January 17, 2017

EPA Releases RCRA Compliance Strategy for Retailers

On September 12, 2016, EPA released its Strategy for Addressing the Retail Sector under RCRA’s Regulatory Framework. First and foremost, the agency recognizes that the RCRA regulations, which were developed primarily for manufacturing settings, “are not necessarily the best fit for the retail sector.” Comments received in response to EPA’s February 14, 2014 Notice of Data Availability for the Retail Sector [79 FR 8926] indicate that the following primary issues cause problems with RCRA compliance in this sector:

• A large number of stores in many locations handle a very large number of diverse consumer goods that could become hazardous waste upon discard.
• These consumer goods are generally manufactured by someone else, making hazardous waste determinations difficult.
• Hazardous waste generation is unpredictable due to episodic generation (e.g., recalls and customer returns).
• Hazardous waste training at the store level is difficult due to high employee turnover.
• A reverse distribution process is often used to manage unsalable products, including those that become hazardous waste when discarded. It is difficult to determine where in this process a solid and potentially hazardous waste is generated.

EPA’s generator improvements rule, finalized November 28, 2016 [81 FR 85732], addressed a couple of these issues relevant to the retail sector. This rule:

• Provides flexibility for episodic generators of hazardous waste, and
• Allows consolidation of very small quantity generator hazardous waste at associated large quantity generator facilities.

The agency’s pharmaceuticals rule, proposed September 25, 2015 [80 FR 58014], would also address some RCRA concerns for these materials in the retail sector, but that rule is not scheduled to be finalized until December 2017.

In addition to these two rulemakings, EPA is undertaking three other activities that will address RCRA concerns in the retail sector. The agency plans to:

1. Issue a guide to recycling aerosol cans under the existing Subtitle C regulations;
2. Propose the addition of aerosol cans, other types of pesticides, and/or electronics to the federal universal waste rules; and
3. Develop a policy that addresses the reverse distribution process for the retail sector, particularly as it relates to when discard occurs or is intended to occur and the timing of required waste determinations.

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This document addresses issues of a general nature related to the federal RCRA regulations. Persons evaluating specific circumstances dealing with the RCRA regulations should review state and local laws and regulations, which may be more stringent than federal requirements. In addition, the assistance of a qualified professional should be enlisted to address any site-specific circumstances.