Our retail clients with stores and warehouse facilities in the State of New York are warned that the State of New York Department of Environmental Conservation (NYDEC) has announced that it will begin enforcing regulations relating to hazardous waste against big boxes, supermarkets, pharmacies and other retailers which generate waste materials containing chemicals which are commonplace in household products, such as those in detergents, cosmetics, air fresheners, bug spray, and prescription and over-the-counter pharmaceuticals.
By hazardous waste regulations we mean those in New York set forth in Title 6, Chapter IV, Subpart B, Parts 370-372, which follow closely the federal Resource Conservation and Recovery Act (RCRA). In this article “RCRA” is used to denote both the New York and federal rules.
The upcoming enforcement initiative, which will include planned and unplanned inspections by NYDEC, formal Requests for Information, and other traditional state enforcement strategies, is very similar to the one waged against retailers in California over the past several years. (See related Seyfarth discussion in Retail Detail: New Rules Affecting Retail and Transportation Industry Reverse Logistics). California’s retail waste enforcement effort has led to significant penalties for retailers in California also imposing upon retailers the costs of developing and implementing technologies, systems, and processes to manage retail hazardous waste. The success (in terms of penalties) of the California enforcement initiative and the expected level of enforcement and penalties of the New York initiative is largely due to retailers’ failure to understand, and adhere to, hazardous waste regulations applicable to retail wastes.
The challenges of RCRA compliance for retailers often arise not from management of traditional maintenance wastes at stores and warehouses, but out of mismanagement of returned, damaged, out-of-date, and off-spec products and pharmaceuticals; retailers traditionally have failed to handle such products as “wastes” or “hazardous waste.” Retailers are just becoming aware that their wastes are subject to the same rules as, and must be managed in the same manner as waste at industrial facilities. Compliance for retailers is complicated by the fact that in addition to wastes generated at “big box” retailers, retail wastes are generated at thousands of small facilities, in small amounts, and must be managed by (occasionally seasonal) retail employees with little-to-no-training or experience in the management of hazardous waste. Additionally, retail wastes are generally managed in limited spaces in stores, and stores can have hundreds if not thousands of different products that can be potentially considered waste or hazardous waste. Finally, the costs of managing retail wastes (including transportation and disposal costs) are significant relative to the small volumes of waste generated in individual store locations.
Facilities that have long relied on “reverse logistics” for handling retail products that are out of date, damaged, recycled, donated or otherwise managed in the reversal logistics process will find that, as in California, such historical practice may not been seen by NYDEC as meeting RCRA requirements. While New York laws do not prohibit the use of reverse logistics (and NYDEC actually has on-line guidance about reverse logistics), NYDEC believes many retailers are not in compliance with RCRA requirements that apply to reverse logistics. Thus, retail facilities may have to make significant changes in their policies and processes for handling hazardous retail wastes that have previously been handled in the reverse logistics process.
Warned of the impending enforcement, retailers in the State of New York have an opportunity now to ensure their retail waste compliance program meets state and federal laws, and to avert or mitigate enforcement actions relating to improperly managing retail wastes. Under the NYDEP formal “Environmental Audit Incentive Policy” (CP-59), retail facilities who suspect they do not meet RCRA requirements can enter into an agreement with NYDEC to undertake audits to determine compliance, and thereafter to voluntary disclose, and correct non-compliance discovered in the audits. In return, the facilities who undertake the audits and correct deficiencies can significantly reduce penalties to TDEC, and are allowed to develop a strategy to achieve compliance in a reasonable period of time in the future. Retail facilities who do not want to take advantage of the voluntary audit/disclosure program should immediately ensure their programs for managing retail hazardous wastes meet all of the notification, labeling, segregating, containment, transport, manifesting, employee training, contingency planning and recordkeeping and reporting requirements applicable to retail wastes under RCRA. Retailers who have facilities in California, and therefore already have experience in developing RCRA compliance programs for retail wastes, should consider expeditiously implementing those programs in their retail facilities in New York.
To assist retailers in meeting retail waste requirements, NYDEC has developed several guidance documents, in the form of “plan outlines” and “checklists,” which detail the steps necessary for retailers and pharmacies to comply with RCRA. Such guidance includes:
- Facility compliance plans;
- Facility employee training plans;
- Guidance on management of universal waste; and
- Use of reverse distribution with reverse logistics.
The NYDEC guidance is available on the NYDEC website, where NYDEC has also posted copies of briefings it conducted in 2014 for retailers warning of the enforcement initiative. The briefings are entitled “Briefing on RCRA and Pharmacies” (November 10, 2014) and “Briefing and Panel Discussions on RCRA Pharmacies and DEC’s Art Policy” (December 18, 2014).
We strongly encourage our retailers in New York to take the enforcement initiative seriously, and to promptly ensure retail facilities are handling retail hazardous waste in compliance with federal and state laws. Facilities who suspect they are not handling retail wastes in full compliance with laws should carefully consider availing themselves of the voluntary audit/disclosure process, and seek legal advice if assistance is needed in the process. In the event a facility has already received a notice of inspection, or worse, an enforcement notice, we recommend you discuss this with your Seyfarth Shaw attorney and/or another attorney promptly.