backbone of many regulatory constructs, including the hazardous waste management program, according to Kristin Power and Beth Law of the Consumer Specialty Products Association (CSPA). “RCRA regulations were developed in the mid-1970s to ensure the safe management of hazardous waste and were primarily developed for industrial and manufacturing settings but were stretched to apply to any non-household facility generating and managing hazardous waste, including retail back rooms, and institutional settings like schools and hospitals,” they said. Using a “one size fits all” mentality in hazardous waste management created significant compliance challenges for retailers and their suppliers. These compliance issues, coupled with the increase in the number of products to be managed under the regulation, led retailers and manufacturers to call on the EPA to recognize the unique nature of retailer operations and update the regulations to better address the realities of retailing in the 2010s. The CSPA and industry allies called on the EPA to provide guidance aimed at encouraging recycling and resource recovery while minimizing the burdens of handling aerosols and other consumer products that may be classified as hazardous waste when unsalable. According to Power and Law, such actions to reduce the burdens of handling these products include allowing reverse distribution in the retailer chain to make appropriate decisions on what products can be sold or donated for use and what products need to be handled as waste under appropriate RCRA classifications; classifying aerosol products and other intact consumer products determined to be waste as Universal Waste under RCRA; clarifying that aerosol products do not meet the characteristic of reactivity under RCRA and encouraging state and local authorities to be consistent in this classification; and assuring that RCRA facilitates, and does not in any way discourage, the appropriate and effective recycling and materials recovery of aerosols and other consumer products. EPA responded to instances of hazardous waste mismanagement and noncompliance by major retailers and calls to action by the regulated community by issuing a Retail Notice of Data Availability (NODA) in 2014. Retailers and the regulated community provided feedback on the NODA, which led to a better appreciation of the compliance challenges and understanding of how retailers handle consumer goods that cannot be sold. After reviewing the information received from the NODA, EPA recently released a cohesive strategy building on 18 Spray December 2016 existing proposed regulatory actions to address these issues and to ensure that retail stores comply with hazardous waste regulations. The strategy outlines EPA’s next steps, which include topics of significant interest to the aerosol and larger consumer products industry including issuing a guide on recycling aerosol cans; a policy on reverse distribution; and the final generator rule in Fall 2016 (as well as proposing a universal waste rule for aerosol cans); and working on finalizing the pharmaceuticals rule. The retail strategy includes nearly all of the critical components CSPA urged EPA to address, Power and Law said. While the strategy does not provide a timeline for these key actions, it does encourage continued stakeholder input on these critical components. “CSPA will continue to engage with EPA regulators and our industry retail partners to advocate for rules that allow for maximum reuse/recycling options and to minimize the burdens of handling aerosols and other consumer products that may be classified as hazardous waste when unsalable,” they added. “We’ve found that, when armed with the proper technology and tools, retailers can reduce waste in the reverse supply chain by 60%,” commented Ann Starodaj of Optoro. “The EPA’s strategy to address challenges in the reverse logistics supply chain help illuminate the importance of the problem, as well as some potential resolutions.” The California perspective The Reverse Logistics rule explicitly does not apply to hazardous waste, leaving retailers, reverse distributors and manufacturers with additional questions and uncertainty, but hopefully the EPA will be able to fill this gap, said Nicole Quinonez of government relations and consulting firm Randlett Nelson Madden. The EPA is working on clarifying how hazardous materials, which may become a waste, should be managed in the retail sector, in particular as it relates to reverse distribution. In September, the EPA released a strategic plan outlining how they intend to address the topic, according to Quinonez. As part of the plan, it will issue guidance on recycling aerosols. Expected to be finalized by Spring 2017, the guide will address how to manage and recycle all three components of an aerosol: the container, product and propellant. The guide will consolidate existing regulations and provide clarification and instructions in one place. The EPA will also initiate rulemaking to classify aerosols as universal waste. This will streamline the management standards for aerosols in hopes of improving the proper management of aerosol products and increasing recycling. “In California, where state laws tend to be stricter than federal rules, we too have been wrestling with how to clarify the hazardous waste laws in order for retailers and manufacturers to be able to take advantage of reverse logistics and reduce the number or products unnecessarily sent to the hazardous waste landfill,” said Quinonez. “To that end, the DOT rule and the EPA’s strategic plan could have a significant impact on the work in the state.” Earlier this year, California Senate Bill 423 was signed into law and directs the Dept. of Toxic Substances Control to work with stakeholders including retailers, manufacturers, non-governmental organizations and various state agencies to develop recommendations to clarify how surplus consumer products can be legally managed in the state to reduce unnecessary hazardous waste by June 2017. While the Retail Waste Working Group works through these issues in California, what takes place nationally could help send a signal to state leaders. But wait, there’s more… HM-253 is not the only rulemaking that PHMSA finalized this year that will have an impact on aerosol products, explained ACA’s McAuliffe. Earlier this year, HM- 233F incorporated into the regulations the provisions of nearly a hundred Special Permits with several of them specific to shipping aerosols. Specifically, Special Permit 11296 provided the requirements for shipping damaged or leaking aerosols. While these provisions may not be helpful in the Reverse Logistics retail environment, they do articulate the requirements for shipping damaged and leaking aerosols without the need to apply for a Special Permit. Spray Power Law Quinonez
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