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Creating regulatory and sustainability clarity for the retail industry 

under the Resource Conservation and Recovery Act (RCRA)

Whereas the retail community strives to design and implement operational practices in 

compliance with applicable environmental laws and regulations and foster more sustainable, 

efficient, and environmentally-conscious business practices, the RILA membership requests the 

United States Environmental Protection Agency’s assistance and partnership in addressing the 

issues described herein: 

Item #1: Provide Guidance on the Regulatory Status of Empty P-listed Pharmacy Pill Containers

Retail pharmacies may needlessly become heavily regulated LQGs of hazardous waste if they generate 

or accumulate only 2.2 pounds of certain common medications such as warfarin blood thinners. Under 

RCRA’s rules regarding “empty containers” and their confusing application to containers from which 

pharmacies dispense pills which, when discarded, are classified as P-listed hazardous waste, it is 

currently unclear whether the weight of the empty containers must be counted towards the pharmacy’s 

generation and accumulation of acute hazardous waste. Unless resolved, this issue has the potential to 

unnecessarily classify thousands of retail pharmacies as LQGs for generating in a calendar month or 

accumulating as few as 65 empty pill bottles.

Industry perspective: EPA should clarify through guidance that only the weight of the residues in such 

containers should be counted toward the generation and accumulation of P-listed hazardous waste.

Next steps: RILA will work with EPA where necessary to provide data and input.

Item #2: Allow Generator Status to be Established through Alternative Methods for Calculating 

Waste Generation and Accumulation

Unlike typical industrial facilities, retailers, by their very nature, are episodic generators of hazardous 

waste. Generation and accumulation rates vary depending on customer returns, seasonality, accidental 

product damage, and ‘midnight’ consumer dumping in facility parking lots. This inherent variability means 

that retail facilities can episodically fluctuate from CESQG to SQG to LQG, thereby creating confusion for

retailers regarding reporting, training, and other program requirements. 

Industry perspective: With respect to retail facilities, EPA should provide criteria and guidance for allowing 

generator status to be established through an alternative means of calculating generation and 

accumulation rates (such as averaging of waste generation over some relevant time period). This would 

provide retailers, EPA, and potentially States, with greater certainty around the RCRA status of retail 

facilities in a manner that reflects the realities of the retail environment.
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Next steps: RILA will work with EPA to develop proposed guidance.

Data needs: Percentage of month’s typical retail stores are classified as CESQG.

Item #3: Consumer products managed through reverse distribution systems in the retail sector

should not be classified as “solid wastes” until a decision has been made to discard them

Reverse distribution is the process of moving retail consumer products backwards (in “reverse”) through 

the logistics chain in order to redistribute those products to other parties, e.g., distributors, manufacturers,

suppliers, other retailers, or charitable and liquidation outlets (“Receiving Entities”) for potential reuse and 

resale, recycling, or financial credit. All retailers utilize some form of reverse distribution. However, the 

limited regulatory guidance that exists as to when such consumer products become “discarded” or “solid 

waste” under the RCRA regulatory scheme leaves the retail community without a clear set of criteria upon 

which to build consistent compliant and sustainable practices. 

Industry perspective: 

 EPA should confirm that consumer products that are not waste-like and are transferred from a 

retailer to Receiving Entities for potential credit or payment or any other legitimate business 

purpose, and for which a decision to discard has not been made, should continue to be 

considered product, not waste. As a general matter, the decision to discard is not made at the 

store level because store employees do not have sufficient information about the potential 

disposition of the goods (i.e., whether they will be returned to the supplier, sold to a 

merchandiser, donated to charity, etc.), since those decisions often involve evaluations of 

contractual agreements and other policy or business issues that have been established at the 

company-wide, not store, level. The Receiving Entities, however, have (i) the technical expertise 

to arrive at definitive waste determinations and (ii) the proper incentives to resell, refurbish, 

recycle, or safely dispose of products. The Receiving Entities who choose to dispose of consumer 

products should be deemed to be the “generators” of the waste. 

 In cases where reverse distribution is not used and retail store-owned products are back-hauled 

from stores to a company-owned distribution center (DC), the decisions on disposition of the 

merchandise should be made at the DC where DCs have the resources to safely and efficiently 

determine the optimal and most environmentally-responsible method of reuse or disposal.

Next steps: RILA will identify a retail company to provide tour of Washington, DC- or New York Cityarea stores and RLC if possible.

Data needs:

 Results from the collaboration between Walmart and the U.S. Department of Transportation.

 Volume of product handled through reverse distribution.

 Breakdown on how material/product handled through reverse distribution is refurbished, recycled, 

or disposed.

 Count of retailers with reverse distribution centers and number of centers.
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 Count of retailers who use a third-party transporter such as UPS to handle reverse distribution.

 Cost difference between handling hazardous waste at the store versus distribution center 

location.

Item #4: Finalize the Proposed Universal Waste Rule For Pharmaceuticals

Promulgating and implementing the Universal Waste Rule for Pharmaceuticals that was proposed in 

December, 2008 will encourage the proper management of waste pharmaceuticals. Currently, nonhazardous waste pharmaceuticals may be disposed of with solid waste or down the drain. Under existing 

regulations, many small pharmacies may also legally dispose of hazardous waste pharmaceuticals in 

similar fashion due to their conditionally exempt generator status. Promulgating the Universal Waste 

Rule for Pharmaceuticals will provide a cost-effective, efficient, and safe option for retail and other 

pharmacies to manage waste pharmaceuticals. By finalizing the Universal Waste Rule, it will be easier 

for pharmacies to collect more pharmaceuticals and manage them in a safer and more streamlined 

manner. It will also further related EPA policies, such as decreasing the volume of pharmaceuticals that 

are disposed of through waste water systems. 

Industry perspective: The industry seeks finalization of the Universal Waste Rule for Pharmaceuticals. 

EPA succinctly stated in its 2008 Regulatory Agenda “. . . 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.” EPA also 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.” Further, 

promulgation of the Universal Waste Rule for Pharmaceuticals will lead to increased security around the 

management of pharmaceuticals. Retail pharmacies currently utilize a variety of reverse distribution 

processes for pharmaceuticals. The Universal Waste Rule for Pharmaceuticals will provide additional 

structure around these processes that can ensure a more uniform waste management and tracking 

approach that will benefit the proper management of all types of waste pharmaceuticals, including nonhazardous pharmaceuticals. The Pharmacy Universal Waste Rule should not preclude donations of 

pharmaceuticals to charitable organizations that can benefit from the use of the drugs for treatment of 

humans or animals.

We understand that some commenters raised concerns about the tracking and notification requirements 

in the proposed rule. RILA is willing to work with EPA and other stakeholders to resolve those concerns 

so that this environmentally beneficial rule can finally be promulgated.

Next steps: RILA will work with EPA where necessary to provide data and input.
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Item #5: Remove Regulatory Burdens to the Recycling of Aerosol Can Consumer Products

Aerosol cans currently represent a large percentage of retail consumer product hazardous waste. 

However, the vast majority of these aerosol cans are capable of being recycled for scrap metal and the 

flammable propellants captured for fuel recovery. Many recycling and disposal facilities take advantage 

of exemptions under RCRA for the processing of scrap metal and recovering fuel, yet retailers are unable 

to avail themselves of such exemptions, and must manage these same aerosol cans as hazardous 

waste, simply because these recycling functions are not performed at retail facilities. 

Additionally, it is currently unclear whether aerosol cans have the characteristic of reactivity (D003) simply 

because they may be pressurized or contain a flammable propellant. EPA has definitively concluded that 

0.50 caliber ammunition is not ‘reactive’ as defined under RCRA, yet has equivocated as to the status of 

consumer aerosol cans. In contrast, California’s Department of Toxic Substances Control (DTSC) has 

classified non-empty aerosol cans as Universal Waste, thereby creating clarity and consistency while at 

the same time protecting health, safety and the environment.

Similar to spent lead acid batteries and CRTs, EPA should issue regulations or provide guidance that will 

enable retail facilities to avail themselves of existing RCRA recycling provisions by allowing the facilities to 

send aerosol cans for legitimate recycling without characterizing or managing such aerosol cans as 

hazardous waste. 

Industry perspective: The retail industry suggests a three tier approach to managing aerosol cans:

1. Aerosol cans not containing flammable propellants or contents be considered non-hazardous,

confirming that D003 does not apply to waste aerosols.

2. Aerosol cans containing a flammable propellant and otherwise non-hazardous components that 

are shipped for recycling be exempted from RCRA under the fuel and scrap metal exemptions.

3. Aerosol cans containing flammable components and/or hazardous contents be managed as 

Universal Wastes.

Next steps: RILA will continue to work with EPA to clarify aerosol can handling issues and potential 

solutions.

Data needs: Percentage of total hazardous waste stream generated by aerosol can disposal that could 

otherwise be diverted to recycling.

Item #6: Create Clarity for Electronics Management

Consumer electronics that are acquired and managed by retailers through customer returns, overstocks, 

and perhaps even take-back events are commodities, and therefore, should be regulated accordingly. 

EPA has already exempted CRTs and shredded circuit boards from the definition of solid waste under

RCRA provided they are properly recycled. However, for all other consumer electronics, from talking 

stuffed animals to flat panel televisions to cell phones, there is no consistent guidance at the federal or 
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state level. The regulatory scheme has simply not kept up with the quickly evolving world of consumer 

electronics. Retailers are left not knowing whether they are subject to strict hazardous waste rules, and in 

fact, are faced with a patchwork of state and local regulations that cover a mish-mash of electronic 

devices with differing levels of regulation.

Consumer electronics retailers need clarity on the rules for managing all consumer electronics. Clarity 

could be provided under the DSW rule, through expansion of the universal waste rules, or through clear 

guidance issued from EPA. Such clarity would provide needed direction to the retail community and the 

States. 

Industry perspective: From the retail industry’s perspective, so long as electronics are destined to be 

evaluated to determine whether they will be reclaimed and/or recycled in a responsible manner by a 

reclaimer/recycler, the management and transportation of electronics by retailers should not be regulated. 

A retailer’s obligation should be to perform appropriate due diligence regarding the reclaimers and 

recyclers they select.

Next steps: RILA will continue to work with EPA to clarify electronic waste guidance.

Item #7: Provide for the Consistent Characterization of Consumer Products

The world of retail consumer products consists of hundreds of thousands of unique products from tens of 

thousands of manufacturers and suppliers. Due to the proprietary nature of many consumer product 

ingredients and the complexity of waste characterization in general, Material Safety Data Sheets (MSDS)

frequently do not provide sufficient information for accurate waste characterization. Accordingly, the 

average retail business has little capability to adequately determine whether such consumer products are 

potentially hazardous waste, and hence, to properly determine its generator status. As a result, larger 

retailers may have to expend considerable resources attempting to comply with the law while smaller 

retailers may be simply unable to comply.

Industry perspective: EPA should either exempt consumer products from RCRA requirements or require 

manufacturers to include end-of-life disposal information and shipping requirements in MSDS.

Next steps: RILA will continue to discuss with EPA.

Item #8: Refine the Regulation of Consumables and Personal Care Products

Many retail consumer products are intended for consumption and/or application to the body and are 

recognized as safe to do so. Nevertheless, these same products often are regulated as hazardous waste 

under RCRA. As President Obama rightly stated “. . . [w]ell, if it goes in your coffee, it is not hazardous 

waste.”1

 

1

President Obama, Wall Street Journal, Jan. 18, 2011 at A17.
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Retail consumer products that are intended for consumption and/or application to the body should be 

exempted from regulation as hazardous waste, or in the alternative, managed as universal waste. The 

current definitions under the proposed Universal Waste Rule for Pharmaceuticals could be modified to 

specifically address the vast majority of consumable retail consumer products. The current form of the 

proposed rule provides the following definition of pharmaceuticals:

. . .any chemical product. . . that is intended for use in the diagnosis, cure, mitigation, treatment, 

or prevention of disease or injury in man or other animals. 

. . .any chemical product. . . that is intended to affect the structure or function of the body in man 

or other animals. 

This proposed definition is meant to include, but is not limited to, pills or tablets, medicinal gums 

or lozenges, medicinal liquids, ointments and lotions, intravenous (IV) or other compounded 

solutions, chemotherapy drugs, vaccines, allergenics, medicinal shampoos, antiseptics and 

medicinal dermal patches.

Industry perspective: The definitional phrase “intended to affect the structure or function of the body of 

man or other animals” should be clarified to include consumable food and drink, dietary supplements, 

energy products, health and wellness products such as vitamins, as well as skin care, cleansers, 

fragrances, hair care, and other cosmetic products. 

Next steps: RILA will continue to discuss with EPA.