By Jeryl L. Olson, Ilana R. Morady, and Craig B. Simonsen

Seyfarth Synopsis: EPA announces its proposal to streamline the regulation of hazardous waste aerosol cans by adding them to the list of materials that can be managed under the Universal Waste management system.

The U.S. Environmental Protection Agency has issued a proposed rule that is intended to simplify the regulation of hazardous waste aerosol cans by adding them to the list of materials that can be managed under the Universal Waste management system under 40 CFR Part 273.  83 Fed. Reg. 11654 (March 16, 2018).  Some states, including California, Colorado, Minnesota, New Mexico, Texas, and Utah have already added aerosol cans to their Universal Waste lists. Adding aerosol cans to the list of Universal Wastes would ease the RCRA burden on generators in the two top economic sectors with the largest percentage of potentially affected entities, the retail trade industry and manufacturing.

Currently the U.S. EPA regulates nonempty aerosol cans as RCRA hazardous wastes in the same manner as other hazardous wastes; that is, hazardous waste aerosol cans are basically subject to the same requirements as drums of hazardous waste, including limitations on accumulation time  and volume, manifesting, disposal requirements, employee training, and response to releases.  That is, aerosol cans are regulated as hazardous waste when discarded, because propellant in the cans is flammable (i.e., a characteristic hazardous waste) and/or the contents of the cans contain P- or U- listed chemicals regulated as hazardous wastes. Aerosol cans can be excluded from the definition of hazardous waste, but only if they meet certain strict requirements.

Hazardous waste batteries, certain hazardous waste pesticides, mercury-containing equipment, and hazardous waste mercury lamps are already regulated as Universal Wastes. In general, materials managed as universal waste can be stored for 1 year or longer, and do not require a manifest when shipped, provided they are properly labeled, packaged and stored. Universal wastes also do not need to be counted toward a hazardous waste generator’s inventory for the purpose of determining whether the generator is classified as a very small quantity generator, small quantity generator, or large quantity generator.

While the rule is expected to be relief to the regulated community, the proposed rule raises nearly as many questions as it answers.  For instance, under the proposed rule, an aerosol can is defined as “an intact container in which gas under pressure is used to aerate and dispense any material through a valve in the form of a spray or foam.” It remains to be seen, therefore, whether this proposed definition would include items such as cans that dispense product without aerating (e.g. shaving gel).  Importantly, the proposed rule also creates uncertainty about when an aerosol can is “intact” or is “empty.”  This is a key issue because aerosol cans meeting the definition of “empty” are to be excluded from the Universal Waste rule, and the cans themselves would not be hazardous if recycled.

Currently, punctured, empty aerosol cans that are recycled are exempt from RCRA regulation if the puncturing is performed as part of a recycling process, and many companies have invested in can puncturing equipment to render aerosol cans “RCRA-empty” and thus, the cans (not the “drained contents”) are considered exempt from hazardous waste rules.  As suggested above, however, in the future, where puncturing and draining would render cans empty, they would not be subject to Universal Waste rules.  The issue of whether “puncturing” by the generator (versus the waste handler) is hazardous waste treatment can vary from state to state, and the proposed rule does not provide clarity for generators.

We will continue to monitor development of the proposed rule.

For more information on this or any related topic please contact the authors, your Seyfarth attorney, or any member of the Seyfarth Environmental Compliance, Enforcement & Permitting Team.

By Brent I. ClarkJames L. Curtis, Ilana R. MoradyPatrick D. JoyceAdam R. Young, and Daniel Birnbaum

Seyfarth Synopsis:  Here is today’s update from the presentations and room discussions at the ABA Occupational Safety and Health Law Committee’s 2018 Midwinter Meeting.

We continue to attend the ABA Occupational Safety and Health Law Meeting this week in Santa Monica, California.

A hot topic, discussed at today’s meeting, is sexual harassment in the workplace.  Panelists are discussing whether sexual harassment could constitute a serious workplace safety and health issue.  Studies show that pervasive harassment may manifest in physical symptoms in victimized employees.  The question becomes, when does sexual harassment evolve into workplace violence that presents OSHA liability?  There are currently no specific OSHA standards that address workplace violence or sexual harassment.  However, under the General Duty Clause of the Occupational Safety and Health Act, employers are required to provide their employees with a place of employment that is “free from recognized hazards that are causing or are likely to cause death or serious harm.”  As such, sexual harassment is on OSHA’s radar, and as more employees step forward, it is anticipated that more inspections will be opened from complaints.

The panel discussed specific industries, including healthcare, social services, hospitality, late night retail, construction, agriculture, and food processing, as those where sexual harassment as a workplace violence issue are statistically more likely.  OSHA will likely focus on these industries in evaluating future sexual harassment inspections.  As an example, the panel referenced a case in Region 3, where an inspection was opened when a pediatric services employee was sexually assaulted by a client’s father after complaints were made to the employer by other employees about the alleged abuser.  Companies should evaluate complaints and determine if sexual harassment in the workplace is foreseeable or preventable.

The panel also talked about efforts by local cities and industries that have made proactive steps to protect employees from sexual harassment.  As an example, Seattle, New York, and Chicago have all taken steps to provide hotel workers with “panic buttons” to help prevent attacks by hotel guests.  It is anticipated that these regulations will spread across the country, and span new industries as well.  Employers should stay aware of the newest regulations and industry practices to reduce the risk that employees will be harmed or that an OSHA inspection will be opened.

More to come from the conference tomorrow.…

For more information on this or any related topic please contact the authors, your Seyfarth attorney, or any member of Seyfarth’s OSHA Compliance, Enforcement & Litigation Team.

By Jeryl L. Olson, Patrick D. Joyce, and Craig B. Simonsen

bottleSeyfarth Synopsis: EPA publishes new Retail Strategy in an attempt to address the unique challenges the retail sector faces in complying with RCRA’s hazardous waste regulations.

The regulation of hazardous waste in stores, warehouses and during reverse logistics processes in the retail sector has been fraught with difficulty for the retail industry, in large part due to competing, and inconsistent rules by state and local governments. and California. The U.S. Environmental Protection Agency (EPA) has indicated it is looking to balance its goals of minimizing impacts to the environment, without undue regulatory burdens on an industry that does not have significant experience in the morass of RCRA requirements.

We have previously blogged extensively on this topic, encouraging the guidance now being considered by EPA : “DOT Publishes Final Rule on “Safe Reverse Logistics” for Retail “Returns” of Hazardous Materials to Distribution Centers,” “OSHA Enforcement Memo and Interim Policy on the Process Safety Management Retail Exemption,” “EPA Rulemaking on Hazardous Waste Management in the Retail Sector, and “Warning! Retailers’ Environmental Enforcement Initiative in New York”.

According to EPA, it’s Strategy for Addressing the Retail Sector under RCRA’s Regulatory Framework is a “next step” in EPA’s goal to increase clarity for retailers on how retail hazardous wastes should be handled. EPA notes that its ongoing outreach efforts, combined with the comments received it received on the February 2014 Notice of Data Availability (NODA) for the Retail Sector (79 Fed. Reg. 8926), have “improved the Agency’s understanding of the challenges arising when managing unused/intact consumer goods that have become unsalable at retail stores and are moving through the reverse distribution system.”

EPA’s going-forward Strategy uses a three-pronged approach:

  1. Issue Agency policy, guidance and rulemaking to ensure a better fit between RCRA regulations and the retail sector.
  2. Research retail hazardous waste management practices and related issues in the area of reverse distribution, universal waste and other challenges.
  3. Using the results of that evaluation and research, identify additional approaches to address outstanding RCRA retail sector issues if needed.

In the near term, EPA intends to focus its efforts on finalizing the related Pharmaceuticals and Generator Improvements rules, which only tangentially address retail hazardous waste. Over the longer term, EPA intends to more directly address the retail sector’s concerns by:

  1. Issuing a guide to recycling aerosol cans, which EPA found make up the largest percentage of retail hazardous wastes (35%);
  2. Proposing rules to add aerosol cans, pesticides, an/or electronics to the federal universal waste rules, allowing for simplified disposal; and
  3. Developing a policy that directly addresses the reverse distribution process for the retail sector as a whole.

In an attempt to show that it has not simply been sitting around over the 2+ years since the NODA and the highly publicized state enforcement cases against retailers, EPA has provided a diagram showing the flow of retail items and relationships among various organizations that manage consumer goods and wastes based on the research it has completed so far.

For more information on this or any related topic please contact the authors, your Seyfarth attorney, or any member of the Seyfarth Environmental Compliance, Enforcement & Permitting Team.

By Jay W. Connolly and Aaron Belzer

bottleSeyfarth Synopsis: New California regulations provide more specific guidance on the content of Prop 65 “safe harbor” warnings, and on the corresponding methods for providing such warnings.

Come August 30, 2018, consumer products to be released into the California marketplace must meet new regulations under California’s infamous Proposition 65. On August 30, 2016, the California Office of Administrative Law approved the adoption of new regulations for clear and reasonable warnings under Proposition 65.

Proposition 65, known as the Safe Drinking Water and Toxic Enforcement Act of 1986, requires businesses with 10 or more employees to give “clear and reasonable” warnings to California consumers before knowingly and intentionally exposing them to known carcinogens or reproductive toxins (“Listed Chemical”). Proposition 65 requires the Governor of California to publish and periodically update a list of known carcinogens and reproductive toxins. To date, almost 1,000 substances appear on this list.

Under the existing regulations, a warning is “clear’ if it effectively communicates that the Listed Chemical in question is known to the State of California to cause cancer and/or birth defects or other reproductive harm. It is “reasonable” if the method used by a business to transmit the warning is reasonably calculated to make the warning message available to the individual before exposure (for a consumer product, before purchase). The existing regulations provide “safe harbor” guidance regarding types of warning methods and general warning language for various exposures that are deemed “clear and reasonable” under Proposition 65.

The new regulations provide more specific guidance on the content of these “safe harbor” warnings, and on the corresponding methods for providing such warnings. Notably, the new regulations require the warnings to provide more detailed information to the public, including: (a) a clear statement that a person “can be exposed” to a Listed Chemical (rather than just a statement that a product or area “contains” a Listed Chemical); (b) the names of one or more Listed Chemicals that are the subject of the warning; and (c) a link to a website maintained by the California Office of Environmental Health Hazard Assessment (“OEHHA”) containing supplemental information. The new regulations also establish safe harbor warning methods for internet and catalog sales, requiring that businesses provide the warning on the webpage or in the catalog, as well as on the product. The new regulations may also require businesses to provide the warning in both English and in one or more foreign languages. For example, for consumer product exposures, a business must provide the warning both in English and in any other language used on a product’s sign, label or shelf tag.

The new regulations also clarify the relative responsibilities for providing consumer product exposure warnings between product manufacturers, producers, packagers, importers, suppliers, distributors and retailers. The new regulations require a manufacturer, producer, packager, importer, supplier or distributor of a product that is subject to Proposition 65 either: (1) to affix a warning to the product, or (2) to provide directly to the authorized agent for a retail seller written notice, which, among other things, identifies the exact name or description of the product requiring a notice, and encloses all necessary warning materials such as labels, labeling, shelf signs or tags, and warning language for products sold on the Internet for the products at issue. The written notice must be renewed annually, or within 90 days when a different or additional Listed Chemical or endpoint (cancer or reproductive toxin) needs to be added to the warning.

The retailer, in turn, is responsible for the placement and maintenance of the warning materials, including warnings for products sold over the Internet, that the retailer receives from a manufacturer, producer, packager, importer, supplier or distributor of a product. Similarly, the retailer is responsible for providing the warning if: (1) the retailer is selling the product under its own (or an affiliate’s) brand or trademark; (2) the retailer itself is responsible for introducing a Listed Chemical into the product; or (3) the retailer has covered, obscured, or altered a warning label affixed to the product.

The new regulation becomes operative on August 30, 2018. In the interim, business can comply with the current regulations or the new regulations. Indeed, warnings on products manufactured before the operative date that comply with the current regulations are still considered clear and reasonable. Similarly, a business that is a party to a court-ordered settlement or final judgment establishing a warning method or content is still considered to be providing a “clear and reasonable” warning for purposes of the new regulation, if the warning complies with the order or judgment. Nonetheless, businesses may want to begin planning for the new regulations, particularly if they are contemplating introducing new products to the market, or are contemplating other changes to the labels on their existing products.

Jay W. Connolly is a partner in Seyfarth’s San Francisco office and Aaron Belzer is an associate in the firm’s Los Angeles office. They regularly represent and advise clients in Proposition 65 matters and developments. If you have any questions regarding this development or related issues please contact your Seyfarth Shaw LLP attorney, Jay Connolly at, or Aaron Belzer at