The EPA 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 rule specific requirements for management of aerosol cans that are punctured and drained by the universal waste handler address the ignitability risk and are designed to help prevent releases. According to the EPA, the specific aerosol can universal waste management standards address the risks posed by hazardous waste aerosol cans.
6. Regulation of the waste or category of waste will increase the likelihood that the waste will be diverted from non-hazardous waste management systems (e.g., the municipal waste stream, non-hazardous industrial or commercial waste stream, municipal sewer or stormwater systems) to recycling, treatment or disposal in compliance with ch. 291, Stats., and chs. NR 660 to 670, Wis. Adm. Code. 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 this waste 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, it will be more economical to send hazardous waste aerosol cans for recovery and recycling of metal. This rule will 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 universal waste regulations make aerosol can collection programs more economical, hazardous waste aerosol cans that might otherwise be sent to a municipal landfill under a Very Small Quantity Generator or household hazardous waste exemption will be more easily collected and consolidated for hazardous waste disposal. 7. Regulation of the waste or category of waste under this chapter will improve implementation of and compliance with the hazardous waste regulatory program. The addition of aerosol cans as universal waste 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 hazardous waste requirements but who generate hazardous waste aerosol cans, will be able to easily send this waste for proper management.
8. Other factors as may be appropriate. The 8 factors are designed to determine whether regulating a particular hazardous waste under the streamlined requirements for universal waste would improve the overall management of the waste. The EPA considered states’ experience of already managing aerosol cans under state universal waste programs. Five states had adopted aerosol cans into their universal waste programs when the EPA was determining if aerosol cans should be added as a federal universal waste. Those states’ experiences with management of aerosol cans under their universal waste programs provided a useful source of information to inform the EPA’s judgment on whether to add aerosol cans to the national universal waste program. Information supplied to the EPA from officials in those five states indicated that their addition of aerosol cans as universal waste improved the implementation of the hazardous waste program. According to the EPA, state officials from both California and Colorado stated that their aerosol can universal waste programs had been in effect since 2002 and they had not identified any problems with enforcing compliance with the standards. This information weighed in favor of concluding that management of aerosol cans under the federal universal waste regulations would likely be successful.
Adding aerosol cans to the universal waste program in Wisconsin 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, easing regulatory burdens, promoting the collection and recycling of these cans, and encouraging the development of municipal and commercial programs to reduce the quantity of these wastes going to municipal solid waste landfills or combustors. (EPA Checklist 242).
Additionally, clarifications to universal waste destination facility language are intended to help these facilities achieve compliance with both hazardous waste and universal waste requirements. The proposed language will align Wisconsin with federal requirements relating to when a RCRA hazardous waste license is required. For example, federal regulations specify that waste stored prior to recycling is subject to a storage license. This language in Wisconsin code will help ensure clarity and compliance with this requirement.
6. Summary of, and Comparison with, Existing or Proposed Federal Statutes and Regulations: The rule revisions incorporate federal RCRA universal waste regulations as promulgated on December 9, 2019, and adopted by the EPA effective February 7, 2020, and clarify language in the current rule regarding the requirements for destination facilities.
If adopted, the new rules will include the addition of aerosol cans as a universal waste in Wisconsin, which will be equivalent to federal regulations. The federal rule is optional for states to adopt but provides alternate methods for managing a hazardous waste stream to improve recycling options and minimize disposal. The streamlined universal waste regulations are expected to ease regulatory burdens on facilities that generate hazardous waste aerosol cans. To the extent possible, the department proposes to adopt the content and format of the federal regulations, to ensure equivalency.
7. If Held, Summary of Comments Received During Preliminary Comment Period
_Hlk115175411and at Public Hearing on the Statement of Scope: The department held an online preliminary public hearing on the statement of scope on October 6, 2022, at 2:00 p.m. Ninety-six people registered for the hearing and 73 members of the public attended the hearing. There were no comments in support or opposition.
_Hlk53440138. Comparison with Similar Rules in Adjacent States: Minnesota, Illinois, and Michigan have state-managed hazardous waste programs. In that capacity, these states have promulgated these rules and are seeking authorization for these regulations as part of their EPA-authorized program. The status of this process in each state is found below.
Summary of neighboring states |
USEPA Universal Waste Regulations: Addition of Aerosol Cans Promulgated December 9, 2019. Checklist 242 |
State: | Iowa | Illinois | Michigan | Minnesota |
Status of equivalent rules | Adopted1 | Authorized2 | Adopted | Authorized | Adopted | Authorized | Adopted | Authorized |
| Iowa does not have a state program. USEPA Region 7 administers and enforces RCRA hazardous waste regulations. | Aerosol can regulations are equivalent to federal regulations; established under 35 Ill. Adm. Code 733.106, September 3, 2020. | Aerosol can regulations are both more stringent and broader in scope than the federal rule; established under R. 299.9228, Michigan Code, August 3, 2020. | Aerosol can regulations are identical to federal regulations; established prospectively under Minn. R. 7045.1400, Subp. 1, 2005. |
1Adopted = promulgated and effective at the state level
2Authorized = rules adopted by the state have been authorized by USEPA
9. Summary of Factual Data and Analytical Methodologies Used and How Any Related Findings Support the Regulatory Approach Chosen: The proposed rules will maintain consistency with federal rules and help ensure continued authorization of the state RCRA program by the EPA. Currently 33 states have adopted aerosol cans as a universal waste. If Wisconsin adds aerosol cans as a universal waste, this will ease regulatory requirements and provide consistency for businesses that send these waste streams to other states for recycling, management, or disposal. The department received positive feedback from businesses interested in adding aerosol cans as a universal waste stream as part of the development of this rule.
_Hlk148432056Clarifications to destination facility requirements will align with language in the Federal Register (84 FR 67202), making it easier for facilities to understand and comply with the requirements. There will be no substantive change to the existing regulations. 10. Analysis and Supporting Documents Used to Determine the Effect on Small Business or in Preparation of an Economic Impact Report: The determination that these rules will have little or no impact on small businesses was reached through analysis of the reports created by the EPA during the promulgation process at the federal level, and the evaluation of impacted state entities and business sectors. Each federal revision contains an economic impact assessment, fiscal estimate, and language discussing which sectors, businesses, and entities will be affected by the change. This information was published in the Federal Register (84 FR 67202). While small businesses in Wisconsin will be subject to the universal waste requirements, if they elect to manage their eligible hazardous waste under the universal waste regulations this rule is considered a relaxation and clarification, and as such the rule will have little to no adverse economic impacts on such businesses.
Since this rule is a flexibility in the regulations, small businesses will have the option to follow the universal waste requirements instead of the more stringent hazardous waste regulations. As this universal waste stream is typically recycled, the cost of the disposal of hazardous waste will be eliminated or reduced.
11. Effect on Small Business (final regulatory flexibility analysis): Promulgation of these rules will result in little to no costs to small business. Federal rules require an economic impact analysis for promulgation, and without exception these changes were deemed by federal analysis as not expected 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.” Furthermore, the addition of aerosol cans as a universal waste is a relaxation of existing rules and as such will result in either direct (decreased regulatory costs) or indirect (administrative time savings) cost savings for businesses and entities in affected business sectors.
The proposed rule will provide flexibilities to requirements for the management and disposal of waste aerosol cans that are used in a variety of small businesses, including retailers, auto body and repair shops, gas stations, printers, and grocery stores. The proposed revision is intended to provide entities with the option to decrease the level of management, documentation, evaluation, transport, recycling, and disposal costs associated with management of this waste stream.
The effect of these proposed rules will be minimal and may be advantageous to small business, as they are primarily paperwork reductions, clarifications, and relaxations of existing rules. Additionally, the proposed regulations do not alter fee schedules in such a way that there would be any negative effect on the small business community of Wisconsin.
12. Agency Contact Person: Cathy Baerwald, Department of Natural Resources, Southeastern Region Headquarters, 1027 W. St. Paul Ave., Milwaukee, WI 53233-2641; Catherine.Baerwald@wisconsin.gov; (414) 333-6805 13. Place where comments are to be submitted and deadline for submission:
A public comment period on the draft rule occurred from April 15, 2024 to May 15, 2024, and a public hearing was held on May 8, 2024.
RULE TEXT
NR 660.10 (3o) “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.
2Section 2 NR 660.10 (133) (c) is amended to read: NR 660.10 (133) (c) Thermostats and mercury-containing Mercury-containing equipment as described in s. NR 673.04. 3Section 3 NR 660.10 (133) (e) is created to read: 4Section 4 NR 660.10 (134) (b) 1. is amended to read: OLE_LINK1NR 661.0009 Requirements for universal waste, universal waste handlers, and universal waste transporters. Except as specified in ch. NR 673, the wastes listed in this section are exempt from regulation under chs. NR 662 to 667 and 670 and ss. NR 668.07 and 668.50 and, therefore, are not fully regulated as hazardous waste. The if a person chooses to manage the hazardous wastes listed in this section as universal wastes, all of the following are subject to regulation under ch. NR 673 and are exempt from regulation under chs. NR 662 to 667 and 670 and ss. NR 668.07 and 668.50: 6Section 6 NR 661.0009 (5) is created to read: NR 661.0009 (5) Aerosol cans as described in s. NR 673.06. _Hlk138672673Section 7 NR 664.0001 (7) (k) 3. is amended to read: NR 664.0001 (7) (k) 3. Thermostats and mercury-containing Mercury-containing equipment as described in s. NR 673.04. _Hlk138672858Section 8 NR 664.0001 (7) (k) 5. is created to read: NR 664.0001 (7) (k) 5. Aerosol cans as described in s. NR 673.06. _Hlk138673112Section 9 NR 665.0001 (3) (n) 3. is amended to read: NR 665.0001 (3) (n) 3. Thermostats and mercury-containing Mercury-containing equipment as described in s. NR 673.04. _Hlk138673233Section 10 NR 665.0001 (3) (n) 5. is created to read: NR 665.0001 (3) (n) 5. Aerosol cans as described in s. NR 673.06. 11Section 11 NR 668.01 (6) (e) is created to read: NR 668.01 (6) (e) Aerosol cans as described in s. NR 673.06. _Hlk138674218Section 12 NR 670.001 (3) (b) 8. e. is created to read: NR 670.001 (3) (b) 8. e. Aerosol cans as described in s. NR 673.06. 13Section 13 NR 673.01 (1) (c) is amended to read: NR 673.01 (1) (c) Thermostats and mercury-containing Mercury-containing equipment as described in s. NR 673.04. _Hlk138682833Section 14 NR 673.01 (1) (e) and (3) are created to read: NR 673.01(1) (e) Aerosol cans as described in s. NR 673.06. (3) This chapter is not applicable to universal wastes that are abandoned or illegally or improperly disposed.
15Section 15 NR 673.03 (2) (b) is amended to read: _Hlk143505615NR 673.03 (2) (b) Pesticides not meeting the conditions set forth in sub. (1). These pesticides shall be managed in compliance with the hazardous waste rules in chs. NR 660 to 670, except that aerosol cans as defined in s. NR 673.09 that contain pesticides may be managed as aerosol can universal waste under s. NR 673.13 (5) or 673.33 (5). 16Section 16 NR 673.06 is created to read: NR 673.06 Applicability—Aerosol cans. (1) Aerosol cans covered under this chapter. The requirements of this chapter apply to any person managing aerosol cans as described in s. NR 673.09, except those listed under sub. (2).
