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Retail and Consumer Product Hazardous Waste – Update on Reverse Distribution and Aerosol Cans by EPA

On September 12, 2016, EPA issued its “Strategy for Addressing the Retail Sector under RCRA’s Regulatory Framework.” The strategy document sets forth three actions the agency is expected to finalize in the short-term to help ease the RCRA burden on managing retail and consumer products that may trigger RCRA hazardous waste characteristics or RCRA listings once a decision to discard is made.

EPA’s pronouncement stems from comments received by a variety of stakeholders in response to the agency’s 2014 Notice of Data Availability requesting comments concerning RCRA’s applicability to the Retail Sector. In particular, retailers, logistics providers, transporters, distribution centers, warehousing, and product manufacturers, may find themselves subject to the stringent RCRA hazardous waste requirements for relatively benign household consumer goods and products such as aerosol cans (D001 ignitability), cleaners (D002 corrosivity), pesticides, electronics, batteries, and the like.

While the EPA’s primary current focus is to finalize the Pharmaceuticals and Generator Improvements rules, the latter to be finalized in coming months, the agency identifies the following three activities it plans to implement soon:

  • Proposed Rule for Aerosol Cans as Universal Waste – EPA states that it believes aerosol cans “are likely to be good candidates for management under federal universal waste regulations . . . [and] is moving forward with plans to develop a proposed rule to address aerosol cans as universal waste.
  • Guide to Recycling Aerosol Cans – The agency is preparing a guidance document intending to assist generators and recyclers with the recycling of this waste stream.
  • Policy on Reverse Distribution – Recognizing the challenges affiliated with the timing on when decisions to discard occur and waste determinations, the agency is working on a policy to address the flow of consumer goods, including unused, off-spec, outdated/expired, seasonal, returned, damaged, recalled, and overstocked items.

The agency’s efforts, of course, come on the heels of significant enforcement by EPA and state regulators targeting warehousing, distribution, and retail centers with RCRA violations for improper disposal of consumer and household products (see related publications in connection with this posting). According to a September 13 blog article written by EPA Assistant Administrator Mathy Stanislaus promoting the agency’s strategy, EPA welcomes comments and feedback from stakeholders.

This post was drafted by Andrew Brought, an attorney in the Kansas City, MO office of Spencer Fane LLP. For more information, visit spencerfane.com.