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
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. 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. These standards include requirements for outer packaging, can design, and general pressure conditions. 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 specific requirements for management of aerosol cans that are punctured and drained at the 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 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, 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 VSQG 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. 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 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 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 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. Additionally, this rule includes clarifications to the requirements for universal waste destination facilities. (EPA Checklist 242).
In addition to adding aerosol cans to Wisconsin’s Universal Waste program, the proposed rule includes clarifying language on the management of intentionally broken or crushed lamps, including the management of hazardous waste residues. This language is aligned with federal requirements and is anticipated to be little to no impact on affected entities.
This rule will also clarify and provide consistency in requirements for universal waste receiving and recycling facilities.
6. Summary of, and Comparison with, Existing or Proposed Federal Statutes and Regulations: The rule revisions incorporate new RCRA universal waste regulations as promulgated on December 9, 2019, and adopted by EPA effective February 7, 2020, and clarify language to the current rule regarding the intentional crushing of universal waste lamps and the requirements for destination facilities.
The new rules will include the addition of aerosol cans as a universal waste in Wisconsin, which will be equivalent to federal regulations. This federal rule is optional for states to adopt but provides alternate methods for managing a hazardous waste stream by recycling instead of 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 intends to adopt the content and format of the federal regulations, to ensure equivalency.
7. If Held, Summary of Comments Received During Preliminary Comment Period
and 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.
8. Comparison with Similar Rules in Adjacent States: Minnesota, Illinois, and Michigan have state-managed hazardous waste programs. In that capacity, these states are working to promulgate these rules and include 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 comments from businesses interested in adding aerosol cans as a universal waste stream as part of the development of this rule.
Clarifications to destination facility requirements and universal waste lamp language 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 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, when they elect to manage their eligible hazardous waste under the universal waste regulations, this rule is considered a relaxation and clarification, and as such 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 universal waste is recycled, the cost of the disposal of hazardous waste will be eliminated or reduced.
11. Effect on Small Business (initial 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:
Written comments may be submitted at the public hearings, by regular mail, or email to:
Cathy Baerwald
Department of Natural Resources
Southeastern Region Headquarters
1027 W. St. Paul Ave.
Milwaukee, WI 53233-2641
(414) 333-6805
Comments may be submitted to the department contact person listed above or to DNRAdministrativeRulesComments@wisconsin.gov until the deadline given in the upcoming notice of public hearing. The notice of public hearing and deadline for submitting comments will be published in the Wisconsin Administrative Register and on the department’s website, at https://dnr.wi.gov/calendar/hearings/. Comments may also be submitted through the Wisconsin Administrative Rules Website at https://docs.legis.wisconsin.gov/code/chr/active. RULE TEXT
Section 1 NR 660.10 (3o) is created to read:
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.
Section 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. Section 3 NR 660.10 (133) (e) is created to read:
NR 660.10 (133) (e) Aerosol cans as described in s. NR 673.06. Section 4 NR 660.10 (134) (b) 1. is amended to read:
NR 660.10 (134) (b) 1. A person who treats (universal waste, except under the provisions of s. NR 673.13 (1) or (3) or 673.33 (1) or (3)), or disposes of or recycles universal waste, except under s. NR 673.13 (5) or s. 673.33 (5). Section 5 NR 661.0009 (intro.) and (4) are amended to read:
NR 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 wastes are subject to regulation under ch. NR 673 and are exempt from regulation under chs. NR 662 to 667 and 670 and ss. 668.07 and 668.50: (4) Lamps as described in s. NR 673.05, except lamps that are intentionally broken or crushed. A facility at which universal waste lamps are intentionally broken or crushed by a person who did not generate the universal waste lamp is a destination facility subject to subch E. A universal waste generator that intentionally breaks or crushes its own universal waste lamps shall do all of the following: Section 6 NR 661.0009 (4) (a), (b), (c), (Note 2) and (5) are created to read:
NR 661.0009 (4) (a) Conduct the breaking and crushing activities using a device that effectively contains the treatment residual contents and any emissions thereof.
(b) Prevent releases to the environment from the residual contents and any emissions thereof.
(c) Conduct a hazardous waste determination on the contents of the broken and crushed universal waste lamps, the filter from the device, and any other residues generated from the breaking and crushing of universal waste lamps as provided under s. NR 662.011. Any hazardous waste generated from the breaking and crushing of the universal waste lamps is subject to all applicable requirements of chs. NR 660 to 670. Note: While the breaking and crushing of the universal waste lamps is permissible when done in compliance with chs. NR 660 to 670, the department strongly discourages those activities, as the inhalation of mercury vapor is a significant health risk. (5) Aerosol cans as described in s. NR 673.06. Section 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. Section 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.
