The U.S. Environmental Protection Agency (“EPA”) is pursuing plans to address the unique challenges faced by retailers in complying with the waste handling regulations of the Resource Conservation and Recovery Act (“RCRA”). In particular, retailers must make hazardous waste determinations for a diverse and ever-changing lineup of products, and the “reverse distribution” process raises a number of compliance questions exclusive to the retail industry. 聽The agency鈥檚 initiative has been in the works for a number of years (since 2008), but gained renewed momentum when EPA released its Strategy for Addressing the Retail Sector under RCRA鈥檚 Regulatory Framework1 last Fall. 聽Given the goal of reducing regulatory burdens, implementation of the Strategy is expected to continue with the incoming Trump Administration.
Challenges in Addressing the Retail Sector
RCRA and its implementing regulations were developed primarily with the industrial sector in mind. 聽However, retailers manage a large number and variety of products that become regulated as hazardous waste under RCRA when they are 鈥渄iscarded.鈥� 聽Examples include pharmaceuticals and non-prescription drugs, aerosol cans, products containing nicotine, cleaners and solvents, pesticides, and electronics.
Particular aspects of the retail sector make compliance with RCRA regulations difficult, including, for example, determining when certain handling practices do or do not qualify as 鈥渄iscard鈥� or 鈥渨aste management.鈥� 聽The reverse distribution process, often used to handle unwanted or returned goods, is commonly cited as an area in need of regulatory clarification. 聽Further, retail industry waste is generated at episodic and unpredictable rates, and the point at which products are disposed of and the best way to make a hazardous waste determination is often unclear. 聽EPA is seeking to amend the RCRA regulations in order to better take into account these issues.
Over the past few years, EPA has pursued RCRA enforcement actions against several major retailers. 聽For example, in 2013, Wal-Mart settled with EPA for allegedly failing to manage properly hazardous wastes at retail locations, including products that were damaged or returned.2 聽Walmart paid a $7.6 million civil penalty and agreed to implement operational changes to ensure compliance with RCRA and avoid sending hazardous waste to reverse distribution centers. 聽More recently, in 2016, EPA settled alleged violations of hazardous waste regulations by Whole Foods for $3.5 million.3 聽EPA found that Whole Foods had not properly made hazardous waste determinations at its facilities and was improperly handling spent lamps. 聽As part of its settlement, Whole Foods is engaging in a Supplemental Environmental Protect to educate smaller retailers about hazardous waste laws and the importance of maintaining compliance. 聽States have also brought enforcement actions against retailers under their own hazardous waste laws, collecting millions of dollars in penalties.
EPA鈥檚 Strategy for Addressing the Retail Sector
EPA鈥檚 strategy to rework RCRA policy for the retail sector has three prongs: (1) issuing new guidance, policies, and rules that improve the fit between RCRA regulations and the retail sector; (2) learning more about hazardous waste management practices and reverse distribution in the retail sector; and (3) identifying additional approaches to address outstanding retail sector issues as needed. 聽EPA鈥檚 start in this process was issuing a Notice of Data Availability in 2014 to identify the principal issues in the retail sector; EPA then began planning the policy changes that it is instituting in response.
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