On October 25, 2017, the EPA announced that it had reached a settlement with Macy’s Retail Holding, Inc. (Macy’s) in connection with alleged violations of RCRA associated with retail goods and items that were improperly disposed of at department store locations. Under the settlement with EPA, Macy’s agrees to correct the violations, develop a training program for its retailers, conduct third-party audits of eleven of its largest facilities, pay $375,000 in civil penalties, and comply with other requirements within one year.
Since at least June 2012, product distribution, logistics, transportation, wholesale, big box retail, food service and refrigeration, pharmaceutical, and related warehousing operations became United States Environmental Protection Agency (“EPA) enforcement targets for such businesses’ role in accumulating or disposing waste from household and consumer chemical products. One such big box retailer, Macy’s, found itself in the EPA’s crosshairs for its RCRA violations for, as EPA stated, failure to notify EPA and state authorities of its generation of approximately 269,168 pounds of hazardous waste across forty-four locations from 2012 to 2015. This level of generation qualified Macy’s as a small quantity generator under RCRA, prompting specific statutory obligations that Macy’s failed to meet. Macy’s further failed to meet certain conditions and to provide certain manifests required of a small quantity generator.
Under RCRA, small quantity generators are those who generate more than 100 kilograms but less than 1,000 kilograms (about 220 to 2,200 pounds) of hazardous waste per month. An entity will qualify as a small quantity generator regardless of the nature of its business so long as it meets this threshold and is not otherwise exempted. Products that may be deemed regulated hazardous wastes include household and consumer chemical products with a characteristic nature for ignitibility or corrosivity such as kitchen and bathroom cleaners, pesticides, paints, batteries, pool cleaner, medicines and pharmaceuticals, and aerosol disinfectants.
Macy’s is merely one of a number of product distribution, logistics, transportation, wholesale, big box retail, food service/refrigeration, pharmaceutical, and related warehousing operations that have been subject to enforcement by the EPA and state regulators. See Improper Disposal of Consumer Products by Retailer Leads to $82 Million Criminal and Civil Penalty for RCRA, FIFRA, CWA Violations; see also EPA to Re-evaluate Regulation of Disposed Consumer and Retail Products as Hazardous Waste Under RCRA. Notably, this new enforcement case may signal a new emphasis on state and federal agency focus on RCRA compliance with department stores, similar to the prior enforcement of national retailers, consumer goods, home construction, pharmacy stores, and electronic goods.
This post was drafted by Ryan Pulkrabek, an attorney in the Kansas City, MO office of Spencer Fane LLP. For more information, visit spencerfane.com.