Why it matters

In part due to a string of high-profile enforcements in multiple states, retailers by and large have evaluated the need to implement hazardous waste management regimes and, where necessary, have implemented sophisticated hazardous waste training and environmental management programs to ensure compliance with federal and state hazardous waste laws. In the game of regulatory whack-a-mole, however, retailers must keep one eye looking forward to emerging areas of regulatory focus while simultaneously keeping one eye looking back to ensure continuing compliance in existing areas of regulatory focus. Indeed, while regulatory attention has been focused on hazardous waste management for some time, retailers should be aware that some states are beginning to turn their attention to the management—specifically, recycling—of non-hazardous waste items such as cardboard, paper, glass, plastic, and metal.

Detailed discussion

Several states—including California, Connecticut, Massachusetts, New Jersey, North Carolina, Pennsylvania, and Wisconsin, among others—maintain some sort of mandatory non-hazardous waste recycling requirement.

California's mandatory commercial recycling law is implemented largely by local governments and requires businesses—including retailers—that generate four or more cubic yards of solid waste (including plastic, glass, cardboard, and metal) per week to recycle such waste. Compliance with California's law can be accomplished by self-hauling or arranging for the pickup of such materials by a third party. Likewise, Connecticut's mandatory recycling law requires businesses and individuals to recycle bottles, cans, newspaper, and cardboard. In New Jersey, no fewer than 35 different categories of materials are subject to mandatory recycling by commercial entities—including retailers—on a county-by-county basis. There is significant variability among counties. For example, while every county requires mandatory recycling of corrugated cardboard and glass containers, most (but not all) counties require recycling of plastic and mixed paper, one county requires recycling of polystyrene, and one county requires recycling of food waste.

In addition to the states mentioned above, we are aware of mandatory non-hazardous waste recycling requirements in the District of Columbia, Maine, Pennsylvania, Rhode Island, Wisconsin, and certain municipalities in Massachusetts, New Hampshire, New York, Vermont, and West Virginia.

As mentioned above, various states, including California and Connecticut, are currently engaged in environmental enforcement initiatives targeting retailers and are raising questions regarding those companies' recycling program compliance. Connecticut regulators, for example, are identifying and enforcing violations of both hazardous waste management and non-hazardous waste recycling requirements as part of waste enforcement inspections.

To ensure compliance with these requirements, retailers should ensure that all locations in jurisdictions with mandatory recycling requirements are implementing an appropriate non-hazardous waste recycling program. Such a program should include, at a minimum, display materials identifying the types of materials that must be recycled and containers for the collection of such wastes (either as "single source" or separated streams, as appropriate). Retailers may also consider preparing and implementing brief written non-hazardous waste recycling training materials, as well as maintaining metrics of recycled waste volumes to demonstrate compliance with the recycling requirements.