DEC Focusing on RCRA Compliance at Grocery Stores, Pharmacies, and Big-Box Stores

January 20, 2015
Harter Secrest & Emery

In late 2014, the New York State Department of Environmental Conservation (DEC) announced a compliance initiative that will focus on Resource Conservation and Recovery Act (RCRA) compliance at grocery stores, pharmacies, and big-box retail stores with respect to their handling of returned products, obsolete inventory, and other materials and wastes that are regulated hazardous wastes.

Waste materials are regulated “hazardous wastes” if they are specifically listed in the RCRA regulations or exhibit certain hazardous waste characteristics (for example, if they are ignitable or toxic). Everyday products sold at retail establishments, such as household cleaners with bleach, nail polish remover, pesticides, aerosols, fluorescent lightbulbs, batteries, and certain active pharmaceutical ingredients, may be regulated as hazardous wastes when they are disposed of. Thus, retail establishments could be subject to RCRA requirements if they handle and dispose of those types of materials and waste. Depending on the volume of regulated hazardous waste a retail establishment generates, the requirements can include obtaining a RCRA identification number from the U.S. Environmental Protection Agency, using hazardous waste manifests when shipping regulated hazardous waste, providing employee training, and, in New York State, paying certain hazardous waste fees and assessments.

The initial phase of the compliance initiative−the “information outreach” phase−began in November 2014 and is ongoing. The DEC hosted two briefing sessions which described the new initiative and it has issued guidance that will assist retail establishments with their RCRA compliance efforts. The second phase of the initiative−the “voluntary compliance” phase−is pending. During this phase, the DEC will encourage the regulated community to voluntarily come into compliance with applicable RCRA requirements. The DEC will soon be issuing letters to pharmacies and other retailers advising them to bring their hazardous waste management activities into compliance and/or to seek assistance from the DEC with their compliance efforts under the DEC’s new “Environmental Audit Incentive Policy” (a 2013 policy by which the DEC may reduce or waive penalties for violations that are voluntarily disclosed). The final phase of the initiative−the “enforcement” phase−will likely begin in the spring of 2015. It will involve targeted RCRA compliance inspections at retail establishments and formal enforcement actions by DEC if violations are uncovered.

Given the DEC’s commitment to this new initiative and the real possibility of RCRA inspections in the near future and enforcement actions if violations are uncovered, grocery stores, pharmacies, big-box retail stores, and other retail establishments in New York should review their waste streams and their “reverse logistics” arrangements to determine whether they are properly managing regulated hazardous waste in full compliance with applicable RCRA requirements. If there are compliance gaps, then the retailers should take the steps necessary to come into compliance and consider self-reporting the violations to the DEC pursuant to the DEC’s Environmental Audit Incentive Policy.

Please contact any member of our ­firm’s Environmental Practice Area at (585) 232-6500 if you have any questions about the DEC’s compliance initiative or the DEC’s Environmental Audit Incentive Policy.

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