Yesterday, U.S. EPA announced a new Resource Conservation and Recovery Act (RCRA) retail strategy. This strategy has been long-awaited, given that it has been well over two years since the retail industry commented on EPA’s February 14, 2014 Notice of Data Availability for the Retail Sector (20 Fed. Reg. 8926). After last year’s release of the proposed Hazardous Waste Generator Improvements Rule and Management Standards for Hazardous Waste Pharmaceuticals rule, the industry was unclear whether and to what degree EPA would turn back to a potential sector-specific rulemaking. Yesterday’s release of EPA’s retail strategy, however, confirms that EPA intends to use policy, guidance and rulemaking to fashion a remedy.
In his blog post, Assistant EPA Administrator Mathy Stanislaus acknowledges that the current RCRA requirements were drafted for industrial and manufacturing settings, but nonetheless equally apply to non-household facilities, “including some facilities that may surprise people.” Stanislaus stated: “I’m excited to announce that we are unveiling a cohesive strategy to address these unique issues and to ensure that retail stores comply with hazardous waste regulations.” EPA notes in the retail strategy document that the strategy takes into account the feedback that EPA received in response to the February 14, 2014 NODA and “EPA’s considerable engagement with the retail sector and regulators,” presumably in part from continued discussions with the retail sector in response to both the proposed Generator Improvements Rule and Pharmaceuticals rule.
A couple items of interest for retailers include that EPA states that it “has been exploring” the potential for adding certain retail items, such as aerosol cans and electronics, to the federal universal waste regulations. EPA also highlights the practice of “reverse distribution,” noting that the current regulations are not always the best fit, particularly “as relates to when discard occurs or is intended to occur and the timing of waste determinations.” EPA points out that “EPA intends to develop a policy that addresses the reverse distribution process for the retail sector as a whole.” EPA clarifies that where the term “reverse distribution” is used, EPA intends that the term apply to all retail items, including those usually referenced under the process of “reverse logistics.” The retail strategy does not specify whether prescription, over-the-counter pharmaceuticals, supplements, and/or nicotine replacement therapy products (gum, lozenges, and patches) will be addressed through rulemaking, policy, or guidance, issues of particular importance and concern for retail pharmacies.
As mentioned in our July 29, 2016 blog post, and as confirmed in the retail strategy, U.S. EPA intends to finalize the Hazardous Waste Generator Improvements Rule this fall. However, although EPA highlights certain components of the proposed Pharmaceuticals rule in the retail strategy, EPA gives no reference to a date for the final rule. EPA does note that “EPA is currently focusing the Agency’s near-term efforts on finalizing the Pharmaceuticals and Generator Improvements rules.” As we previously reported, however, we do not expect that EPA will finalize the Pharmaceuticals rule during the Obama administration. Given yesterday’s release of this new retail strategy, it appears that EPA is moving forward with the Hazardous Waste Generator Improvements Rule before offering significant relief for the issues that unwittingly make many retailers Large Quantity and Small Quantity Generators of hazardous waste.