Comments to the United States Environmental Protection Agency regarding 

Executive Order 13563 - Improving Regulation and Regulatory Review

Introduction

Thank you for the opportunity to offer comments to the Agency regarding President 

Obama’s January 18, 2011, Executive Order (EO 13563), entitled “Improving 

Regulation and Regulatory Review.” 

Walmart Stores, Inc., (Walmart) strives to be an environmental leader and believes 

everyone benefits when we are able to work with our regulators to develop best 

practices that achieve environmentally protective results and make sound business 

sense. As the world’s largest corporation, Walmart recognizes that it is uniquely 

positioned to help people around the world to live better. Toward that end, Walmart 

is committed to environmentally sustainable business practices and has been 

recognized as one of the world’s leading corporations in the sustainability arena. 

Domestically, Walmart operates approximately 4,400 stores and other facilities, 

employs over 1.4 million associates, and serves over 120 million customers per 

week. Walmart is the largest retail business in the country, operating grocery and 

department stores, member clubs, and pharmacies. Our company understands it is 

privileged to do business in the United States and that compliance with our 

environmental laws is a pre-requisite to business success. However, as President 

Obama recognized in the Executive Order, sometimes regulations can hamper 

business in unintended ways. Walmart believes that the regulation of the retail 

sector pursuant to federal hazardous waste law is one such area. 

 

RCRA, Consumer Products & the Retail World

The Resource Conservation and Recovery Act (RCRA) and its attendant hazardous 

waste regulations undoubtedly serve an important environmental protection function 

when applied by EPA to the industries for which they were originally intended, 

namely the manufacturing, chemical and industrial sectors. However, the RCRA 

regulations place significant regulatory burdens on the consumer retail sector that 

are unnecessary – and sometimes counterproductive -- from an environmental 

perspective. Rather than protecting human health and the environment, RCRA’s 

misapplication to the retail sector has resulted in overly burdensome regulation and 
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created uncertainty in the retail community. Retailers of all sizes and types struggle 

to understand how these complicated regulations apply to their businesses and the 

products they sell. The retail sector of the American economy finds itself 

confounded when RCRA hazardous waste regulations, crafted with complex 

industrial plants in mind, are applied to neighborhood department stores, grocery 

stores, pharmacies, restaurants or convenience stores. Walmart has expended 

considerable effort to meet the requirements of RCRA and can attest that the 

intersection of consumer retail and RCRA is most aptly described as the proverbial 

“square peg in a round hole.” The significant burden placed on the retail sector by 

RCRA far outweighs the environmental benefits, and ultimately, results in increased 

prices for American consumers. 

In particular, Walmart asks that EPA renew its effort to reconsider the impact of 

RCRA on consumer products. Consumer products are manufactured all over the 

globe, and many product’s ingredients and concentrations are trade secrets closely 

guarded by the manufacturer. There are millions of different consumer products that 

may become a solid waste when they cannot be sold to customers, donated, 

liquidated, or returned to the manufacturer by a domestic retailer. It is an impossible 

burden for most domestic retailers, particularly small businesses, to follow RCRA’s 

fundamental requirement to make a “hazardous waste determination” on every 

consumer product it discards. How can a small business decide if a product that a 

customer returns is a RCRA characteristic waste? In most cases, Manufacturer 

Safety Data Sheets (MSDS) and product labels are inadequate to make the required 

determinations.1 EPA has taken the position that even Conditionally Exempt Small 

Quantity Generators (CESQG) must make hazardous waste determinations on all 

solid waste they generate in order to establish they qualify for CESQG status. Most 

retailers have no capacity to accurately make these determinations, so the reality is 

that many retail businesses are simply unable to comply with RCRA. This has led to 

the creation of unlevel “playing fields,” where some larger retailers are held to the 

letter of the law by EPA and states while other retailers simply avoid the burden of 

compliance. 

Walmart does not seek regulatory relief where the relaxing of a RCRA standard 

would result in an increased risk of harm to the environment or human health. 

Discarded consumer products at retail stores are identical to the products 

consumers take home every day and ultimately dispose. Walmart and other 

 

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EPA could work with OSHA to require manufactures to identify the RCRA and State regulatory 

status of their products if they are discarded. This would give retailers the ability to characterize their 

wastes based on the manufacturers’ knowledge of their products without compromising their need to 

protect trade secrets.
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retailers can only legally sell consumer products that are compliant with all 

applicable consumer health and safety regulations and that are recognized as safe 

for public consumption. There are a myriad of federal and state regulations 

designed to ensure that consumer products are safe for their intended purpose. 

Therefore, there is little logic to RCRA requiring that a consumer product – one that 

is safe to be used and discarded by the consumer – be managed as a hazardous 

waste. Acknowledging this, EPA has long recognized a “household hazardous 

waste” exemption to RCRA for the general public. However, current RCRA 

regulations force retailers to manage the exact same consumer products as 

hazardous waste. President Obama aptly captured the essence of this issue in his 

Op-Ed piece in the Wall Street Journal when he stated: 

“For instance, the FDA has long considered saccharin, the artificial 

sweetener, safe for people to consume. Yet for years, the EPA made 

companies treat saccharin like other dangerous chemicals. Well, if it goes in 

your coffee, it is not hazardous waste. The EPA wisely eliminated this rule 

last month.” See Wall Street Journal, Jan. 18, 2011 at A17. 

Unlike a factory or chemical plant, retailers do not deal with chemicals that are in a 

substantially different and more dangerous form than the products that reach the 

general public. Discarded consumer products at a retail store are exactly the same 

products that the consumer disposes. Additionally, the actual amount of consumer 

products discarded by the retailer versus the amount discarded by the general public 

is miniscule. Walmart sells billions of individual consumer products to the general 

public every year, only a fraction of which are managed by Walmart as RCRA 

hazardous waste.2 This disparity shows that the vast majority of consumer products 

are ultimately disposed of by the public as solid waste. There is no tangible 

environmental benefit to regulating, at great cost, a tiny subset of the consumer 

product universe as hazardous waste when the vast majority is simply regulated as 

solid waste. To illustrate this point, if a local municipal landfill is safely managing the 

disposal of tens of thousands of consumer goods from households and CESQG 

businesses every day, there is little environmental benefit to strictly managing ten 

identical consumer products generated at a local retail store as federal hazardous 

waste and sending those ten products to a Subtitle C landfill. 

 

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A large percentage of the products that become hazardous waste are actually customer returns. 

Walmart has an open return policy. If Walmart refused to accept returns of RCRA regulated 

products, these items would be discarded by customers in their homes as solid waste. Again, there is 

little logic to treating identical consumer products differently under RCRA based on whether a 

customer discards them at home or returns them to a retailer. 
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Under the current RCRA regulatory regime, even the basic RCRA question of when 

a consumer product becomes a solid waste is fraught with ambiguity. This is 

particularly true in regard to retail “reverse distribution” processes whereby retailers 

send consumer products that they are unable to sell in their stores back to a central 

processing location where they are audited and financial credit for the items is 

granted by the manufacturer. At the central processing location, the products are 

analyzed and a decision is made as to their final disposition. A decision might be 

made to resell or liquidate them, return them to the manufacturer, donate them, or to 

recycle or discard them. 3 This decision making process if often dynamic in nature, 

with the decisions being impacted by season, weather, geographic location and 

other business variables. If the decision is made to discard the item at the central 

processing location, several questions arise: is the central location the RCRA 

generator, or does a “waste” decision made there signify that the product should 

have been managed as a waste at the originating retail store? This is currently a 

grey area under RCRA. All major retailers have slightly different methods and 

processes for reverse distribution. Determining whether products must be managed 

as waste at the store or whether they can be shipped for a final determination to be 

made at a central processing area is a particularly daunting proposition, with major 

risks for the retailer. Retailers have recently faced significant RCRA enforcement 

cases in this area. Unfortunately, EPA has historically offered confusing guidance to 

the retail world regarding reverse distribution and the states have also taken a wide 

range of positions.4 

Another open RCRA question regards products that customers return to a retail 

store. Is a returned product a waste at the point the customer decided not to use it 

for its intended purpose - usually at their home? Does the condition of the product 

or whether the customer received his money back impact that analysis? Currently, 

at least with respect to electronics, California has indicated that the act of a 

customer relinquishing ownership of a product to a retailer to be the equivalent of 

discarding the product. Conversely, EPA has indicated that a consumer returning a 

 

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The decision not to sell a product may be made for a variety of reasons – poor sales, restocking of a 

newer model, end of season, customer returns, damaged packaging, or damaged in transit. Often 

credit or other financial compensation is received by retailers from manufactures at the central 

location for any goods not sold by the retailer. 

4 Oddly, EPA’s guidance regarding reverse distribution seems to vary depending on the type of 

product in question. For example, EPA has issued specific guidance for pharmaceutical products and 

electronics that discuss reverse distribution but has not adopted the same principles for other kinds of 

products.
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product from their home to a retailer is not an act of discard and that the household 

waste exemption of RCRA is therefore not applicable. 

There are many other specific technical RCRA issues that create unnecessary 

burdens and confusion for the retail sector. The details regarding these issues are 

beyond the scope of this initial document but some of them are worth briefly 

mentioning as illustrative of the burden and confusion caused by RCRA’s 

misapplication to retail consumer products. 

Pharmaceutical Products - Consumer Prescription Pharmaceuticals RCRA Listed as 

Acutely Toxic P Wastes: A retail pharmacy may needlessly become a heavily 

regulated large quantity generator (LQG) of hazardous waste if it generates only 2.2 

pounds of certain common medications such as warfarin blood thinners. Even more 

problematic are RCRA’s rules regarding “empty containers” and their confusing 

application to bulk pill bottles from which pharmacies dispense pills.5 If a pill is safe 

to be consumed by a person is it wise policy to regulate the empty plastic bottle that 

may contain minute amounts of invisible residue from the pill as an acutely toxic 

hazardous waste? This issue is that has the potential to turn thousands of retail 

pharmacies into new LQGs for generating as few as 65 empty pill bottles. 

Vitamins and other Dietary Supplements: Since they may fail the TCLP test for 

selenium or chromium, Walmart currently manages certain multi-vitamins as 

hazardous waste when discarded because they contain FDA approved levels of 

these essential elements. Given that they are safe for daily human consumption, 

does this make any sense? 

Electronics: The proper recycling or refurbishing of consumer electronics is an 

obvious benefit to the environment. Yet many large retailers are reluctant to enter 

this arena because of the lack of clarity regarding the RCRA regulatory status of 

electronics destined for reuse or recycling. EPA has already exempted CRTs and 

shredded circuit boards so long as they are properly managed. However, for all 

other consumer electronics, from TVs to cell phones, EPA and the states have 

provided ambiguous (or conflicting) guidance regarding when these electronics 

become a waste. It is currently unclear which party is considered the “generator” if a 

retailer collects used consumer electronics and sends them to be evaluated by a 

third-party that possesses the expertise to determine whether they can be 

 

5 While known as “bulk” dispensing bottles, these are small plastic bottles typically holding 100-500 

pills. 
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refurbished or recycled. If some of the electronics are recycled by the third-party 

instead of refurbished, retailers may face an enforcement action for illegally 

transporting hazardous waste. This is a significant risk and a deterrent to the reuse 

and recycling of consumer electronics.6 

In light of President Obama’s Executive Order, Walmart respectfully suggests that 

EPA take this opportunity to address these concerns and make RCRA regulation 

more effective and less burdensome on retailers.

Potential Solutions

Consumer Products Exemptions7

The most beneficial and perhaps simplest solution to these issues would be to 

exempt consumer products discarded by retailers from RCRA regulation as 

hazardous waste. One possible means to accomplish this goal would be to expand 

the “household” waste exemption to include waste consisting of consumer products 

generated by retailers. The benefit of this solution would be to “synchronize” the 

disposal regulations for identical household products being disposed of by 

consumers and by retailers. No longer would a minuscule subset of these materials 

be subject to strict RCRA regulation as hazardous waste, while the vast majority is 

safely disposed of according to solid waste rules. 

Alternatively, at least certain categories of consumer products could be exempted. 

Following President Obama’s logic, an initial focus could be on products that are 

clearly safe for consumers to eat, or drink, or use on their bodies. For example, 

cosmetics, perfumes, vitamins, and food supplements that are sold to consumers 

should be regulated under the same rules as similar household wastes.8 

 

6

In several conversations with Walmart, California has taken the position that if even one device out 

of an entire shipment sent by a retailer to a third-party for refurbishment, is not refurbished and 

resold, then the shipment would be non-compliant. 

7

The term Consumer Products is meant to encompass products of the type, and packaged in a form, 

typically intended for public sale and distribution. 

8

Although medicines also fall in the category of “safe for human consumption,” it might make more 

sense from an environmental perspective to manage their disposal at retailers through reverse 

distribution systems as set forth in the proposed “Guidance Document: Best Management Practices 

for Unused Pharmaceuticals at Health Care Facilities” or pursuant to the proposed Pharmaceutical 

Universal Waste Rule because, unlike other consumer products, local municipal disposal of 

medicines could impact water supplies or be subject to theft. 
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Another initial focus area for possible exemption could be aerosol cans, a common 

product that makes up a large percentage of a retailer’s hazardous waste stream. 

These aerosol cans are identical in nature to aerosol cans sold to, and discarded by, 

the general public. Most aerosol cans are regulated as hazardous waste solely 

because of the potential Ignitability (D001) of the propellant. Aside from certain 

pesticides, very few are hazardous because they contain a toxic material. The 

disposal cost for an aerosol can as hazardous waste is typically more than the 

product itself. It simply does not make sense to manage discarded or empty 

aerosols in the back of a retail store as hazardous waste when thousands of 

identical aerosol cans sit on the shelves awaiting sale and ultimate disposal by 

consumers. Another challenging aspect of managing waste aerosol cans has been 

the uncertainty around their status as potentially characteristic Reactive waste 

(D003). EPA has determined that 50 caliber bullets are not reactive (RO 12339), but 

has equivocated regarding aerosol cans. 

Expansion of Universal Waste Rules to Cover Consumer Products 

Another potential solution could be to expand the definition of Universal Wastes to 

include all or some consumer products when discarded by retailers. This proposal 

would have many positive benefits to retailers while allowing EPA to retain a greater 

level of regulatory authority than an outright exemption. The Universal Waste rule 

recognizes that there are some materials that, while technically hazardous waste 

when discarded, warrant less strict management and disposal requirements 

because of the limited risks associated with their disposal and the wide-spread 

nature of their distribution. Consumer products fit well within the Universal Waste 

framework – there are clearly limited risks associated with their management and 

disposal since the general public handles and disposes of millions of identical 

consumer products everyday. 

Recognizing this as a sensible solution for consumer products, EPA previously 

began the process of analyzing whether to expand the definition of Universal Waste 

to include consumer products. In 2007, EPA concluded that adding consumer 

products in consumer product packaging was “appropriate because these wastes 

are produced by a various and vast community of generators and are often 

mismanaged due to . . . retail chain employees being unfamiliar with the Resource 

Conservation and Recovery Act regulations. This proposed action will streamline 

the current regulations governing these wastes, ensuring that . . . consumer product 

wastes are properly managed...” 72 Fed. Reg. 23281 (Apr. 30, 2007). 

Unfortunately, EPA’s analysis of this issue seems to have ended prematurely 
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without any final decision making as the Agency evidently chose to focus on other 

areas. 

Adding consumer products as a category under the Universal Waste rules would 

clearly satisfy the six factors set out in 40 C.F.R. § 273.81 for treating a substance 

as a Universal Waste:

1. Consumer products are not “exclusive to a specific industry or group of 

industries,” but rather are commonly generated by a wide variety of establishments 

(including, for example, households, retail and commercial businesses, small 

business, and government organizations.

2. Consumer products are generated by “more than 1,000” generators,” “and [are] 

frequently generated in relatively small quantities by each generator.” Thousands of 

retailers and members of the general public dispose of waste from consumer 

products in consumer packaging. These products contain no larger quantities of 

hazardous waste than those discarded every day in households across the country. 

In addition, even a large retailer such as Walmart handles only a small amount of 

waste from consumer products. 

3) “Systems to be used for collecting the waste ... would ensure close stewardship 

of the waste.” Consumer products are well suited to track to ensure they return 

safely to the manufacturer or redistribution center.

4) “The risk posed by the category of waste during accumulation and transport is 

relatively low compared to other hazardous wastes, and specific management 

standards . . . would be protective of human health and the environment during 

accumulation and transport.” The Department of Transportation’s (DOT) hazardous 

materials regulations address the issue of consumer goods by creating a “middle 

ground” category of transportation regulations known as Other Regulated Material –

Domestic or ORM-D. Under DOT rules, the strict shipping requirements for fully 

regulated hazardous materials are relaxed for the ORM-D category of consumer 

goods. EPA should recognize DOT’s model as further evidence that consumer 

products could safely qualify as Universal Waste under RCRA

 

5) “Regulation of the waste or category of waste under 40 C.F.R. part 273 will 

increase the likelihood that the waste will be diverted from non-hazardous waste 

management systems.” Under current rules, retailers have a strong financial 

incentive to simply manage waste consumer products as municipal trash or to reject 

consumer returns of RCRA related products. Allowing disposal under the Universal 
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Waste rules would encourage retailers to accept a broader array of customer returns 

by minimizing the costs associated with utilizing non-hazardous waste management 

systems.

Moreover, this solution would clarify the confusing questions surrounding the reverse 

distribution process. As EPA has already recognized, if consumer products in 

consumer product packaging are classified as Universal Waste, “consumer 

product[s], regardless of the reason for their return or recall, will not be considered 

waste until deemed so by the redistribution center. Deferring the waste 

determination will simplify the compliance requirements for retail stores and will 

ensure the proper management of these wastes by transferring the function to those 

who have the expertise in waste determination and management ...” 72 Fed. Reg. 

23281 (Apr. 30, 2007). This clarity would vastly reduce the risk that hazardous 

waste will be improperly diverted to non-hazardous waste management systems.

6) “Regulations of the waste or category of waste under 40 C.F.R. part 273 will 

improve implementation of the compliance with the hazardous waste regulatory 

program.” Regulating consumer products as Universal Waste would improve 

compliance by placing more realistic regulatory burdens on retailers. RCRA’s basic 

requirement to make a hazardous waste determination on every consumer product a 

retailer discards is such an onerous burden that noncompliance is commonplace. 

As discussed above, this fact has led to the creation of unlevel “playing fields”, 

where some larger retailers obey the letter of the law while other retailers simply 

avoid the burden of compliance. Adding consumer products to the Universal Waste 

Rule eliminates this improper incentive and encourage compliance. As the EPA 

concluded in 2007, “The incorporation of hazardous consumer product wastes into 

the universal waste rule will facilitate the recycling of these products and therefore, 

reduce their illegal disposal into municipal solid waste landfills and combustors.” 72 

Fed. Reg. 23281 (Apr. 30, 2007).

Expansion of the Universal Waste Rules to Cover Pharmaceuticals

As a positive first step toward improving regulation under RCRA, EPA should 

expeditiously move to finalize the pending Pharmaceutical Universal Waste Rule. 

Many retail pharmacies struggle to relate RCRA to their operations. Under current 

rules, if they have CESQG status - for materials not otherwise sent through reverse 

distribution - they are actually incentivized to dispose of pharmaceuticals as solid 

waste in local landfills or down the drain, rather than absorb the costs of managing 

them as hazardous waste. This flawed incentive is easily fixed. As EPA noted in its 

2008 Regulatory Agenda “the inclusion of hazardous pharmaceutical wastes in the 
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universal waste rule will also encourage health care facilities to manage all their 

pharmaceutical wastes as universal wastes, particularly wastes that are not 

regulated as hazardous but which nonetheless pose hazards.” By encouraging the 

treatment of all pharmaceutical waste as Universal Waste, EPA may remedy the 

unequal incentives currently plaguing pharmaceutical retailers.

As with Consumer Products, EPA has already concluded that pharmaceuticals 

clearly satisfy the six factors laid out in 40 C.F.R. § 273.81 for inclusion under the 

Universal Waste rule. See 73 Fed. Reg. 73528-73530 (Dec. 2, 2008). 

Pharmaceutical waste is generated by thousands of retail pharmacies in packaging 

that often contains only trace amounts of dust. Adequate safeguards exist to label, 

transport, and dispose of this waste properly, and simplifying the regulations 

surrounding pharmaceutical waste would improve compliance. 

EPA stated in the 2008 Regulatory Agenda that “ . . . the expansion of the universal 

waste system to include hazardous pharmaceutical wastes will improve protection of 

public health and the environment by providing a more streamlined but effective 

waste management system.” Finally, EPA stated that adding pharmaceuticals to the 

Universal Waste category “would facilitate the implementation of pharmaceutical 

take-back programs by removing RCRA barriers in the collection of pharmaceutical 

wastes from health care and other such regulated facilities, as well as facilitate the 

collection of pharmaceutical wastes from households, including non-hazardous 

pharmaceutical wastes.”

Conclusion 

Walmart truly appreciates EPA granting it the opportunity to submit these comments. 

Moving forward, Walmart stands ready to work with EPA to follow up on any or all of 

the specific issues mentioned in this paper. Walmart is open to providing additional 

information or data to EPA and is available to answer any questions EPA might have 

regarding our experience with RCRA and retail operations. By working together in 

an open and cooperative manner, Walmart believes it is possible to design and 

implement RCRA regulations that are protective of human health and the 

environment and make sound business sense. 

 
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Please direct questions or comments to either: 

Richard Leahy

Associate General Counsel –Environmental 

702 Southwest 8th Street, M.S. #0505

Bentonville, AR 72716-0505

479-277-8262

richard.leahy@walmartlegal.com

Michael Stephenson

Senior Director - EH&S Compliance

508 SW 8th Street

Bentonville, AR 72716-0505

michael.stephenson@wal-mart.com