Environmental Law

Contact: Roger Denny; Spencer Fane Britt & Browne LLP (Missouri, USA)

Belatedly EPA may be recognizing that the RCRA regulatory scheme was not intended to regulate secondary materials generated during retail operations, and EPA has decided to seek input from retailers on potential changes to how the Agency regulates retail operations. Retailers have been EPA enforcement targets during the last few years and EPA has collected substantial penalties.

Recently EPA announced that it was releasing a retail sector specific Notice of Data Availability (NODA). EPA is asking the retail industry for comments on retail operations data collected by the Agency including the quantity of hazardous waste generated during such operations. Further, EPA is asking retailers how hazardous waste regulations can be improved with respect to retail operations thereby acknowledging that RCRA regulations intended for industrial operations may not entirely fit the retail setting.

Retailers should take advantage of the opportunity to impact the Agency’s view on the applicability of hazardous waste regulations to the secondary materials generated as a result of retail operations. Comments on the NODA should be submitted by March 31, 2014 and should reference the Docket ID No. EPA-HQ-RCRA-2012-0426. It remains to be seen if EPA’s data collection efforts will lead to less burdensome regulatory requirements on retailers and a change in EPA’s enforcement approach.

The regulatory focus on these waste retail products is part of a larger national focus on warehousing and consumer and retail products enforcement that members of Spencer Fane’s Environmental Practice Group presented as part of a national webinar entitled “EPA’s Warehouse and Consumer Products Enforcement Initiative.” An audio recording of the presentation and handouts may be downloaded here.