By Jeryl L. Olson and Craig B. Simonsen

The U.S. Environmental Protection Agency (EPA) yesterday released a Notice of Data Availability for “Hazardous Waste Management in the Retail Sector.” 79 Fed. Reg. 8926 (February 14, 2014).

An impetus for the Notice was President Obama’s Executive Order 13563, Improving Regulation and Regulatory Review, “which charges federal agencies to monitor regulatory effectiveness and to help make agency regulatory programs more effective or less burdensome in achieving the regulatory objectives.” EPA notes that it is responding to issues the retail industry has identified in implementing hazardous waste regulations.

For instance Seyfarth is representing several retail companies in a highly visible enforcement initiative by the District Attorney’s office in California against retail grocery chains and drugstore chains with respect to generation and handling of out-of-date products, over-the-counter-drugs, damaged and returned merchandise, and reverse logistics. This is, we believe, in part responsible for the retail industry’s request for guidance from EPA.

The Notice provides stakeholders the opportunity to help inform the Agency to better understanding retail based operations and to “identify options for possible further action.” Specifically, the Agency is seeking comment on the retail industry and on the amounts of hazardous wastes it generates. EPA is also seeking suggestions for improving hazardous waste regulations for retail operations. The Notice solicits hazardous waste information on the following:

  • Episodic generation
  • Retails stores’ programs for handling hazardous waste
  • Hazardous waste training for employees
  • Aerosol cans
  • Transportation and reverse logistics
  • Reverse logistics centers
  • Sustainability efforts undertaken by retail facilities

Retailers are encouraged to actively watch and participate in the rulemaking (Docket ID No. EPA-HQ-RCRA-2012-0426), as any resulting rules may end up being very expensive and difficult to implement.

Written comments on the Notice are due on April 15, 2014.