On September 12, 2016, EPA unveiled its Strategy for Addressing the Retail Sector under RCRA’s Regulatory Framework (“Strategy”).  This Strategy reaffirms EPA’s continued focus on retailers’ compliance with RCRA, but also indicates that the Agency is working to make needed modifications to a regulatory regime that was originally developed for the industrial and manufacturing sectors.  Underlying the Strategy are three main objectives:

  • issuing agency policy, guidance and rulemaking to ensure a better fit between RCRA regulations and the retail sector;
  • researching retail hazardous waste management practices and related issues in the area of reverse distribution, universal waste and other challenges; and
  • identifying additional approaches to address outstanding RCRA retail sector issues based on the results of agency evaluation and research.

The Strategy builds on a number of prior regulatory initiatives dating back to 2008 when EPA first began a review of how RCRA hazardous waste regulations applied to the retail sector.  EPA subsequently published a Notice of Data Availability (“NODA”) in 2014, seeking public comment on a number of issues related to the applicability of RCRA to retailers.  In conjunction with EPA’s request for stakeholder input, there also have been several sizeable RCRA enforcement actions against large retailers in recent years, including the Wal-Mart’s $81 million settlement with EPA, California and Missouri in 2013 arising out of the Company’s handling of returned, unsold, and off-specification products and EPA’s newly-announced $3.5 million settlement with Whole Foods for mismanagement of consumer goods including nail polish remover, hand sanitizer and vitamins.

According to Assistant EPA Administrator, Mathy Stanislaus, the Strategy involves the following next steps:

  • issuing the final hazardous waste generator rule in Fall 2016;
  • working on finalizing the RCRA pharmaceuticals rule;
  • issuing a guide on recycling aerosol cans;
  • proposing a universal waste rule for aerosol cans; and
  • issuing a policy on reverse distribution and RCRA.

While not specific to the retail sector, the hazardous waste generator rule, which is currently pending before the White House Office of Management and Budget, is expected to provide some clarity and flexibility to the RCRA hazardous waste regulations that will benefit all regulated entities including retailers.  However, the proposed rule received varied reactions from both industry and the retail industry.

The draft RCRA pharmaceuticals rule is intended to specifically respond to a number of retailers’ concerns and provide a tailored set of management standards specifically designed to reduce the complexity and regulatory burden of RCRA for the management of hazardous waste pharmaceuticals by health care facilities.  It, too, has received a mixed response with many commenters taking issue with EPA’s underlying presumption that pharmaceuticals are wastes when handled in reverse distribution/logistics systems.

In addition to focusing on rulemakings that are already in progress, EPA is proposing in this Strategy to develop guidance on aerosol can recycling, as well as a new rulemaking to apply the more streamlined universal waste regulations to aerosol cans.  The Strategy also calls for EPA to consider whether to extend the universal waste rules to other consumer goods, including electronics and certain pesticides.

Finally, a formal Agency policy is expected regarding the reverse distribution process for the retail sector, which has been an area of notable regulatory uncertainty and inconsistency.  EPA maintains in the Strategy that it will consider (a) the “scope of the retail universe,” including for example family-owned stores, (b) the positions of EPA regions and state regulators, (c) the extent of compliance issues identified by retail sector inspections, (d) the extent to which the reverse distribution process results in proper management of unsaleable consumer goods originating from retail stores.

More is clearly to come in this area of RCRA regulation of retail waste.  While EPA appears to be working to identifying stakeholder issues and concerns, these efforts should be closely monitored to ensure that the complexities unique to the retail sector are appropriately considered and reflected in forthcoming guidance, policies and rulemakings.


Jessica Wicha is a counsel in the Firm’s North American Environmental Practice Group. Her practice covers the spectrum of environmental legal matters, including regulatory compliance counseling, enforcement defense, and environmental aspects of complex business transactions. She strives to provide practical solutions to her client's environmental legal challenges, including day-to-day compliance issues, remediation matters, emergency spills and releases, and regulatory enforcement. Ms. Wicha also has extensive experience advising on environmental transactional matters across a wide range of industry sectors and global jurisdictions. This work includes scoping and coordinating environmental due diligence, managing environmental consultants, advising clients on environmental liability and risk allocation issues and tools, drafting and negotiating environmental contractual language, and coordinating permit transfers.