in
these states.\42\ In particular, State officials from Colorado stated
to EPA that their respective aerosol can universal waste programs have
been in effect for over 15 years, and they have not identified any
damage cases associated with puncturing and draining.\43\
---------------------------------------------------------------------------

    \42\ See supporting document number 0004 in the docket for this
rulemaking (EPA-HQ-RCRA-2017-0463).
    \43\ See docket for this rulemaking (EPA-HQ-RCRA-2017-0463).
---------------------------------------------------------------------------

    As mentioned, EPA is finalizing management standards for the
puncturing and draining of aerosol cans at universal waste handlers to
increase protections. Under the final rule, puncturing and draining
activities must be conducted by a device specifically designed to
safely puncture aerosol cans and effectively contain the residual
contents and any emissions thereof. EPA is not finalizing that the
puncturing and draining activities must be conducted in a commercial
device or a commercially-manufactured device and is instead finalizing
a performance-based standard. In response to comments, EPA is not
limiting universal waste handlers that have designed their own
equipment for puncturing and draining and operated it safely from
continuing to use that equipment. If a universal waste handler uses
specifically custom designed or retrofitted equipment to ensure that
the device safely punctures aerosol cans, it should ensure the
equipment is designed or retrofitted according to accepted engineering
practices based on established codes, standards, published technical
reports, or similar peer reviewed documents. Although EPA received
comments from the waste management industry arguing that their members
have safely designed and operated their own equipment for puncturing
and draining aerosol cans, EPA expects most universal waste handlers
will choose to purchase commercial devices designed to puncture aerosol
cans. Puncturing and draining systems for aerosol cans are available
from multiple commercial vendors. These devices generally consist of an
enclosed puncturing device that punctures an aerosol can, allowing the
contents to be drained into an attached container. In many cases, these
containers are 55-gallon drums with a filter made of carbon or similar
materials to capture any gases that may escape the 55-gallon drum
during the puncturing and draining process.
    Manufacturers of aerosol can puncturing and draining devices
include instructions for their use.\44\ These instructions include
operating devices in a well-ventilated area that is free from sparks
and ignition sources in order to prevent fires, use of personal
protective equipment such as safety goggles, and segregating
incompatible products from being drained into the same container.
Operators of puncturing and draining devices are also instructed to
ensure that the container remains closed, that it does not become
overfilled, and that the container or tank storing the contents of the
drained aerosol cans is also kept in a well-ventilated area free from
sparks or ignition sources.
---------------------------------------------------------------------------

    \44\ See supporting document 0003 in the docket for this
rulemaking (EPA-HQ-RCRA-2017-0463).
---------------------------------------------------------------------------

    EPA received multiple comments arguing that the requirement that
puncturing and draining activities be conducted in a device designed to
effectively contain the residual contents and emissions needs to be
clarified.\45\ Specifically, commenters requested EPA clarify what
``effectively contain'' means in relation to emissions.\46\ The
performance of aerosol can puncturing and draining devices will vary by
manufacturer and it remains the responsibility of the operator to
ensure breakthrough is not occurring. Although commenters pointed out
that handlers could ensure devices are equipped with ``end of life''
filters that show when breakthrough is occurring, it is impractical to
impose this requirement on all universal waste handlers who use
puncturing and draining equipment because the manufacturer's guidance
with respect to containing emissions varies across the industry.\47\
For example, some manufacturers recommend limiting the number of cans
drained per filter while other manufacturers recommend weighing the
filter before and during use.\48\ Given the variability in the market,
it is impractical for EPA to determine a single, appropriate standard
for ensuring breakthrough is not occurring. Rather, EPA is finalizing
as proposed the performance-based standard that universal waste
handlers must use a device designed to safely puncture aerosol cans and
effectively contain the residual contents and any emissions thereof.
Universal waste handlers can minimize the potential for breakthrough by
maintaining the puncturing and draining device and replacing air
filters according to the manufacturer's specifications.
---------------------------------------------------------------------------

    \45\ See comment numbers 0073 and 0085 in the docket for this
rulemaking (EPA-HQ-RCRA-2017-0463).
    \46\ See comment numbers 0001, 0073, and 0085 in the docket for
this rulemaking (EPA-HQ-RCRA-2017-0463).
    \47\ See supporting document 0003 in the docket for this
rulemaking (EPA-HQ-RCRA-2017-0463).
    \48\ See comment number 0005 and supporting document 0003 in the
docket for this rulemaking (EPA-HQ-RCRA-2017-0463).
---------------------------------------------------------------------------

    Because handlers are responsible for ensuring that the puncturing
device is properly draining the contents of the aerosol cans into the
drum, EPA is finalizing that handlers must establish and follow a
written procedure to ensure that handlers take the necessary
precautions to protect human health and the environment while
puncturing and draining universal waste aerosol cans. At a minimum, EPA
is requiring that the written procedure address the operation and
maintenance of the unit, including its proper assembly; segregation of
incompatible wastes; and proper waste management practices (e.g.,
ensuring that ignitable wastes are stored away from heat or open
flames). In order to increase protections, EPA is clarifying in the
final rule that handlers must follow the written procedure.
Additionally, EPA is finalizing that handlers must maintain a copy of
the manufacturers' instructions on site and ensure employees operating
the device are trained in the proper procedures.
    Although some states have issued guidelines for recommending
against puncturing and draining certain types of aerosol cans, there is
limited publicly

available data on the subset of aerosol cans that pose an
incompatibility risk. Additionally, since new products enter the market
and products are constantly changing, it is not practical to codify a
finite list of aerosol cans that pose an incompatibility risk.
Therefore, EPA is not providing a list of certain types of aerosol cans
that might pose incompatibility issues with puncturing devices or the
contents of other aerosol cans that are drained. However, it remains
the responsibility of the operator to ensure that the puncturing device
does not puncture aerosol cans that are incompatible with its materials
or the contents of other aerosol cans that are being drained. Because
aerosol cans are consumer products, aerosol cans have labels that
identify the products contained within, including any hazardous posed
by the contents which can assist handlers in ensuring they have
addressed incompatibility issues. As mentioned above, EPA is requiring
handlers to establish and follow a written procedure that addresses the
operation of the unit, including the segregation of incompatible
wastes. The operator can look to state guidance and manufacturer's
guidance for information. For example, manufacturers make information
available regarding potential incompatibilities between aerosol can
propellants and puncturing devices container rubber seals or
gaskets.\49\
---------------------------------------------------------------------------

    \49\ See Compilation of Manufacturer's Guidance on Devices for
Puncturing and Draining Aerosol Cans, December 2017, in the docket
for this rulemaking (EPA-HQ-RCRA-2017-0463).
---------------------------------------------------------------------------

    EPA is also finalizing that the actual puncturing of the cans be
done in a manner designed to prevent fires and to prevent the release
of the aerosol can contents to the environment so as to minimize human
exposure. This manner includes, but is not limited to, locating the
equipment on a solid, flat surface in a well-ventilated area.
Commenters pointed out that it is common practice to operate puncturing
and draining devices on spill catchment pallets to aid in capturing
accidental leaks or spills, which is allowed under the final rule if
the spill catchment pallet is located on a solid, flat surface.
    In addition, EPA is finalizing that the handler must immediately
transfer the contents from the waste aerosol can, or the puncturing
device (if applicable), to a container or tank and conduct a hazardous
waste determination of the contents under 40 CFR 262.11. The handler
becomes the generator of any hazardous aerosol can contents and must
manage those wastes in accordance with applicable RCRA regulations.
    The final rule also requires that a written procedure be in place
in the event of a spill or leak and a spill clean-up kit should be
provided. All spills or leaks of the contents of the aerosol cans
should be cleaned up promptly.
    Finally, EPA notes that all puncturing, waste collection, and
disposal must be conducted in compliance with all applicable Federal,
state and local waste (solid and hazardous waste) and occupational
safety and health laws and regulations.
3. Requirements for Transporters
    This final rule will not change any of the existing requirements
applicable to universal waste transporters. Under 40 CFR 273.9, the
definition of a universal waste transporter is a person engaged in the
off-site transportation of universal waste by air, rail, highway, or
water. Persons meeting the definition of universal waste transporter
include those persons who transport universal waste from one universal
waste handler to another, to a processor, to a destination facility, or
to a foreign destination. These persons are subject to the universal
waste transporter requirements of part 273, subpart D. EPA notes that
this final rule also will not affect the applicability of shipping
requirements under the hazardous waste materials regulations of DOT.
Transporters continue to be subject to these requirements, if
applicable (e.g., 49 CFR 173.306 for shipping of limited quantities of
aerosol cans, or 49 CFR 173.115(l), which sets limits in the definition
of ``aerosol'' for the purpose of shipping flammable gas).
4. Requirements for Destination Facilities
    This final rule will not change any of the existing requirements
applicable to universal waste destination facilities (subpart E of part
273). Under 40 CFR 273.9, the definition of a destination facility is a
facility that treats, disposes of, or recycles a particular category of
universal waste (except certain activities specified in the regulations
at Sec. Sec.  273.13(a) and (c) and 273.33(a) and (c)).
5. Effect of This Rule on Household Wastes and Very Small Quantity
Generators
    Adding hazardous waste aerosol cans to the Federal definition of
universal wastes would not impose any requirements on households or
VSQGs for managing these cans. Household waste continues to be exempt
from RCRA Subtitle C regulations under 40 CFR 261.4(b)(1). However,
under the Universal Waste Rule provisions, VSQGs may choose to manage
their hazardous waste aerosol cans in accordance with either the VSQG
regulations under 40 CFR 262.14 or as a universal waste under part 273
(40 CFR 273.8(a)(2)). It should be noted, however, that 40 CFR 273.8(b)
will continue to apply. Under this provision, if household or VSQG
wastes are mixed with universal waste subject to the requirements of 40
CFR part 273 (i.e., universal waste that is not generated by households
or VSQGs), the commingled waste must be handled as universal waste in
accordance with part 273. Under this final rule, handlers of universal
waste who accumulate 5,000 kilograms or more of this commingled aerosol
can waste at any time will be considered large quantity handlers of
universal waste and must meet the requirements of that category of
universal waste handler.
    Hazardous waste aerosol cans that are managed as a universal waste
under 40 CFR part 273 will not be required to be included in a
facility's determination of hazardous waste generator status (40 CFR
262.13(c)(6)). Therefore, a generator that manages such cans under the
requirements for universal waste and does not generate any other
hazardous waste will not be subject to other Subtitle C hazardous waste
management regulations, such as the hazardous waste generator
regulations in part 262. A universal waste handler that meets the
definition of a small quantity generator or large quantity generator in
40 CFR 260.10 for its other hazardous waste will be subject to the
hazardous waste generator regulations in part 262.
6. Applicability of Land Disposal Restriction Requirements
    This final rule does not change the applicability of land disposal
restriction (LDR) requirements to universal waste. Under the existing
regulations (40 CFR 268.1(f)), universal waste handlers and
transporters are exempt from the LDR requirements regarding testing,
tracking, and recordkeeping in 40 CFR 268.7, and the storage
prohibition in 40 CFR 268.50. EPA is amending 40 CFR 268.1(f) to add
aerosol can universal waste for consistency. This final rule also does
not change the regulatory status of destination facilities; they remain
subject to the full LDR requirements.

VI. Technical Corrections

    As part of this rulemaking, EPA is finalizing four technical
corrections to the universal waste standards for mercury-containing
equipment in 40

CFR 273.13(c)(2)(iii) and (iv) and 273.33(c)(2)(iii) and (iv). Each of
these paragraphs contained a reference to 40 CFR 262.34, which was
removed and reserved as part of the November 28, 2016, Hazardous Waste
Generator Improvements Rule (81 FR 85732). EPA neglected to update
these references as part of its corresponding changes in that rule and
is correcting that mistake here. In all four places, EPA proposed
revisions to make the regulations refer to 40 CFR 262.16 or 262.17, as
applicable. As a result of a comment stating that this revision did not
include references to other potentially applicable paragraphs of the
hazardous waste generator regulations in part 262, EPA has revised the
language and is finalizing language that matches references in
Sec. Sec.  273.13(a) and 273.33(a). The final language states that
mercury from broken ampules must be transferred to a container subject
to all applicable requirements of 40 CFR parts 260 through 272.

VII. State Authority

A. Applicability of Final Rule in Authorized States

    Under section 3006 of RCRA, EPA may authorize qualified states to
administer and enforce the RCRA hazardous waste program within the
state. Following authorization, EPA retains enforcement authority under
sections 3008, 3013, and 7003 of RCRA, although authorized states have
enforcement responsibility. The standards and requirements for state
authorization are found at 40 CFR part 271. Prior to enactment of the
Hazardous and Solid Waste Amendments of 1984 (HSWA), a state with final
RCRA authorization administered its hazardous waste program entirely in
lieu of EPA administering the Federal program in that state. The
Federal requirements no longer applied in the authorized state, and EPA
could not issue permits for any facilities in that state, since only
the state was authorized to issue RCRA permits. When EPA promulgated
new, more stringent Federal requirements for these pre-HSWA
regulations, the state was obligated to enact equivalent authorities
within specified time frames. However, the new Federal requirements did
not take effect in an authorized state until the state adopted the
Federal requirements as state law. In contrast, under RCRA section
3006(g) (42 U.S.C. 6926(g)), which was added by HSWA, new requirements
and prohibitions imposed under HSWA authority take effect in authorized
states at the same time that they take effect in unauthorized states.
EPA is directed by the statute to implement these requirements and
prohibitions in authorized states, including the issuance of permits,
until the state is granted authorization to do so. While states must
still adopt HSWA-related provisions as state law to retain final
authorization, EPA implements the HSWA provisions in authorized states
until the states do so.
    Authorized states are required to modify their programs only when
EPA enacts Federal requirements that are more stringent or broader in
scope than existing Federal requirements. RCRA section 3009 allows the
states to impose standards more stringent than those in the Federal
program (see also 40 CFR 271.1). Therefore, authorized states may, but
are not required to, adopt Federal regulations, both HSWA and non-HSWA,
that are considered less stringent than previous Federal regulations.

B. Effect on State Authorization

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

VIII. Statutory and Executive Order Reviews

    Additional information about these statutes and Executive orders
can be found at 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 regulatory action was determined to be not significant and was
therefore not submitted to the Office of Management and Budget (OMB)
for review. This regulatory action was determined to be not significant
for purposed E.O. 12866 review. The Office of Management and Budget
(OMB) waived review.

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

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

C. Paperwork Reduction Act (PRA)

    The information collection activities in this final rule have been
submitted for approval to the Office of Management and Budget (OMB)
under the PRA. The Information Collection Request (ICR) documents that
the EPA prepared have been assigned EPA ICR number 1597.13 and ICR
number 2513.04. You can find a copy of the ICRs in the docket for this
rule, and they are briefly summarized here.
    Because aerosol cans managed under the final rule are not counted
toward a facility's RCRA generator status, respondents will see a
reduction in burden. This reduction is because the aerosol cans will
not be subject to recordkeeping and reporting requirements as hazardous
waste, and the respondent may no longer be subject to hazardous waste
generator recordkeeping and reporting requirements, depending on the
quantity of hazardous waste they generate (that is not hazardous waste
aerosol cans or other universal wastes). The existing universal waste
requirements currently applicable to SQHUWs and LQHUWs will also be
applicable to handlers of aerosol can universal waste. For both SQHUWs
and LQHUWs, these requirements include labeling and marking, employee
training, response to releases, and export requirements. LQHUWs are
also subject to additional notification and tracking requirements. EPA
ICR number 1597.13 focuses on the increased burden to the universal
waste program resulting from new facilities becoming universal waste
handlers. EPA ICR number 2513.04 focuses on the decrease in burden
associated with this regulation.
    Respondents/affected entities: The information collection
requirements of the final rule affect facilities that handle aerosol
can universal waste and vary based on facility generator and handler
status.
    Respondent's obligation to respond: The recordkeeping and
notification requirements are required to obtain a benefit under 40 CFR
part 273.
    Estimated number of respondents: 970.
    Frequency of response: One-time notification for LQHUWs; annual

training requirements for all universal waste handlers; per-shipment
costs for labeling (all handlers) and tracking (LQHUWs).
    Total estimated burden: EPA estimates the annual burden to
respondents to be a net reduction in burden of approximately 62,621
hours. Burden is defined at 5 CFR 1320.3(b).
    Total estimated cost: The total estimated annual cost of this rule
is a cost savings of approximately $2.77 million. This cost savings is
composed of approximately $2.65 million in annualized avoided labor
costs and $23,000 in avoided capital or operation and maintenance
costs.
    An agency may not conduct or sponsor, and a person is not required
to respond to, a collection of information unless it displays a
currently valid OMB control number. The OMB control numbers for the
EPA's regulations in 40 CFR are listed in 40 CFR part 9. When OMB
approves this ICR, the Agency will announce that approval in the
Federal Register and publish a technical amendment in 40 CFR part 9 to
display the OMB control number for the approved information collection
activities contained in this final rule.

D. Regulatory Flexibility Act (RFA)

    I certify that this action will not have a significant economic
impact on a substantial number of small entities under the RFA. In
making this determination, the impact of concern is any significant
adverse economic impact on small entities. An agency may certify that a
rule will not have a significant economic impact on a substantial
number of small entities if the rule relieves regulatory burden, has no
net burden or otherwise has a positive economic effect on the small
entities subject to the rule. As documented in the Regulatory Impact
Analysis found in the docket for this final rule, EPA does not expect
the rule to result in an adverse impact to a significant number of
small entities, since the rule is expected to result in net cost
savings for all entities affected by the rule. We have therefore
concluded that this action will either relieve regulatory burden or
have no net regulatory burden for all directly regulated small
entities.

E. Unfunded Mandates Reform Act (UMRA)

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

F. Executive Order 13132: Federalism

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

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

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

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

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

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

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

J. National Technology Transfer and Advancement Act (NTTAA)

    This rulemaking does not involve technical standards.

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

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

L. Congressional Review Act (CRA)

    This action is subject to the CRA, and the EPA will submit a rule
report to each House of the Congress and to the Comptroller General of
the United States. This action is not a ``major rule'' as defined by 5
U.S.C. 804(2).

List of Subjects

40 CFR Part 260

    Environmental protection, Administrative practice and procedure,
Hazardous waste, Reporting and recordkeeping requirements.

40 CFR Part 261

    Environmental protection, Hazardous waste, Recycling, Reporting and
recordkeeping requirements.

40 CFR Part 264

    Environmental protection, Air pollution control, Hazardous waste,
Insurance, Packaging and containers, Reporting and recordkeeping
requirements, Security measures, Surety bonds.

40 CFR Part 265

    Environmental protection, Air pollution control, Hazardous waste,
Insurance, Packaging and containers, Reporting and recordkeeping
requirements, Security measures, Surety bonds, Water supply.

40 CFR Part 268

    Environmental protection, Hazardous waste, Reporting and
recordkeeping requirements.

40 CFR Part 270

    Environmental protection, Administrative practice and procedure,
Confidential business information, Hazardous materials transportation,
Hazardous waste, Reporting and recordkeeping requirements, Water
pollution control, Water supply.

40 CFR Part 273

    Environmental protection, Hazardous materials transportation,
Hazardous waste.

    Dated: November 15, 2019.
Andrew R. Wheeler,
Administrator.

    For the reasons set out in the preamble, title 40, chapter I, of
the Code of Federal Regulations, parts 260, 261, 264, 265, 268, 270,
and 273 are amended as follows:

PART 260--HAZARDOUS WASTE MANAGEMENT SYSTEM: GENERAL

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

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

Subpart B--Definitions

0
2. Section 260.10 is amended by:
0
a. Adding the definition of ``Aerosol can'' in alphabetical order;
0
b. Republishing the introductory text for the definition ``Universal
waste'' and revising paragraphs (3) and (4) and adding paragraph (5);
and
0
c. In the definition of ``Universal waste handler,'' revising paragraph
(2)(i).
    The additions and revisions read as follows:

Sec.  260.10  Definitions.

* * * * *
    Aerosol can means a non-refillable receptacle containing a gas
compressed, liquefied, or dissolved under pressure, the sole purpose of
which is to expel a liquid, paste, or powder and fitted with a self-
closing release device allowing the contents to be ejected by the gas.
* * * * *
    Universal waste means any of the following hazardous wastes that
are managed under the universal waste requirements of part 273 of this
chapter:
* * * * *
    (3) Mercury-containing equipment as described in Sec.  273.4 of
this chapter;
    (4) Lamps as described in Sec.  273.5 of this chapter; and
    (5) Aerosol cans as described in Sec.  273.6 of this chapter.
* * * * *
    Universal waste handler:
* * * * *
    (2) * * *
    (i) A person who treats (except under the provisions of 40 CFR
273.13(a) or (c), or 40 CFR 273.33(a) or (c)), disposes of, or recycles
(except under the provisions of 40 CFR 273.13(e) or 40 CFR 273.33(e))
universal waste; or
* * * * *

PART 261--IDENTIFICATION AND LISTING OF HAZARDOUS WASTE

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

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

Subpart A--General

0
4. Section 261.9 is amended by revising paragraphs (c) and (d) and
adding paragraph (e) to read as follows:

Sec.  261.9  Requirements for Universal Waste.

* * * * *
    (c) Mercury-containing equipment as described in Sec.  273.4 of
this chapter;
    (d) Lamps as described in Sec.  273.5 of this chapter; and
    (e) Aerosol cans as described in Sec.  273.6 of this chapter.

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

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

    Authority:  42 U.S.C. 6905, 6912(a), 6924, 6925, and 6939g.

Subpart A--General

0
6. Section 264.1 is amended by revising paragraphs (g)(11)(iii) and
(iv) and adding paragraph (g)(11)(v) to read as follows:

Sec.  264.1  Purpose, scope and applicability.

* * * * *
    (g) * * *
    (11) * * *
    (iii) Mercury-containing equipment as described in Sec.  273.4 of
this chapter;
    (iv) Lamps as described in Sec.  273.5 of this chapter; and
    (v) Aerosol cans as described in Sec.  273.6 of this chapter.
* * * * *

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

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

    Authority:  42 U.S.C. 6905, 6906, 6912, 6922, 6923, 6924, 6925,
6935, 6936, 6937, and 6939g.

Subpart A--General

0
8. Section 265.1 is amended by revising paragraphs (c)(14)(iii) and
(iv) and adding paragraph (c)(14)(v) to read as follows:

Sec.  265.1  Purpose, scope, and applicability.

* * * * *
    (c) * * *
    (14) * * *
    (iii) Mercury-containing equipment as described in Sec.  273.4 of
this chapter;
    (iv) Lamps as described in Sec.  273.5 of this chapter; and
    (v) Aerosol cans as described in Sec.  273.6 of this chapter.
* * * * *

PART 268--LAND DISPOSAL RESTRICTIONS

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

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

Subpart A--General

0
10. Section 268.1 is amended by revising paragraphs (f)(3) and (4) and
adding paragraph (f)(5) to read as follows:

Sec.  268.1  Purpose, scope, and applicability.

* * * * *
    (f) * * *
    (3) Mercury-containing equipment as described in Sec.  273.4 of
this chapter;
    (4) Lamps as described in Sec.  273.5 of this chapter; and
    (5) Aerosol cans as described in Sec.  273.6 of this chapter.

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

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

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

Subpart A--General Information

0
12. Section 270.1 is amended by revising the section heading and
paragraphs (c)(2)(viii)(C) and (D) and adding paragraph (c)(2)(viii)(E)
to read as follows:

Sec.  270.1  Purpose and scope of the regulations in this part.

* * * * *
    (c) * * *
    (2) * * *
    (viii) * * *
    (C) Mercury-containing equipment as described in Sec.  273.4 of
this chapter;
    (D) Lamps as described in Sec.  273.5 of this chapter; and
    (E) Aerosol cans as described in Sec.  273.6 of this chapter.
* * * * *

PART 273--STANDARDS FOR UNIVERSAL WASTE MANAGEMENT

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

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

Subpart A--General

0
14. Section 273.1 is amended by revising paragraphs (a)(3) and (4) and
adding paragraph (a)(5) to read as follows:

Sec.  273.1  Scope.

    (a) * * *
    (3) Mercury-containing equipment as described in Sec.  273.4;

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

0
15. Section 273.3 is amended by revising paragraph (b)(2) to read as
follows:

Sec.  273.3  Applicability--pesticides.

* * * * *
    (b) * * *
    (2) Pesticides not meeting the conditions set forth in paragraph
(a) of this section. These pesticides must be managed in compliance
with the hazardous waste regulations in 40 CFR parts 260 through 272,
except that aerosol cans as defined in Sec.  273.9 that contain
pesticides may be managed as aerosol can universal waste under Sec.
273.13(e) or Sec.  273.33(e);
* * * * *

0
16. Section 273.6 is added to read as follows:

Sec.  273.6  Applicability--Aerosol cans.

    (a) Aerosol cans covered under this part. The requirements of this
part apply to persons managing aerosol cans, as described in Sec.
273.9, except those listed in paragraph (b) of this section.
    (b) Aerosol cans not covered under this part. The requirements of
this part do not apply to persons managing the following types of
aerosol cans:
    (1) Aerosol cans that are not yet waste under part 261 of this
chapter. Paragraph (c) of this section describes when an aerosol can
becomes a waste;
    (2) Aerosol cans that are not hazardous waste. An aerosol can is a
hazardous waste if the aerosol can exhibits one or more of the
characteristics identified in part 261, subpart C, of this chapter or
the aerosol can contains a substance that is listed in part 261,
subpart D, of this chapter; and
    (3) Aerosol cans that meet the standard for empty containers under
Sec.  261.7 of this chapter.
    (c) Generation of waste aerosol cans. (1) A used aerosol can
becomes a waste on the date it is discarded.
    (2) An unused aerosol can becomes a waste on the date the handler
decides to discard it.

0
17. Section 273.9 is amended by:
0
a. Adding the definition of ``Aerosol can'' in alphabetical order;
0
b. Revising the definitions of ``Large Quantity Handler of Universal
Waste'' and ``Small Quantity Handler of Universal Waste'';
0
c. Revising the introductory text and paragraphs (3) and (4) and adding
paragraph (5) to the definition of ``Universal Waste'';
0
d. In the definition of ``Pesticide'':
0
i. Redesignating paragraphs (a), (b), and (c) as paragraphs (1), (2),
and (3), respectively;
0
ii. In newly redesignated paragraphs (1) and (2), removing the comma
and adding a semicolon in its place; and
0
iii. In newly redesignated paragraph (3), removing ``(a) or (b) of this
section'' and adding in its place ``(1) or (2)'' of this definition;
0
e. In the definition of ``Universal Waste Handler'':
0
i. Removing ``Waste Handler'' and adding ``waste handler'' in its
place;
0
ii. Redesignating paragraphs (a) introductory text, (a)(1) and (2), (b)
introductory text, and (b)(1) and (2) as paragraphs (1) introductory
text, (1)(i) and (ii), (2) introductory text, and (2)(i) and (ii),
respectively; and
0
iii. Revising newly redesignated paragraph (2)(i);
0
f. In the definition of ``Universal Waste Transfer Facility,'' removing
``Waste Transfer Facility'' and adding ``waste transfer facility'' in
its place; and
0
g. In the definition of ``Universal Waste Transporter,'' removing
``Waste Transporter'' and adding ``waste transporter'' in its place.
    The revisions and additions read as follows:

Sec.  273.9  Definitions.

    Aerosol can means a non-refillable receptacle containing a gas
compressed, liquefied, or dissolved under pressure, the sole purpose of
which is to expel a liquid, paste, or powder and fitted with a self-
closing release device allowing the contents to be ejected by the gas.
* * * * *
    Large quantity handler of universal waste means a universal waste
handler (as defined in this section) who accumulates 5,000 kilograms or
more total of universal waste (batteries, pesticides, mercury-
containing equipment, lamps, or aerosol cans, calculated collectively)
at any time. This designation as a large quantity handler of universal
waste is retained through the end of the calendar year in which the
5,000-kilogram limit is met or exceeded.
* * * * *
    Small quantity handler of universal waste means a universal waste
handler (as defined in this section) who does not accumulate 5,000
kilograms or more of universal waste (batteries, pesticides, mercury-
containing equipment, lamps, or aerosol cans, calculated collectively)
at any time.
* * * * *
    Universal waste means any of the following hazardous wastes that
are subject to the universal waste requirements of this part:
* * * * *
    (3) Mercury-containing equipment as described in Sec.  273.4;
    (4) Lamps as described in Sec.  273.5; and
    (5) Aerosol cans as described in Sec.  273.6.
* * * * *
    Universal waste handler:
* * * * *
    (2) * * *
    (i) A person who treats (except under the provisions of Sec.
273.13(a) or (c), or Sec.  273.33(a) or (c)), disposes of, or recycles
(except under the provisions of Sec.  273.13(e) or Sec.  273.33(e))
universal waste; or
* * * * *

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

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

Sec.  273.13  Waste management.

* * * * *
    (c) * * *
    (2) * * *
    (iii) Ensures that a mercury clean-up system is readily available
to immediately transfer any mercury resulting from spills or leaks from
broken ampules from that containment device to a container that is
subject to all applicable requirements of 40 CFR parts 260 through 272;
    (iv) Immediately transfers any mercury resulting from spills or
leaks from broken ampules from the containment device to a container
that is subject to all applicable requirements of 40 CFR parts 260
through 272;
* * * * *
    (e) Aerosol cans. A small quantity handler of universal waste must
manage universal waste aerosol cans in a way that prevents releases of
any universal waste or component of a universal waste to the
environment, as follows:
    (1) Universal waste aerosol cans must be accumulated in a container
that is structurally sound, compatible with the contents of the aerosol
cans, lacks evidence of leakage, spillage, or damage that could cause
leakage under reasonably foreseeable conditions, and is protected from
sources of heat.
    (2) Universal waste aerosol cans that show evidence of leakage must
be packaged in a separate closed container or overpacked with
absorbents, or immediately punctured and drained in accordance with the
requirements of paragraph (e)(4) of this section.

    (3) A small quantity handler of universal waste may conduct the
following activities as long as each individual aerosol can is not
breached and remains intact:
    (i) Sorting aerosol cans by type;
    (ii) Mixing intact cans in one container; and
    (iii) Removing actuators to reduce the risk of accidental release;
and
    (4) A small quantity handler of universal waste who punctures and
drains their aerosol cans must recycle the empty punctured aerosol cans
and meet the following requirements while puncturing and draining
universal waste aerosol cans:
    (i) Conduct puncturing and draining activities using a device
specifically designed to safely puncture aerosol cans and effectively
contain the residual contents and any emissions thereof.
    (ii) Establish and follow a written procedure detailing how to
safely puncture and drain the universal waste aerosol can (including
proper assembly, operation and maintenance of the unit, segregation of
incompatible wastes, and proper waste management practices to prevent
fires or releases); maintain a copy of the manufacturer's specification
and instruction on site; and ensure employees operating the device are
trained in the proper procedures.
    (iii) Ensure that puncturing of the can is done in a manner
designed to prevent fires and to prevent the release of any component
of universal waste to the environment. This manner includes, but is not
limited to, locating the equipment on a solid, flat surface in a well-
ventilated area.
    (iv) Immediately transfer the contents from the waste aerosol can
or puncturing device, if applicable, to a container or tank that meets
the applicable requirements of 40 CFR 262.14, 262.15, 262.16, or
262.17.
    (v) Conduct a hazardous waste determination on the contents of the
emptied aerosol can per 40 CFR 262.11. Any hazardous waste generated as
a result of puncturing and draining the aerosol can is subject to all
applicable requirements of 40 CFR parts 260 through 272. The handler is
considered the generator of the hazardous waste and is subject to 40
CFR part 262.
    (vi) If the contents are determined to be nonhazardous, the handler
may manage the waste in any way that is in compliance with applicable
Federal, state, or local solid waste regulations.
    (vii) A written procedure must be in place in the event of a spill
or leak and a spill clean-up kit must be provided. All spills or leaks
of the contents of the aerosol cans must be cleaned up promptly.

0
19. Section 273.14 is amended by adding paragraph (f) to read as
follows:

Sec.  273.14  Labeling/marking.

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

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

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

Sec.  273.32  Notification.

* * * * *
    (b) * * *
    (4) A list of all the types of universal waste managed by the
handler (e.g., batteries, pesticides, mercury-containing equipment,
lamps, and aerosol cans); and
* * * * *

0
21. Section 273.33 is amended by revising paragraphs (c)(2)(iii) and
(iv) and adding paragraph (e) to read as follows:

Sec.  273.33  Waste management.

* * * * *
    (c) * * *
    (2) * * *
    (iii) Ensures that a mercury clean-up system is readily available
to immediately transfer any mercury resulting from spills or leaks of
broken ampules from that containment device to a container that is
subject to all applicable requirements of 40 CFR parts 260 through 272;
    (iv) Immediately transfers any mercury resulting from spills or
leaks from broken ampules from the containment device to a container is
subject to all applicable requirements of 40 CFR parts 260 through 272;
* * * * *
    (e) Aerosol cans. A large quantity handler of universal waste must
manage universal waste aerosol cans in a way that prevents releases of
any universal waste or component of a universal waste to the
environment, as follows:
    (1) Universal waste aerosol cans must be accumulated in a container
that is structurally sound, compatible with the contents of the aerosol
cans, lacks evidence of leakage, spillage, or damage that could cause
leakage under reasonably foreseeable conditions, and is protected from
sources of heat.
    (2) Universal waste aerosol cans that show evidence of leakage must
be packaged in a separate closed container or overpacked with
absorbents, or immediately punctured and drained in accordance with the
requirements of paragraph (e)(4) of this section.
    (3) A large quantity handler of universal waste may conduct the
following activities as long as each individual aerosol can is not
breached and remains intact:
    (i) Sorting aerosol cans by type;
    (ii) Mixing intact cans in one container; and
    (iii) Removing actuators to reduce the risk of accidental release;
and
    (4) A large quantity handler of universal waste who punctures and
drains their aerosol cans must recycle the empty punctured aerosol cans
and meet the following requirements while puncturing and draining
universal waste aerosol cans:
    (i) Conduct puncturing and draining activities using a device
specifically designed to safely puncture aerosol cans and effectively
contain the residual contents and any emissions thereof.
    (ii) Establish and follow a written procedure detailing how to
safely puncture and drain the universal waste aerosol can (including
proper assembly, operation and maintenance of the unit, segregation of
incompatible wastes, and proper waste management practices to prevent
fires or releases); maintain a copy of the manufacturer's specification
and instruction on site; and ensure employees operating the device are
trained in the proper procedures.
    (iii) Ensure that puncturing of the can is done in a manner
designed to prevent fires and to prevent the release of any component
of universal waste to the environment. This includes, but is not
limited to, locating the equipment on a solid, flat surface in a well
ventilated area.
    (iv) Immediately transfer the contents from the waste aerosol can
or puncturing device, if applicable, to a container or tank that meets
the applicable requirements of 40 CFR 262.14, 262.15, 262.16, or Sec.
262.17.
    (v) Conduct a hazardous waste determination on the contents of the