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
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
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