Richard Sieg, Inmar Regulatory Counsel
On August 18, we participated in a webinar for the Consumer Healthcare Product Association (CHPA), discussing the challenges and changing regulatory landscape retailers and manufacturers face in managing consumer packaged goods (CPG).  The overarching truth of that discussion lives in the need for retailers, reverse distributors and manufacturers to collaborate on creative, sustainable solutions to manage consumer products at the end of life cycle. It’s not just a challenge for one – it’s a challenge for all, and the solution should come from all.
Guidance from the U.S. Environmental Protection Agency (EPA) allows retailers to rely upon manufacturer’s safety data sheets (MSDS) when determining whether a consumer product, when discarded, becomes a hazardous or non-hazardous waste.  But, EPA guidance also warns that whatever information is used to waste-characterize a product, it must be sufficient to make an accurate determination.
In the absence of sufficient information, the retailer must over-characterize products as hazardous waste to ensure compliance.  It is the absence of information at the retail level that leads to a “when in doubt throw it out” approach to avoid violations. This results in excessive management of consumer products as hazardous waste, costing retailers more at the end of a product’s life; it is cheaper to legally manage non-hazardous waste than hazardous waste.
Safety Data Sheets often do not have the information necessary for a retailer to accurately waste-characterize a consumer product.  For example, if selenium or chromium is in the product, the retailer will need information in the form of concentrations, or “TCLP Test” results, to determine whether those items are hazardous waste as a result of toxicity.  Toxicity is just one of a number of ways that items may be designated as hazardous waste.
If a generator sees that selenium is in a consumer product, but he or she has insufficient data to determine whether the product is actually “toxic,” then they should err on the side of caution.  Couple this with the reality that some state enforcement programs are now focusing heavily on the retailers; it is inevitable that retailers will err on the side of caution, given the high-dollar penalties that are possible for violations.  California, New York and Connecticut (to name a few) are highly scrutinizing retail stores for hazardous waste handling.
The evolution of all this is interesting.  The federal hazardous waste regulations were developed in the wake of the Love Canal environmental disaster, and the focus was on industrial waste.  Application of those hazardous waste regulations on retailers was hardly on the radar screen of the legislature, regulators and retailers of the day.  But now, the state initiatives to enforce the hazardous waste rules on the retailers have impacted the industry significantly, with retailers forced to adhere to regulations originally written to manage the handling and disposal of highly toxic industrial waste.
The future holds much hope for a better regulatory landscape.  EPA is considering at least three rules reportedly intended to make federal hazardous waste regulations a better fit for retail.  The Department of Transportation’s Reverse Logistics rule also may reduce the burden of shipping hazardous materials to reverse distributors.
While these rules will likely be helpful, we doubt that they will relieve all of the burdens, especially the need to have accurate and complete data for waste characterization.  Also, the states must adopt these EPA rule changes and some regulators seem to want disposal dispositions at the reverse distributor to go away.  They don’t want to see consumer products heading for disposal.  Instead, they are pushing the industry toward a framework with an emphasis on reduce, reuse and recycle.  Liquidation, donation, recycling and even return to vendor may fit within these categories, but disposal does not.  This view is especially prevalent in California.
We believe that these challenges need to be faced through a collaborative effort among manufacturers, retailers and reverse distributors.  It is through such collaboration that creative and sustainable solutions are created.  We need to look for solutions that are a win for all of us and we look forward to working with all parties in this effort. What do you think? Questions or comments for Richard? Contact him at Richard.Sieg@inmar.com

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