RCRA Application to Retail Operations & NYS Department of Environmental Conservations Role

November 14, 2014


Recently the Department of Environmental Conservation (Department) convened a meeting of numerous interested parties to discuss retailers, including pharmacies, and their obligations and requirements related to the management of materials considered to be hazardous on disposal. During the meeting the Department indicated that they will be issuing hazardous waste guidance for retailers in the next month. Additionally, the Department discussed a forth coming letter to retailers to provide them a specific window to come into compliance with the rules and regulations governing hazardous waste handling and disposal requirements or be subject to enforcement.


In the past few years a number of national retail chains and operators have been the subject of hazardous waste enforcement actions. Violations have typically been associated with the handling of returned, unsold, and off-specification products. More recent violations have focused on the proper handling of pharmaceutical waste.

The Resource Conservation and Recovery Act (RCRA) 42 U.S.C. §6901 et seq was enacted in 1976, with initial implementing regulations promulgated in 1980. This act, which regulates land-based disposal of hazardous waste, has the goal of reducing waste and encouraging recycling. RCRA enforcement was initially targeted at waste haulers, and the industrial sector.

Given the advanced acceptance of RCRA by the initially beset industry sectors compliance has become institutionalized and predicable.  In 2008, the EPA reviewed the application of RCRA to retail establishments. EPA has stated “the retail sector handles a large number of diverse products many of which may potentially become regulated as hazardous waste under RCRA when discarded. Thus, retailers are required to make numerous hazardous waste determinations at thousands of sites, generally by store employees with limited experience with the RCRA hazardous waste regulations. Additionally, the retail sector often uses “reverse distribution” in their business processes, where non-damaged products from retail stores are routinely shipped back to consolidation centers. However, how reverse distribution processes are regulated, or should be regulated under RCRA has resulted in a number of questions.”

Furthermore President Obama’s Executive Order 13563 "Improving Regulation and Regulatory Review" required all agencies review regulations to determine whether any should be modified, streamlined, expanded or repealed to make regulatory oversight more efficient, as a result EPA prioritized its effort to analyze information on hazardous waste in the retail sector. Last spring EPA heard from numerous experts throughout retail on how hazardous waste generated at retail locations is currently categorized, stored, handled and disposed, and is scheduled to provide additional guidance to the sector.

Application of RCRA

For many the application of RCRA may seem counter intuitive. Rules or regulations that require typically discarded household items (such as products commonly found in household medicine cabinets and laundry rooms) may be subject to regulation under hazardous waste laws when discarded by retailers. Specific products sold by retailers that are considered by state and federal regulating agencies to be hazardous include nail polish, hair spray, pest control, mouthwash, household cleaners, and light bulbs, among many others.

Hazardous Waste Identification
The hazardous waste identification (HWID) process is the crucial first step in the hazardous waste management system. Correctly determining whether a waste meets the RCRA definition of hazardous waste is essential to determining how the waste must be managed. The waste generator has responsibility for determining if a waste is a RCRA hazardous waste. The four HW Characteristics (40 CFR Sections 261.21-261) include:

EPA has developed the Definition of Solid Waste Decision Tool v2 which is an interactive decision support tool designed to follow a series of decisions that a typical user might make when determining whether a material meets the definition of solid waste for purposes of being a hazardous waste (see 40 CFR 261.1(b)).

The Florida Department of Environmental Protection has developed a list of pharmaceuticals that are potentially hazardous waste when discarded. Potential hazardous waste pharmaceuticals include prescription drugs, chemotherapy agents, controlled substances or over the counter items that are expired, damaged or otherwise not usable for their intended purpose.

Category of Hazardous Waste Generator
Once a determination that a facility is handling a hazardous waste then a determination regarding the applicable category ofhazardous waste generator has to occur. A hazardous waste generator is any person or site whose processes and actions create hazardous waste (see 40 CFR 260.10). Generators are divided into three categories based upon the quantity of waste they produce:

Each class of generator must comply with its own set of requirements. For more information these requirements, please see the Generator Summary Chart.

Meeting of the Department

On Monday November 10th the Department convened a meeting of numerous interested parties to discuss retailers, including pharmacies, and their obligations and requirements related to the management of materials considered to be hazardous on disposal. During the course of the meeting the Department encouraged retailers to come into compliance through the utilization of Commissioner Policy 59/ Environmental Audit Incentive Policy.

Robert Schick Division of Environmental Remediation Director provided an overview of the application of RCRA requirements on hazardous waste generators. Mr. Schick indicated that the Department is looking to get all businesses into compliance. Specifically sometime around the first of the year they will contact individual members of the industry to make them aware that retailers can either come into compliance possible utilizing an environmental audit or be subject to enforcement action.

Furthermore, the department committed to publishing a document to outline the responsibilities of retailers. The intent will be to provide a document which is consistent with Federal and New York State requirements. The Department has stated goal of issuing the guidance before the end of the month. Additionally, they will be looking to EPA to issue regulations in December that will allow pharmaceuticals to be treated like universal waste.

Other States have developed less enforcement driven approaches including the Connecticut Department of Energy and Environmental Protection (DEEP) which has established a Pharmaceutical Universal Waste Stakeholders Group comprised of professionals with broad pharmaceutical expertise to assist in the development of the regulations to allow hazardous pharmaceutical wastes to be managed as a Connecticut universal waste.

Environmental Audit Incentive Policy

In the fall of 2013, the Department issued an Environmental Incentive Policy. The policy was intended to encourage compliance with environmental laws, as well as advance the use of environmental management systems and pollution prevention, by reducing or waiving civil penalties for eligible violations discovered by a regulated entity through an environmental audit, compliance assistance or pollution prevention.

The Policy supplements the penalty adjustment provisions of the Civil Penalty Policy and Enforcement Guidance Memoranda Series, and formalizes the Department's practice of exercising its prosecutorial discretion for all regulatory and natural resource programs, as appropriate, by eliminating or mitigating the payable civil penalty that may otherwise be imposed for certain types of violations.

The Policy applies to any entity, private or public, including a Federal, State or municipal agency, regulated under New York State environmental laws and regulations. Most regulated entities are eligible for the policy although the policy states the following:
“the Department shall exclude regulated entities that, within the past 5 years:

  1. received a Notice of Violation, Environmental Conservation Appearance Ticket, Notice of Hearing and Complaint, an administrative or judicial order or was subject to a penalty demand; and
  2. were uncooperative in remedying past violations. The term "uncooperative" includes, but is not limited to, such conduct as failing to respond to Department correspondence (e.g. Environmental Conservation Appearance Ticket, Notice of Hearing and Complaint), or failing to take good faith steps to remedy violations within time frames prescribed by law and as may be directed by the Department in an administrative order. In such situations, the Department may use the traditional enforcement process to solicit environmental audits.”

The Business Council worked closely with the DEC and a broad segment of stakeholders including businesses, environmental organizations, and municipalities in the formulation of the policy. Although the Business Council has expressed concern that active participation in the DEC Environmental Audit Incentive Policy has been repressed because regulated entities are concerned about future EPA enforce action.

EPA Region 2 has in the past administered the successful Facility Audit Agreement Program; presumably EPA would be interested in being an active partner to a well thought-out program. The Business Council has strongly encouraged the DEC and EPA Region 2 to establish a memorandum of agreement regarding disclosure of possible violations.