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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 request s the United States Environmental Protection Ag ency’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 di scarded, 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, t his 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 throu gh 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 cal culating 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 th at reflects the realities of the retail environment.2324210v2

 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 : C onsumer product s 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 retai lers 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 trans ferred 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 st ore 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 contra ctual agreements and other policy or business issues that have been established at the company
- wide, not store, level. The Receiving E ntities , however, have (i) the technical expertise to arrive at definitive waste determinations and (ii) the proper incen tives to resell, refurbish, recycle, or safely dispose of products. T he Receiv ing Entities who choose to dispose of consumer products should be deemed to be the “ generators ” of the waste.

 In cases where reverse distribut ion is not used and retail store

- ow ned 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 environment ally

- responsible method of reuse or disposal.

 Next steps: RILA will identify a retail company to provide tour of Washington, DC

- or New York City

area 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 disp osed.

 Count of retailers with reverse distribution centers and numbe r of centers

.2324210v2

 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, non

hazardous waste pharmaceuticals may be di sposed 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 U niversal W aste R ule for P harmaceuticals will provide a cost

- effective, efficient, and safe option for retail and other pharmacies to manage waste pharmaceuticals. By finalizing the Universal Waste R ule, it will be easier for pharmacies to collect more pharmaceutic als 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 finaliz ation of the Universal Waste R ule 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, p romulgation of the Un iversal 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 R ule for Pharmaceuti cals 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 non

hazardous 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 neces sary to provide data and input.2324210v2

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 s crap 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 unde r 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 allowin g 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
, confirm ing 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 ex empted 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 po tential solutions.

 Data needs: P ercentage of total hazardous waste stream generated by aerosol can disposal that could oth erwise 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 s hredded c ircuit b oards 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 or2324210v2

state level

. The regulatory scheme has simply n ot 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 n eed 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 r e tail 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, t he 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 EP A 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 suppli ers. 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 : E PA should either e xempt consumer products from RCRA requirements or require manufacturers to include end

- of

- life disposa l 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 A17.2324210v2

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 Pharmac euticals 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 us e 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.