RCRA s Reach to Consumer and Retail Products

Transcription

1 RCRA s Reach to Consumer and Retail Products A surprise for retail stores, warehouses, and distribution centers handling household and consumer products 2013 MWCC Conference July 1, WA:

2 Overview l Retail Store and Warehouse Dynamics l Storage and Disposal of Product/Wastes (RCRA) l Chemical Management (EPCRA and CERCLA); Air Issues (CAA); Water (Stormwater and POTW Discharges) l Health and Safety (OSHA); HazMat (DOT) l Enforcement National & EPA Region 7 l Considerations and Best Practices 2

3 Why the Focus on Retail, Warehousing, and Distribution? l Nature of Activities l Non-traditional manufacturing setting l Use of contractors and sub-contractors and responsibility for regulatory issues l Proactive enforcement 3

4 Retail Store and Warehouse Dynamics l Storage of large volume of chemicals and products l Difficulties in keeping on top of products and chemicals that are changing constantly l Obsolete and slow-moving products 4

5 Retail Store and Warehouse Dynamics l Historically lower risk operations than industrial sites or manufacturing l Less staff than traditional manufacturing l Knowledge base l Operated by third-party vendors l Segregated locations from company EHS professional 5

6 Retail Store and Warehouse Dynamics l Ripe for confusion different and complex regulatory regimes, lists, thresholds l EPA l RCRA hazardous wastes l CERCLA hazardous substances l EPCRA extremely hazardous substances toxic chemicals and hazardous chemicals l DOT hazardous materials / dangerous goods l OSHA hazardous chemicals 6

7 Contractors and Third-Party Vendors l Responsibility l Contract provisions l Staffing considerations l Subcontractors and use of temporary staff l Oversight 7

8 Is it Product or is it Waste? l Returned products l Damaged products l Obsolete products l Off-spec products l Past shelf-life / efficacy l Spills / releases (forklift damage, overturned pallets) 8

9 RCRA Ignitable Wastes (D001) l Characteristic Flash point l Aerosol cans l Household goods and consumer products l Bathroom and kitchen cleaners l Furniture polish l Carpet cleaners 9

10 RCRA Corrosive Wastes (D002) l Characteristic Corrosive l Bleach l Chlorine cleaners and disinfectants l Oven cleaners l Degreasing agents 10

11 RCRA Listed Wastes l Discarded commercial chemical products, offspec, container residues, and spill residues l P-Listed: pharmaceutical residues in pill bottles, vials, blister packs, and wrappers l U-Listed: pharmaceutical waste l F-Listed: Spent solvents and solvent contaminated rags 11

12 Management and Handling of Hazardous Wastes l Generator Status l Infrequent / Periodic Generation l Container Storage Areas l Containers l Labeling l Manifesting, Transportation, and Disposal 12

13 And Don t Forget l Used Fluorescent Lamps l Forklift batteries (and other batteries) l Used oil l Used hydraulic fluids l Rags and towels with solvent (cleaning / housekeeping) l Cleaning agents and degreasing solvents 13

14 Pharmaceutical Waste as Hazardous Waste l EPA I.G. Report 2012 widespread noncompliance in the healthcare industry l P-Listed: coumadin (warfarin), nicotine patches l U-Listed: lindane (lice/scabies treatment) l Characteristic: (D009 toxic) mercury in vaccines 14

15 Chemical Storage and Management l Emergency Planning Notification l Release Reporting Notification l Hazardous Chemical Storage l Toxic Release Inventory (TRI) 15

16 Warehouse and Chemical Management Clean Air Act Issues l Refrigerant leak detection and repair for ozone depleting substances l Anhydrous ammonia l Asbestos Demolition and renovation activities 16

17 Stormwater and Water Protection l Stormwater Management l Process wastewaters from warehouse and distribution center operations l SPCC Requirements 17

18 Health and Safety l Fall protection l Occupational exposures l Adequate personal protective equipment l Material handling and storage l Lockout/Tagout 18

19 Health and Safety l OSHA s Multi-Employer Citation Policy l OSHA Warehouse Enforcement l Feb (Pennsylvania) l $283,000 penalty l May 2012 (Mass. and New Hampshire) l Corrections required at more than 60 locations l $400,000 civil penalty 19

20 OSHA Inspections 2011 (FY 10/1/2010 to 9/30/2011) Top 10 Most Frequently Cited 1. Scaffolding (construction) 2. Fall protection (construction) 3. HazCom Standard 4. Respiratory Protection 5. Lockout/Tagout 6. Electrical, wiring methods 7. Powered industrial trucks 8. Ladders (construction) 9. Electrical systems design 10. Machine guarding Guarding Top 10 Highest Penalties 1. Fall protection (construction) 2. Scaffolding (construction) 3. Lockout/Tagout 4. Machine Guarding 5. Ladders (construction) 6. Excavations, requirements 7. Powered industrial trucks 8. General Duty Clause 9. Electrical wiring methods 10. Electrical systems design 20

21 DOT HazMat and FAA Transportation l HazMat l Dangerous Goods l Consumer Commodity ORM-D l Lithium Batteries l FAA Enforcement l K-Mart (2010) l Nail polish and aerosol sun block l $140,000 penalty sought by FAA 21

22 National Enforcement l Wal-Mart EPA (May 2013) - $82 Million l l l RCRA Civil penalty - $6.1 million FIFRA Criminal Misdemeanor - $14 million CWA Criminal Misdemeanor - $60 million State of California l Wal-Mart (2010) l $24.7 Million (penalty and SEP) l Target (2011) l $22.5 million civil penalty and injunctive relief stores (Bleach, paints, pesticides, aerosol cans, oven cleaners, automotive products, batteries, etc.) l CVS (2012) l $13.75 million civil penalty and SEP (pharmacy waste, batteries, fluorescent lamps, photo-processing waste) l Costco (2012) 22

23 EPA Region 7 Enforcement and MDNR Enforcement l Wal-Mart (MDNR - Missouri) l Return of herbicides and pesticides to third-party l $1.25 million civil penalty and SEP, plus over $3 million in remediation of site l Retail Store (EPA - Missouri) l Abandoned, unclaimed, damaged goods from commercial shipping operation l Nearly $100,000 civil penalty l Warehouse (EPA - Kansas) l Breakage and spillage at freight facility l Over $50,000 civil penalty 23

24 EPA Region 7 Enforcement l ChemCentral (Missouri) 24

25 Criminal Enforcement EPA Region 7 l Wal-Mart (Missouri) 2013 l Greenleaf LLC (Missouri) l Redistribution of consumer product pesticides / herbicides: FIFRA l HPI (Missouri) l Chemical and pesticide manufacturer: RCRA, CWA, FIFRA l Individual criminal plea and Corporate criminal plea 25

26 Considerations and Best Practices l Management and Handling of Hazardous Wastes l Contracting l Operating Procedures and Protocols l Training l Auditing and Compliance Evaluations 26

27 Additional Resources From Environmental Law Solutions l Improper Disposal of Consumer Products by Retailer Leads to $82 Million Criminal and Civil Penalty for RCRA, FIFRA, CWA Violations l l EPA to Re-evaluate Regulation of Disposed Consumer and Retail Products as Hazardous Waste Under RCRA l l DOT Evaluating New HazMat Regulations for Reverse Logistics of Retail and Consumer Products l 27

28 Q&A and Contact Information Andrew C. Brought Spencer Fane Britt & Browne LLP 1000 Walnut, Suite 1400 Kansas City, Missouri