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EPA to Re-evaluate Regulation of Disposed Consumer and Retail Products as Hazardous Waste Under RCRA

In March 2013, EPA will begin the process for evaluating whether to clarify and make the RCRA hazardous waste regulations more effective for managing waste retail products. According to EPA’s notice, “Retailers face uncertainty in managing the wide range of retail products that may become wastes if unsold, returned, or removed from shelves for inventory changes. Because of the wide range of products that can become waste, retailers find it difficult to comply with the RCRA hazardous waste regulations that were designed for manufacturing and other types of industry wastes.”

A variety of household and consumer chemical products, such as kitchen and bathroom cleaners, pesticides, paints, batteries, pool cleaner, medicines and pharmaceuticals, aerosol disinfectants and the like may actually be regulated “hazardous wastes” after a decision is made to discard them because of their characteristic nature for ignitibility (D001) or corrosivity (D002, i.e., a low or high pH). And although these products seem relatively benign – in the sense that we encounter them in our daily lives and they are routinely used in our homes and businesses – a number of companies have faced significant civil, and in some cases criminal, penalties for improper management and disposal of such products.

Indeed, a number of product distribution, logistics, transportation, wholesale, big box retail, food service/refrigeration, pharmaceutical, and related warehousing operations have been subject to enforcement by EPA and state regulators. The State of Connecticut announced on January 28, 2013, an $800,000 settlement with a national retail drugstore chain associated with disposal of consumer products and pharmaceuticals. And California has had a string of similar multi-million dollar enforcement actions for well-known retail chains regarding disposal of waste retail products. Other agencies, such as DOT, have focused on reverse logistics of HazMat retail and consumer products.

Environmental regulators have increased their focus on these businesses because they handle household and consumer chemical products, particularly returned, damaged, off-spec, and obsolete products. Combine this mix of factors with the fact that companies frequently rely upon offsite locations, contractors, third-party vendors, and temporary staff to manage these operations – where the lines of responsibility and authority may not always be clear – and this creates a scenario ripe for confusion and enforcement.

In addition to product management, retail stores and warehouses may have other environmental, safety, and health issues that are easy to overlook: refrigerant and cooling system leaks, used oil/fluids and batteries from forklifts, spent fluorescent bulbs, and stormwater and wastewater discharges to sanitary sewers.

The regulatory focus on these waste retail products is part of a larger national focus on warehousing and consumer and retail products enforcement that members of Spencer Fane’s Environmental Practice Group presented as part of a national webinar entitled “EPA’s Warehouse and Consumer Products Enforcement Initiative.” An audio recording of the presentation and copies of the handouts may be downloaded here.