Seyfarth Synopsis: EPA publishes new Retail Strategy in an attempt to address the unique challenges the retail sector faces in complying with RCRA’s hazardous waste regulations.

The regulation of hazardous waste in stores, warehouses and during reverse logistics processes in the retail sector has been fraught with difficulty for the retail industry, in large part due to competing, and inconsistent rules by state and local governments. and California. The U.S. Environmental Protection Agency (EPA) has indicated it is looking to balance its goals of minimizing impacts to the environment, without undue regulatory burdens on an industry that does not have significant experience in the morass of RCRA requirements.

We have previously blogged extensively on this topic, encouraging the guidance now being considered by EPA : “DOT Publishes Final Rule on “Safe Reverse Logistics” for Retail “Returns” of Hazardous Materials to Distribution Centers,” “OSHA Enforcement Memo and Interim Policy on the Process Safety Management Retail Exemption,” “EPA Rulemaking on Hazardous Waste Management in the Retail Sector, and “Warning! Retailers’ Environmental Enforcement Initiative in New York”.

According to EPA, it’s Strategy for Addressing the Retail Sector under RCRA’s Regulatory Framework is a “next step” in EPA’s goal to increase clarity for retailers on how retail hazardous wastes should be handled. EPA notes that its ongoing outreach efforts, combined with the comments received it received on the February 2014 Notice of Data Availability (NODA) for the Retail Sector (79 Fed. Reg. 8926), have “improved the Agency’s understanding of the challenges arising when managing unused/intact consumer goods that have become unsalable at retail stores and are moving through the reverse distribution system.”

EPA’s going-forward Strategy uses a three-pronged approach:

  1. Issue Agency policy, guidance and rulemaking to ensure a better fit between RCRA regulations and the retail sector.
  2. Research retail hazardous waste management practices and related issues in the area of reverse distribution, universal waste and other challenges.
  3. Using the results of that evaluation and research, identify additional approaches to address outstanding RCRA retail sector issues if needed.

In the near term, EPA intends to focus its efforts on finalizing the related Pharmaceuticals and Generator Improvements rules, which only tangentially address retail hazardous waste. Over the longer term, EPA intends to more directly address the retail sector’s concerns by:

  1. Issuing a guide to recycling aerosol cans, which EPA found make up the largest percentage of retail hazardous wastes (35%);
  2. Proposing rules to add aerosol cans, pesticides, an/or electronics to the federal universal waste rules, allowing for simplified disposal; and
  3. Developing a policy that directly addresses the reverse distribution process for the retail sector as a whole.

In an attempt to show that it has not simply been sitting around over the 2+ years since the NODA and the highly publicized state enforcement cases against retailers, EPA has provided a diagram showing the flow of retail items and relationships among various organizations that manage consumer goods and wastes based on the research it has completed so far.