When most people think of businesses that handle hazardous waste, they think of manufacturing and other industrial companies. The classic image is the storage of 55 gallon drums marked with placards indicating the contents are hazardous.
In the last two years and unlikely sector has found themselves the focus hazardous waste enforcement and regulatory development- retails stores. National awareness occurred in 2013 when Walmart announced a settlement with EPA to resolve violations of the Resource Conservation and Recovery Act (RCRA), the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA), and the Clean Water Act (CWA) . The violations were related to the handling of returned, unsold, and off-specification products. Walmart agreed to pay $7.628 million in civil penalties and pled guilty and agreed to pay $81.6 million in three federal criminal cases. Walmart entered into a Consent Agreement and Final Order (CAFO) with EPA, under which Walmart agreed to implement various measures to ensure future compliance.
While the Walmart settlement was the largest, EPA and State EPA's have been very active in taking enforcement against retailers. Actions include:
- Walgreen Co., $16.6 Million (2012)
- Costco Warehouse, $3.6 Million (2012);
- CVS Pharmacy, $800,000 (CT, 2013) and $13.75 Million (CA, 2012
- Target Corp., $22.5 Million (2011);
- Home Depot, $425,000 (2006) and $10 Million (2007).
When Does RCRA Become an Issue for Retailers?
Products are not regulated as a hazardous waste. However, if a product is returned by a customer or the store takes the product off the shelf due to damage or for some other reason, the product can become a hazardous waste if it meets certain characteristics.
At issue for retailers are paints, aerosol cans, bleach, polishes, and other chemical products that could be considered reactive, ignitable, corrosive or toxic. When those products are returned by customers or if they are removed from the store, the retailer must evaluate whether the product has become a hazardous waste and should be managed as such.
Waste can be generated at the retail store level through customer returns, household hazardous waste events, product recalls, damaged product containers or packaging, off specification product, unauthorized dumping, customer spills, and change out of inventory by the store.
Large retailers also use reverse logistics systems to consolidate products that may be returned or removed from retail stores. These products are sent to consolidation centers where decisions can be made regarding whether the product can still be sold, returned to the vendor, donated, recycled or discarded.
Is a removed/returned product a "waste" when it leaves the retail store or when the decision is made it is to be discarded at the consolidation center? That is one of many critical open issues facing retailers.
If a product is a hazardous waste, then it must be stored, managed, transported and disposed properly. In addition, RCRA's "cradle to grave" regulatory scheme requires maintenance of required paperwork to verify any hazardous waste was managed properly.
EPA Collects Information Regarding Hazardous Waste Requirements for Retailers
On February 14, 2014, EPA released a Notice of Data Availability (NODA) in order to "collect information towards improving hazardous waste requirements for the retail sector." In the NODA EPA sums up the challenge facing retailers- "Retailers are required to make numerous hazardous waste determinations at thousands of sites, generally by store employees with limited experience with the RCRA hazardous waste regulations."
Some national retailers (Walmart and Home Depot) already submitted comments to EPA. Some of the issues/concerns raised by these retailers include:
- Waste characterization at the retail store level by employees with little training or understanding of the regulations;
- Generation of waste at the store level that can force stores to fluctuate between Conditionally Exempts Small Quantity Generator to Large Quantity Generator status under RCRA (different regulations apply depending on the store's classification);
- The lack of applicability of the Household Hazardous Waste Exemption which allows customers to dispose of the same products in the trash as EPA requires retailers to manage as a hazardous waste;
- Argue for the application of Universal Waste classification which would make it much easier for retailers to manage products; and
- Application of RCRA regulations to central processing centers utilized by retailers;
- Regulation of empty prescription bottles;
- Ambiguous regulations of electronic waste.
Retailers identify legitimate issues with application of RCRA to their stores. In reality, RCRA was designed to regulate generate hazardous waste from industrial operations, not consumer stores.
How EPA decides to move forward to develop sensible regulations will be very interesting to watch. However, in the meantime, retail stores must be aware there is not "timeout" while EPA figures this out. No better evidences exists than the multi-million dollar enforcement cases against large retailers.
(Photo: courtesy Flickr Catawba County)