Retail and Pharmaceutical Companies in New York Subject to RCRA Inspections & Enforcement

By Ursula Knowles, Assistant Vice President, Information Development

At the end of last year, the New York State, Department of Environmental Conservation (NYS-DEC) held two briefings regarding the basic requirements of the Resource Conservation and Recovery Act (RCRA) program for retail facilities and pharmacies. RCRA is a regulation that governs the generation, treatment, storage and disposal of hazardous waste at active facilities. It is often assumed that this regulation applies primarily to industrial facilities, however, during this briefing it was made clear that industrial facilities are not the only types of entities that may be subject to RCRA regulations. Any entity that disposes of hazardous materials, including retailers and pharmacies, will be subject to RCRA inspections and enforcement in New York. Currently, California (CA) has a robust enforcement program for retailers and it is believed that New York is moving in that direction also. According to the CA Department of Toxic Substances Control, Walmart, Lowes, Rite-Aid, CVS, Safeway and 99 Cents Only stores were all the subject of enforcement actions related to illegal disposal of hazardous waste that resulted in multiple millions of dollars of fines.

The first briefing outlined some of the common RCRA violations that the NYS-DEC has typically uncovered at retail facilities such as pharmacies, food suppliers with pharmacies, home improvement stores, big-box stores and paint suppliers. They include:

–  Failure to make hazardous waste determinations for pharmaceuticals, ignitables such as alcohols and solvents and corrosives such as drain cleaners and batteries.

–  Failure to properly manifest hazardous waste

–  Failure to properly train staff on hazardous waste management

–  Failure to properly manage universal waste

–  Incomplete/incorrect understanding of rules for reverse distribution/reverse logistics

–  Less than 50 foot setback for storing ignitable wastes

Although determining whether or not a substance is a hazardous waste under RCRA is not always an easy process, in general, the characteristics of RCRA hazardous wastes are corrosively, toxicity, ignitability and reactivity. Acids found in batteries are examples of corrosive compounds; pesticides/weed killers/household cleaners are often toxic; paint and furniture polish are often ignitable; and chlorine bleach + ammonia are reactive.

The NYS-DEC will be releasing guidelines for retailers to follow to comply with RCRA with respect to these violations. They will also maintain robust enforcement of RCRA regulations, in general, to ensure that retail facilities comply with them. This means that any retailer or pharmaceutical company that disposes of products that they sell as a result of defective products, damaged products, out dated products or product returns will have to comply with RCRA regulations when it comes to disposing of those products.

Environmental insurance carriers have developed insurance products that will respond to spills or releases related to products which are the target of these regulations. In addition, in cases, clients may be able to procure coverage for pollution conditions that result at non-owned disposal sites that these products are taken to. In some cases, coverage may be available for civil fines and penalties related to hazardous waste disposal. Please contact your local Beacon Hill representative for additional information with regard to the coverages available for retail and pharmaceutical entities.