Richard Sieg, Inmar Regulatory Counsel
There was a time when hazardous waste disposal wasn’t much of a concern to regulators. Then came the industrial pollution discoveries of Love Canal, the Valley of the Drums, and other sites severely contaminated by toxic industrial waste that threatened human and environmental health. It’s come a long way – today, while people and the environment are safer, retailers face regulatory fines in the millions for seemingly innocent products being found by regulators doing dumpster dives. Do your employees even know for sure what is and isn’t hazardous among returned products?
In the wake of Love Canal and other discoveries, EPA was tasked to deal with solving the nation’s problems associated with industrial waste sites. So they did. The agency developed rules with the industrial environment in mind.
EPA was understandably less concerned with the retail sector, which was barely a blip on the radar, producing barely a tiny fraction of one percent of the hazardous waste in the U.S. at the time. While the agency proposed to exclude the retail sector from the rule, they decided not to exclude the entire sector from its rules. But they applied the rules to retailers as they did to industrial waste producers.
One irony of the rules is that waste generated by households is exempted from the rules. However, when some of those same consumer products are returned to a store they are deemed “hazardous waste.” This is true of a number of common consumer products, including some things we consume, any of which can be routinely thrown in the trash at home.
This presents a huge challenge for retailers, especially as the laws begin to change. In most states, these products can be sent in mass to distribution centers where trained employees can handle their compliant disposition. But some state and municipal agencies are now requiring that these products, when returned, must be dealt with at the retail store.
In recent years, retailers have paid fines and settlements in the tens of millions of dollars for alleged violations in improperly storing, transporting and disposal of common everyday products such as bleach, paint, bug sprays, batteries and others. EPA defines hazardous waste as any waste that is toxic, corrosive, reactive or ignitable. While such products as those listed above can seem obvious, the rules also regulate products that contain components or ingredients that meet these definitions, making it even more difficult to determine which products could be a regulatory time bomb.
It’s easy enough for the everyday retail employee to know that products like antifreeze, cleaning fluids and flammable liquids should be handled differently, but not so easy to spot a lot of other products that are deemed hazardous when they are returned to the store.
Let’s look some common items that you wouldn’t know at first sight are hazardous waste when discarded. It should be noted that not all products of these types are considered hazardous as wastes.
We’ve come a long way from Love Canal when a 1.62 ounce container of a product that is added to water for flavor is regulated strictly as hazardous waste. Why? Because the product itself, not dissolved in water has a pH that meets the regulatory criteria for corrosivity. Nicotine is a listed hazardous waste and therefore any concentration of nicotine in a product makes it hazardous waste when discarded. This pulls e-cigarettes, patches and other products into the stringent hazardous waste regulations.
What about multivitamins and dietary supplements? EPA is concerned about chemicals that, when they are buried in a landfill, can leach from the landfill and spread in groundwater, potentially at unhealthy levels. Some of these products contain selenium and chromium which make the product a hazardous waste because of their potential to leach into groundwater. This is where many unsuspecting retailers or healthcare facilities may unknowingly violate EPA regulations.
Mouthwash? Really? Some mouthwash products are considered toxic when they become waste because of the phenol. Finally, some consumer products have a flashpoint (the temperature at which a particular organic compound gives off sufficient vapor to ignite in air) that is less than the regulatory limit of 140oF. These include some windshield washer fluids, nail polish remover, Nyquil (sleep aids, etc.) and waterproof mascara products.
EPA has acknowledged that retailers create relatively few high-volume hazardous wastes like industrial facilities do. EPA is beginning to consider that retailers face a different challenge and present a different environmental threat than industrial-processes. It’s encouraging to see the agency’s efforts to realign these requirements in the retail sector to better match the standards for compliance with the actual, lesser risks associated with the management of retail product returns.
With states such as Connecticut and New York following California’s lead of tougher enforcement on retailers, it’s important to be sure you have a means for sorting and properly disposing of these products, either at your reverse distribution center, or if you’re in California, at the store. It will be important for retailers to adopt new protocols and software to aid in identifying these products. Those measures might seem costly, but compared to making millions of dollars vanish in one fell swoop by a regulator, they can protect your finances and make you a better steward of the environment.
Questions? Comments? Contact Richard at Richard.Sieg@inmar.com