Local and state legislation related to single use shopping bags is expected to continue growing in 2020. For example, in New York by March 20th, retailers will have to comply with specific bag requirements. The increase in legislation across the country, as well as the varying requirements and specifications for bags, makes it hard for retailers to keep track and prepare for compliance. The Retail Compliance Center (RCC), an initiative of the Retail Industry Leaders Association (RILA), is working to keep retailers up to date on consumer bag legislation and provide answers to help with compliance. The RCC has several resources and tools on consumer bag legislation that are listed below.
Consumer Bag Tracking Matrix - provides an overview of consumer bag legislation across the United States by state and/or municipality, as applicable, for both paper and plastic bags.
Consumer Bag FAQ – details common questions posed by retailers on consumer bag legislation and provides suggested resources as guidance.
Mandatory Recycling and Disposal Ban Fact Sheet - focuses on waste streams most relevant to retail store operations and distribution centers and includes information on commonly recycled materials such as paper, plastic, metal and glass.
We have also identified common exemption language for plastic bags through state legislation that would be helpful to retailers. Many local requirements also exempt these types of bags, in addition to others. The most frequently exempted bags include:
• Pharmacy bags for prescription medications
• Non-handled bag used to protect purchased items from damage
• Garment/drycleaner bags
• Bags solely to contain or wrap uncooked meat; produce; candy; bulk items
Several states have bag legislation at the state level, and for several states including New York, Maine, Oregon and Vermont, the effective dates are in 2020. We have provided a summary of state bag legislation below with states that were identified as top interest to retailers.
STATEWIDE PLASTIC BAG LEGISLATION
n/a = law does not mention this type of bag in legislation tbd= legislation has not been fully determined yet
1 = Some states are mandating bag fees at point of sale – the amounts range from $0.05 to $0.10 and some require a portion or all be remitted to the state or local government
For updates to the summary below and direct links to the legislation, visit the Consumer Bag Tracking Matrix.
Last month, the Retail Industry Leaders Association (RILA) launched the Retail Advisor for Energy Management. The Advisor is a free cloud-based analytical platform for your company to use to evaluate your energy management program. The platform has benchmarking, reporting and tracking functions. The RILA Retail Advisor for Energy Management uses the assessment results to provide tailored guidance to help retailers improve program performance.
If you haven't registered yet, get started today by requesting RILA Retail Advisor access and join 15 other retailers looking to improve their energy programs. Once your profile is created, you will receive a confirmation email with guidance on how to complete your first assessment.
RILA has added additional resources to help Advisor users. If you are looking for a quick guide on how to create an assessment, review results and peer benchmarking, visit the quick start guide. If your company is interested in learning more about the value of the RILA Retail Advisor, join us for a webinar on Thursday, February 27th, as Tiffin Shewmake, Executive Director, Retail Compliance Center & VP, RILA, gives a walkthrough of key components of the RILA Retail Advisor. Registration for the webinar can be found here.
RILA ADVISOR FOR ENERGY MANAGEMENT RESOURCES
Quick Start Guide Advisor FAQs Upcoming Webinar
For any questions or feedback on the RILA Retail Advisor for Energy Management, please email email@example.com.
In 2019, EPA finalized several changes to Resource Conservation and Recovery Act (RCRA) regulations, including the handling of aerosols and hazardous waste pharmaceuticals. While these new rules have the potential to be significant for retailers, in reality, change may be slow. Most states have their own hazardous waste rules and therefore must adopt changes to RCRA. In some states, the rules are immediately in force while in others the process drags. For example, the 2016 Generator Improvements rule is final in only 23 states and in varying degrees of completion in the other 27 states and the District of Columbia.
Under RCRA, states do not have to adopt portions of a rule that are considered less stringent than current regulations and some of the 2019 changes are considered less stringent. The slowness of state implementation and possibility that states will not uniformly adopt the new regulations means that RCRA will remain complicated for retailers. Some of the major changes that should take place in 2020 are highlighted below.
Final Rule Aerosol Cans Universal Waste
In November 2019, EPA issued a final rule classifying hazardous aerosol cans as universal wastes under RCRA 40 CFR part 273. The streamlined universal waste regulations will hopefully make regulatory compliance easier for retail operations and promote the recycling of aerosol cans. For an analysis of the final rule, click here.
This rule is considered "less stringent" than current rules and therefore states do not have to adopt it. However, aerosol cans do not seem especially controversial and some states, such as California and Colorado, already consider aerosols as universal waste, so it is likely that most states will make this change. However, some confusion remains around issues such as the transportation of universal waste aerosols across states that have not adopted the rule, if cans sent for recycling are considered "waste," what constitutes as an empty can, and the official federal effective date.
Pharm Rule and P075 listing for nicotine
A final rule for managing hazardous waste pharmaceuticals was signed in December 2018. This rule applies to healthcare facilities (including retail stores that sell pharmaceuticals) and includes a number of elements that apply to retail relating to areas such as reverse logistics and the RCRA definition of "empty" for hazardous waste containers, including not requiring triple-rinsing of containers that held acutely hazardous pharmaceuticals. The rule also prohibited the disposal of hazardous waste pharmaceuticals by pouring them down the drain. One of the more anticipated aspects of the new rule is the change in classification of nicotine products.
The Pharm Rule provides relief for retailers that sell nicotine replacement products such as gums or patches. Under RCRA, these products had been considered acute hazardous waste as nicotine was a P-listed waste (based on past use as a pesticide). This designation not only made these products costly to manage but also resulted in the classification of many stores as large quantity generators. Under the Pharm Rule, FDA-approved OTC nicotine replacement therapies will no longer be considered hazardous waste at all (this change does not apply to e-cigarettes, vaping pens and refills). However, because it is considered less stringent, this change is not required in state rules. So far 9 states have adopted the Pharm Rule and all included the change in nicotine status (see the RCC tracking matrix for details).
EPA Proposal to Modernize the RCRA Ignitability Characteristic
Also in 2019, EPA issued a draft proposal for changes to the RCRA ignitability characteristic, with a final rule expected in early 2020. According to EPA, the proposal will clarify the existing regulation and give generators the flexibility to use modern test methods. Although the proposed changes are mostly technical, changes related to the exclusion for aqueous liquids with less than 24% alcohol and multiphase mixes could impact the classification of some waste types. It is uncertain if the proposed rule will be considered less, the same, or more stringent than the current rule, so the requirements for state adoption are unclear. The RCC hot topics section lists more resources on this rule and will be updated as more information becomes available.
Depending on the speed of state implementation, 2020 could see major operational changes related to hazardous waste or not much at all. The RCC will be tracking state implementation of these rules, click here for the Pharm Rule state tracking matrix and look for the release of an aerosol matrix tracking state adoption of this rule soon.
The new Retail Advisor for Energy Management is now live and available for use!
The Retail Industry Leaders Association's (RILA) Retail Advisor for Energy Management is a free cloud-based analytical platform for your company to use to evaluate your energy management program. The platform has benchmarking, reporting and tracking functions. The RILA Retail Advisor for Energy Management uses the assessment results to provide tailored guidance to help retailers improve program performance.
The RILA Retail Advisor for Energy Management is built around a customized program assessment that is based on the Energy Management Leadership Model (EMLM). The EMLM is a roadmap that helps retail energy managers optimize their energy programs. The model can be used to baseline the maturity of programs and identify the dimensions over the highest leverage opportunities for improvement.
The RILA Retail Advisor uses the EMLM to provide guidance specific to an individual company's energy management program. For example, the system may suggest that a company may want to move their Initiating Level HVAC Program to the Progressing or Excelling Level by implementing technologies or practices widely used by industry peers. Users can compare the elements of their energy management program to other retailers', which can help spark conversations internally on the desired program levels, areas of potential risk, and goals for the future.
The RILA Retail Advisor for Energy Management is free for verified retail companies.
Your Next Step: Get started today by registering for RILA Retail Advisor access. Once your profile is created, you will receive a confirmation email with guidance on how to complete your first assessment.
Please contact firstname.lastname@example.org with any questions or feedback.
A growing number of states and municipalities have passed legislation on single use shopping bags. The environmental impacts of plastic bags have particularly concerned consumers and local jurisdictions. The rapid increase in consumer bag legislation has led to varying requirements and specifications across the country, making it hard for retailers to keep track. The Retail Compliance Center (RCC), an initiative of the Retail Industry Leaders Association (RILA), is working to keep retailers up to date on consumer bag legislation and provide answers where possible. The following FAQ details common questions posed by retailers and provides suggested resources as guidance.
1. How can my company keep track of the plastic bag legislation that is being passed at state and local levels?
Because much of the legislation around plastic consumer bags is at the local level and there are frequent changes, tracking the requirements can be challenging, and there is no one resource with all the requirements. The Retail Compliance Center (RCC) has a compliance matrix that provides an overview of state and local consumer bag legislation across the United States for both paper and plastic bags. However, because of the number of jurisdictions and frequent changes to the regulations, the RCC matrix may not be complete. Many retailers use multiple resources, as well as information reported from local stores and regional staff, to track the information.
For specific answers on the interpretation of existing or proposed plastic bag legislation, particularly at the city or county level, consider reaching out to the retail trade association in that state that may be tracking the issue. The Council of State Retail Associations has a directory of state associations. RILA also has relationships with state retail association staff and can often make an introduction. Contact email@example.com for more information.
2. Does RILA have a viewpoint on plastic bag legislation?
Yes, retailers may contact firstname.lastname@example.org for more information.
3. Is there one type of reusable bag that will fit the requirements of all plastic bag legislation?
The short answer is no. Legislation on consumer bags is set at state and local levels and, as a result, there is no "one size fits all" bag that would meet the requirements of all plastic bag legislation across the United States. While there may be some overlap with common requirements, cities and counties often develop their own unique requirements.
Common specifications for reusable bags that have been passed in plastic bag legislation include:
4. What is the most sustainable type of reusable bag?
There is no one definitive answer to this question. Retailers have noted, while looking for an ideal reusable bag, that the Life-Cycle Assessment (LCA) of different reusable bag materials (e.g. cotton, canvas, recycled PET, etc.), can vary but that the most important factor may be choosing a bag that consumers are most likely to consistently remember. This makes it hard to determine the most sustainable option for replacing single-use plastic bags.
Moreover, the most sustainable bag material as identified by an LCA may not be the bag consumers are most likely to view as more sustainable, be the least environmentally harmful should it become litter, or be most likely to be properly recycled, depending on local infrastructure.
If reusable bags of a thicker plastic are chosen, companies have noted that it is beneficial for a bag to clearly indicate that it is reusable otherwise consumers may treat it the same as a thin plastic single-use bag.
Retailers are encouraged to consider what factors are driving their reusable bag strategy and their desired outcome to determine the right bags to offer.
5. Are compostable bags a sustainable alternative to plastic bags?
There are significant challenges associated with replacing traditional plastic bags with compostable carry-out bags. Compostable bags often require an industrial-level composting facility and high temperatures to decompose correctly – conditions not available in landfills. Few jurisdictions have these industrial facilities and it can be costly to ship bags to facilities. If compostable bags become litter, they pose the same environmental challenges as traditional plastic bags. And if consumers put compostable bags in with other plastic bags at in-store drop-offs, the compostable material can contaminate film plastic recycling streams.
6. Are paper bags a sustainable alternative to plastic bags?
Paper bags are biodegradable and more practically recyclable than traditional plastic bags. However, producing paper bags requires significant amounts of water, energy and trees. Key elements to the level of sustainability of a paper bag are the sourcing (i.e., from sustainably managed forests and made with recycled content), if the bags are reused, and if they are recycled or composted versus landfilled.
7. Do any closed-loop programs exist for plastic bags?
Closed-Loop recycling refers to the collection of post-consumer waste that is collected, recycled and made into new products. There are several closed-loop programs that have been developed for plastic bags. A few examples include:
8. How do we increase customer use of reusable bags at our retail locations?
One of the most common barriers to customers not using reusable bags is leaving them in the car. Some retailers use 'don't forget your reusable bags'-type signage in key areas of the store (by the entrance, on carts, etc.) in addition to selling them in store. Other tactics include:
The Retail Council of Canada partnered with British Columbia to produce resources to help reduce the distribution of single-use shopping bags.
9. How can I start a plastic bag recycling program?
In some states, legislation requires retailers to take back and recycle plastic bags. Other retailers participate in take-back programs voluntarily to increase waste diversion. One challenge is that plastic film can generally not be mixed with other plastic recycling as it gets caught in the equipment so retailers must find a film recycler to take the material. The Flexible Film Recycling Group (FFRG) has a list of potential recyclers. Plastic film recycling not only includes thin-plastic bags, but other polyethylene (PE) packaging such as:
The American Chemistry Council provides information on how thin plastic material is recycled. Often the plastic material collected through these take-back programs can be recycled into several products, such as small pellets which are used to make new bags, containers, crates, etc. Question 7 provides more information on closed-loop recycling programs.
10. Can all plastic be recycled together?
No. Various plastics are used in the retail space that each have different recyclability, chemical properties and applications. The American Chemistry Council provides an overview of the 7 major plastics that exist, their functionality and use. To determine the recyclability of certain plastics, consult with the local municipal recovery facilities (MRFs) that would handle the material.
Kaela Martins, Manager, Environmental Programs
Thanksgiving is right around the corner and while grocery retailers are stocking up on the holiday classics, they are also bracing for the holiday food waste. The RCC has several resources to help retailers understand waste related regulations and opportunities around reducing food waste.
First and perhaps most important, is for retailers to implement effective programs to ensure compliance with regulations and company policies. Second is to set goals around waste reduction and diversion. Your compliance program can also help you achieve your waste management goals. The RCC has two tools to help retailers evaluate and implement compliance programs. First is the RILA Retail Advisor: Environmental Compliance. This platform helps retailers evaluate and benchmark their compliance programs, including solid waste. The RCC also has guidance and tools on Environmental Management Systems (EMS) for retail. Even if you are not implementing an EMS, the tools can help with program evaluation and gap analysis.
The RCC also has information on regulations that relate to food and related solid waste. The RCC Solid Waste Page covers food waste, and the RCC pages on environmental regulations that apply to grocery stores and food service and prepared foods have additional information on food and related waste. For more detailed information on organics regulations, including requirements in some jurisdictions for food diversion, consult the Mandatory Organics Fact Sheet or watch our past webinar on Organics Recycling regulations.
To stay up to date on organic waste regulations, sign up for RCC Alerts, our monthly email that touches on the latest topics in environmental compliance in retail.
Do you ever wonder how your environmental compliance program compares to other companies? Do you wonder if you are under or over managing elements of your program? For retail environmental compliance managers, these questions are top of mind every day. As a trade association representing the largest retailers in the US, we know there is great value in understanding the answers.
That's why we developed the RILA Retail Advisor: Environmental Compliance. The Advisor is a web-based platform that lays out the framework for a retail-specific environmental compliance program and offers guidance on advancing your program, informed by your company's specific needs and goals. The Advisor now includes peer benchmarking so that companies can evaluate their program across the industry.
The Compliance Advisor maps a retail environmental compliance program across four levels, each reflecting an increasingly centralized and optimized program. In viewing the framework on its own, companies can see what elements differentiate the program levels, for example programs focused purely on compliance from those focused on environmental performance and moving towards sustainability. When companies input their specific company data, they can design an optimum program based on their compliance obligations, operations, level of risk, and corporate culture. With the peer benchmarking feature, they can compare their program to companies with a similar profile. For example, based on the level of regulations that would typically apply, a stand-alone store with grocery or gas would have more regulatory requirements than a small store located in a mall.
In short, the Retail Advisor offers an innovative approach to evaluating a company's environmental compliance program, comparing it with other retail programs, gaining a holistic view of the industry at large, and identifying specific opportunities to advance your program and optimize resources.
Implementing the right program can reduce the risk of non-compliance, which can be both monetary and reputational, and help companies set goals to reduce risks and improve company performance. Conversely, implementing an overly comprehensive program can waste resources without improving performance. Using the Retail Advisor helps you start the discussion of where your program should be.
The Retail Advisor is free and open to all retailers. To get started, fill in the registration form to create your account and get access to the Retail Advisor. For more information, visit the RILA Retail Advisor: Environmental Compliance page. If you have questions, contact Tiffin Shewmake at email@example.com.
Three years after being signed into law, compliance deadlines for the California Cleaning Product Right to Know Act are quickly approaching. The main purpose of the October 2017 Act is to require manufacturers of cleaning products to disclose ingredient information of designated products on the product label and the manufacturer's website.
The deadlines for The Act are:
Designated products that do not have the appropriate disclosure by the required deadline are not eligible for sale in the State of California.
The EPA's Pharmaceutical Waste Rule (Also known as the Pharm Rule) took effect this past August. However, in most states, the rule must be adopted through state-level processes before it becomes effective. States are not required to adopt the Amendment to the P075 Listing for Nicotine as it is considered less stringent. This makes keeping track of where the rule is effective confusing. To help, the RCC has developed two new tools to track key dates and information on state implementation.
The Pharm Rule tracking matrix will be available on the new RCC website, and include publication dates, public hearing dates, comment periods and meeting notices, changes to nicotine regulations, and variations between state and federal regulations. In the interim, we are publishing a pdf document of this information.
We have also developed an interactive map showing state rulemaking status and estimated adoption dates.
Ensuring compliance in California with environmental regulations is challenging. The state has a confusing structure of multiple regulatory jurisdictions that can result in variability in the regulations, interpretation and enforcement. This structure is especially difficult for retailers who operate in numerous locations. In addition, California has not been shy with enforcement, leading to multimillion-dollar settlements against retailers, the largest of which are related to hazardous waste management.
To develop effective compliance programs, retailers need to understand both the environmental regulations that apply to retail operations as well as the universe of state regulatory agencies and responsibilities. To help, the RCC has developed a fact sheet on the California Regulatory Structure for Retailers. A brief look at the California regulatory structure is below, the fact sheet provides a more detailed look at the agencies, their responsibilities, and key regulations.
The California Environmental Protection Agency (CalEPA) is a Cabinet level agency with a mission to "restore, protect and enhance the environment, to ensure public health, environmental quality and economic vitality." CalEPA departments and regulatory programs most relevant to retailers include:
Another relevant agency is the Office of the State Fire Marshal (OFSM), which assists the Hazardous Material Management Plan (HMMP) and the Hazardous Materials Inventory Statement (HMIS) programs.
Perhaps the most visible entity for retailers are the Certified Unified Program Agencies (CUPA). CalEPA oversees the California Unified Program, which gives authority to the CUPAs for permitting and enforcement for several programs that are relevant to retailers. These areas include petroleum storage tanks, accidental release programs, Hazardous Materials Plan and Inventory statements, and hazardous waste generators. Each California county is required to have a certified CUPA but other cities or local agencies such as fire departments, may also request CUPA certification.
The CUPAs are where "the rubber meets the road" as they are the agencies that permit and inspect facilities for the areas listed above. CUPAs can implement enforcement actions for non-compliance or refer enforcement matters to county district attorneys, state-level agencies or the U.S. Environmental Protection Agency. The annual CUPA conference is an opportunity for regulated entities to meet and hear from CUPA regulators.
Key California Environmental Regulations for Retailers
The RCC Fact Sheet also covers key environmental regulations that can apply in retail operations such as:
Retailers need to be aware of the requirements for these areas, at the state but also frequently at the local level as well keep track of changes or new programs.
After reading the California Regulatory Structure for Retailers Fact Sheet, visit the RCC website for additional resources on regulations and program management.
EPA's new Pharmaceutical Waste Rule is almost here but not everywhere at the same time. Federally, the rule goes into effect on August 21st and on that date, the prohibition on sewer disposal of hazardous waste pharmaceuticals will apply in all states. However, this is not the case for the rest of the rule as each state is different is how they adopt federal hazardous waste rules.
In some states, the rule will be in effect on August 21st, while others may take until 2022. States are not required to adopt the nicotine related amendments that makes nicotine replacement therapies such as gums and patches nonhazardous, as this is considered less stringent than the current rules. (Note that this does NOT include other types of nicotine products such as e-cigarettes and related cartridges and vials, and prescription nicotine.)
On August 21, the rule will be in effect in states that don't manage their own waste programs or that adopt the federal rules by reference. These jurisdictions are:
In North Carolina, the amendment regarding nicotine will be in effect on August 21st while the rest of the rule will need to be adopted, which can take up to a year.
The Retail Compliance Center will be tracking state adoption of this rule. This tracking matrix will include information on publication dates, public hearing dates, comment periods and meeting notices, and variations between state and federal regulations.
For notification when this tool is launched, sign up for RCC Alerts.
Just this summer, Oregon and Delaware passed bans on the distribution of single-use consumer bags within retail stores. They are the latest in a growing number of states and municipalities with consumer bag legislation, with many others on the brink of joining. During this exciting time for environmentalists, however, it is becoming harder to keep track of who has consumer bag legislation on the books as ordinances continue to roll in; a task made more difficult as some jurisdictions keep changing their minds about consumer bag legislation or finding other issues with their bans.
For example, Homer, Alaska passed a ban on plastic bags in 2012, then rescinded it, just to put it back on the ballot again this year. In North Carolina, the state recently overturned local consumer bag bans in beach-side communities in the Outer Banks- bans that had been in place for 8 years. This year, the State of Colorado noticed that a 1993 statute related to recycling actually banned municipalities from banning plastic bag bans. In the 26 years before the ban on bag legislation resurfaced, ten municipalities had enacted local consumer bag legislation, unaware or keeping quiet that they were violating state regulations.
Within all this swirling legislative change, the Retail Compliance Center is attempting to help retailers know up from down. We have compiled an ever-growing list of states and municipalities that have consumer bag legislation, broken down into key provisions. An actively updated consumer bag legislation matrix will be available on the RCC website in September; in the interim, we are providing a summary of legislation updated as of July. The summary outlines statewide consumer bag legislation, including bag bans, a ban on bag bans, and/or a fee. Also included are the types of bags allowed, as well as specifications for the allowable bags.
To stay up to date on bag bans, sign up for RCC Alerts, our monthly email that touches on the latest topics in environmental compliance in retail.
Kevin Gibney, Coordinator, Environmental Programs and Retail Compliance Center
Effective August 1, 2019, retailers in Connecticut must charge a $0.10 fee for every single-use plastic bag provided to consumers. The bag charge is followed in 2 years by a prohibition, starting June 30, 2021, on retailers providing single use plastic bags. This new requirement was included in the 580-page budget that was passed Monday July 1, 2019 by the Connecticut General Assembly, making Connecticut the fifth state to enact statewide legislation regarding plastic bags. The bag requirements, in Section 355 of House Bill No. 7424 Public Act No. 19-117 can be found starting on page 532.
Under the legislation, a "single-use checkout bag" is defined as a plastic bag with a thickness of less than four mils that is provided by a store to a customer at the point of sale. It does not include: (A) A bag provided to contain meat, seafood, loose produce or other unwrapped food items; (B) a newspaper bag; or (C) a laundry or dry-cleaning bag.
The legislation does not prevent municipalities from enacting or enforcing local single-use plastic bag related ordinances, as long as the local ordinance is at least as stringent as the state requirements. Municipalities are also free to enact ordinances related to checkout bags made of paper.
To stay up to date, sign up for RCC Alerts, our monthly email that touches on the latest topics in environmental compliance in retail.
In 1976, the top single was Silly Love Songs by Paul McCartney and Wings, mood rings were serious jewelry and the Resource Conservation and Recovery Act (RCRA) was signed into law. A lot has changed since then. For RCRA, this includes some recent rule changes with major implications for retail. The RCC has information on these changes including a section on the Hot Topics Page with links to proposed and new rules, plus blog posts on the specific changes.
Major changes that will impact retail are listed below.
On April 2, 2019, the EPA proposed numerous changes to the ignitability characteristic under RCRA. While mostly technical in nature, some aspects for the proposed rule could result in additional wastes to be classified as hazardous, which could increase hazardous waste volumes for some retailers (This article by Beveridge & Diamond has detailed information on the proposed changes). The Retail Industry Leaders Association and the National Association of Chain Drug Stores submitted comments on behalf of their members opposing proposed changes that increase the burden on retail but are not necessary to protect human health or the environment.
On August 21, 2019, the Pharmaceutical Waste rule (Pharm Rule) will set new federal standards for retailers and others defined as healthcare facilities to manage hazardous waste pharmaceuticals. Big news for retailers in the new rule is the exclusion of FDA-approved nicotine replacement therapies (patches, gums, lozenges) from the P075 acute hazardous waste listing. Other changes that may impact retail include the prohibition on sewer disposal of hazardous waste pharmaceuticals, and new rules around the management of waste pharmaceuticals. The sewer prohibition is effective across the country on August 21, 2019. The other elements are only effective in August for the states and territories where EPA manages the hazardous waste program – Iowa, Alaska, Indian Country, and US Territories (except Guam). For other states, the rules will be effective as the states adopt them and there could be variations from the federal rules.
The RCC Blog has several articles with more information including Pharm Rule- Key Provisions for Retailers and Hazardous Waste Pharmaceuticals – Regulatory Amendment Update for Retailers. The RCC will also be posting information on the status of state implementation. Sign up for RCC Alerts to be notified when this new resource is launched.
Hazardous Waste Generator Improvements Rule
On October 28, 2016, the Hazardous Waste Generator Improvements Rule was finalized. According to EPA's fact sheet on the rule, these changes provide increased flexibility for some generators, such as very small quantity generators (VSQGs), improve environmental protection with changes to emergency planning and revised labeling requirements, and clarify inconsistent guidance. The rule also reorganizes the regulations to consolidate them in one place and replace cross reference lists.
The RCC is tracking state adoption of this new rule on the Hazardous Waste Generator Improvements State Tracking Matrix.
On March 16, 2018, the EPA proposed a rule to add hazardous waste aerosol cans to RCRA's universal waste program, which several state programs, such as California and Colorado, already allow. Once finalized, the hope is that this rule will provide establishments, including retail, with a clear, protective system for managing discarded aerosol cans. A previous RCC article highlights why retailers have been supporting this rule adoption for years. The comment period closed on May 15th, and we should have a resolution on the immediate horizon.
To keep up with the latest news on the aerosol rule, visit the RCC hot topics page, which has a section about this proposed rule.
The RCC website has more information on these changes including a section on the Hot Topics Page with links to proposed and new rules, plus blog posts on specific changes. To stay up to date, sign up for RCC Alerts, our monthly email that touches on the latest topics in environmental compliance in retail.
The US Environmental Protection Agency (EPA) recently passed amendments to its hazardous waste regulations. These new rules, found at 40 CFR 266 Subpart P, apply to the management and disposal of pharmaceutical waste by healthcare facilities. The intent of the new rules is to provide a framework that is more efficient and effective for the healthcare sector, while still being protective of the environment and human health.
Healthcare facilities impacted by the new rules include some types of facilities commonly found in retail. These include health clinics, optical providers, pharmacies (including long-term care and mail-order pharmacies), and retailers of pharmaceuticals. The rules generally do not apply to pharmaceutical manufacturers.
The new Subpart P rules define pharmaceuticals to include prescription drugs, dietary supplements, over-the-counter drugs, homeopathic drugs, compounded dugs, investigational new drugs, electronic nicotine delivery systems (like vape pens, e-cigarettes, and their cartridges and refill vials). The rules also apply to residual pharmaceuticals remaining in containers or contaminating personal protective equipment (PPE) like gloves, and to materials used to clean up spills of pharmaceuticals. The rules do not apply to dental amalgam, sharps, or medical waste – which are covered under other rules at the federal and state levels.
The new rules focus on three main concepts that impact healthcare facilities:
Note that there are other aspects of the new Subpart P rules that apply to reverse distributors and are not discussed here.
The prevention on sewer disposal of hazardous waste pharmaceuticals was issued under the authority of the Hazardous and Solid Waste Amendments and is effective in all states on August 21, 2019. EPA has long discouraged sewer disposal of pharmaceuticals, but this rule makes it illegal for healthcare facilities and reverse distributors to put hazardous waste pharmaceuticals into the sewer system (such as discharging syringes into a sink or flushing pills down a toilet). EPA continues to discourage sewer disposal of pharmaceuticals that are not hazardous waste, and some states and municipalities have banned this as well.
In the past, EPA has required the management and disposal of nicotine patches, gums, and lozenges – and the containers and packaging associated with these items – as acutely hazardous waste (waste code P075). This has been challenging for the healthcare industry because there are very low thresholds for the generation and accumulation of acutely hazardous waste. With the new rules, EPA has determined that FDA-approved over-the-counter nicotine replacement therapy products no longer need to be managed as acutely hazardous waste. Patches, gums, lozenges, and their associated packaging can be disposed of as non-hazardous waste (i.e., municipal solid waste or trash). Other types of nicotine products, such as e-cigarettes and their associated cartridges and vials, prescription nicotine, pesticides containing nicotine, and nicotine used in research and manufacturing must still be managed as acutely hazardous waste (waste code P075). This portion of the new rules only applies in states and territories where EPA manages the hazardous waste program – Iowa, Alaska, Indian Country, and US Territories (except Guam) – on August 21, 2019. Other states have to adopt the changes before they are effective.
Finally, the new Subpart P rules provide a new framework that healthcare facilities can use for managing and disposing of waste pharmaceuticals. Facilities must either determine if individual waste pharmaceutical products are hazardous or non-hazardous, or they can opt to manage all of their waste pharmaceuticals as hazardous waste. The framework considers "potentially creditable," "non-creditable," and "evaluated hazardous waste" pharmaceuticals.
The new management framework only applies in states and territories where EPA manages the hazardous waste program – Iowa, Alaska, Indian Country, and US Territories (except Guam) – on August 21, 2019. Other states will have to adopt the changes before they are effective, and each state may choose to make certain modifications or adjustments to the Federal rules.
For more information, visit the US EPA's webpage on the new rules:
Further information can be found on the RCC website through the links below: http://www.retailcrc.org/RegGuidance/Pages/blog.aspx?i=35
EPA's new rule for managing hazardous waste pharmaceuticals (84 Fed. Reg. 5816, Feb. 22, 2019) starts going into effect on August 21, 2019. The rule creates new standards for retailers and others defined as healthcare facilities to manage hazardous waste pharmaceuticals ("HWP"), including prescription and over-the-counter (OTC) drugs for humans and animals, dietary supplements, and e-cigarette liquids.
The rule also excludes FDA-approved OTC nicotine replacement therapies (e.g., patches, gums, lozenges) from the P075 acute hazardous waste listing. This nicotine exclusion is significant because many retail stores may have been classified as large quantity generators ("LQG") and subject to onerous regulations based on the generation of only 1 kg (2.2 pounds) of such nicotine wastes in a single month. In other words, OTC nicotine replacement therapies will no longer be considered hazardous waste by EPA, although, as described below, states are not required to adopt this part of the rule.
While the new management standards for HWP eventually will go into effect in all states (see discussion of timing below), states are not required to adopt the nicotine exclusion or other "less stringent" parts of the rule. The result could be a patchwork of state adoption of the nicotine exclusion and a challenging compliance landscape for retailers.
Key Provisions of Pharmaceutical Rule
In addition to the specific rule changes listed above, in the preamble to the final rule, EPA discusses its policy on reverse logistics for all unused/returned consumer products (not only pharmaceuticals) and under what circumstances those products would become subject to regulation as hazardous wastes.
Timing of Implementation
The sewering ban goes into effect in all states automatically on August 21, 2019, regardless of whether the states have taken action. (EPA adopted the sewering ban under its HSWA authority.)
The entire rule (including subpart P and the nicotine exclusion) goes into effect on August 21, 2019 in Iowa, Alaska, Puerto Rico, and any states that automatically adopt EPA rules (e.g., New Jersey, Pennsylvania).
Other states must adopt the "more stringent" provisions before they become effective in those states, including the new HWP management standards in Subpart P. However, it is optional for the states to adopt the "less stringent" provisions, including the nicotine exclusion. States are taking a range of approaches to adoption. Ohio has announced that it will begin a rulemaking process to adopt the new EPA rule, specifically seeking comment on whether Ohio should adopt the "optional provision" excluding FDA-approved OTC nicotine replacement therapies. North Carolina has announced plans to adopt the new rule and to allow companies to take advantage of the nicotine exclusion prior to the state adopting the full rule. Minnesota has announced plans to phase in the various requirements of the new rule, with the nicotine exclusion to be effective immediately. Other states either have initiated or will be initiating rulemaking processes in the near future.
Aaron Goldberg, Partner, Beveridge & DiamondElizabeth Richardson, Partner, Beveridge & DiamondBeveridge & Diamond PC- The Environmental Law Firm
As consumers increasingly turn to e-commerce, retailers with physical stores are developing new strategies to compete against online marketplaces. What’s often missing from the conversation is the advantage that retailers gain by incorporating circularity into their business model, for example through customer-facing takeback programs. Brick and mortar stores can offer an immersive retail experience that no e-commerce platform can match by engaging customers in a cause, and infusing meaning into the store trip by providing customers with relevant recycling solutions.
It's no longer gossip, EPA has really released the final RCRA Pharmaceutical Waste rule (affectionately known as the "Pharm Rule"). The pre-publication copy can be found here. A few highlights that are relevant for retail are listed below.
As a quick reminder, this rule sets standards for the handling of hazardous waste pharmaceuticals. This rule applies to healthcare facilities and reverse distributors that "generate and manage hazardous waste pharmaceuticals" and not to pharmaceutical manufacturers. The term "healthcare facility" is fairly broad and in addition to treatment facilities it includes "any person that is lawfully authorized to … distribute, sell, or dispense pharmaceuticals, including over-the-counter pharmaceuticals, dietary supplements, homeopathic drugs, or prescription pharmaceuticals." As a result, health clinics and retailers of pharmaceuticals are affected by the rule.
EPA did not go forward with its proposal to classify all pharmaceuticals sent by a healthcare facility (the definition of which includes many retail facilities) to a reverse distributor as wastes starting at the healthcare facility. While EPA did finalize this approach for prescription pharmaceuticals, it reaffirmed that non-prescription pharmaceuticals and other retail items managed by a reverse logistics center are not wastes at a retail store if they have a reasonable expectation of being legitimately used/reused or reclaimed.
The new requirements are in 40 CFR Part 266, Subpart P – Management Standards for Hazardous Waste Pharmaceuticals and Amendment to the P075 Listing for Nicotine.
EPA acknowledged common sense by excluding "patches, gums and lozenges that are FDA-approved over-the-counter nicotine replacement therapies" from the P075 acutely hazardous listing in the final rule. Importantly, the Agency did not re-classify these items as non-acutely hazardous wastes, but rather excluded them from RCRA regulation entirely.
However, this exclusion from RCRA does not include e-cigarettes, e-liquids, or prescription nicotine replacement therapies.
Close up your drains because EPA finalized the prohibition on sewering hazardous waste pharmaceuticals. While drain disposal of non-hazardous pharmaceuticals are not covered by this ban, EPA discourages this practice. Traces of medicines are turning up in streams and lakes and the impact that drain disposal will have on the ecosystem and human health is still unknown.
The final rule will be published in the Federal Register in the coming weeks (could that be delayed because of the partial government shutdown?) and will become effective at the federal level six months after publication. The prohibition on sewering will take effect in all states at that time.
However, the rest of the rule will generally not become effective in the states until they act to adopt the rule (except for states like Iowa and Alaska that do not have their own authorized hazardous waste programs, or states like New Jersey and Pennsylvania that automatically incorporate new federal hazardous waste rules). All authorized states must eventually adopt the rule as EPA is taking the position that Subpart P, as a whole, makes the federal program more stringent than before (even though there are some less stringent elements). However, because the new exclusion for nicotine patches, gums, and lozenges is a less stringent provision, states will not be required to adopt that exclusion.
For useful links on Changes to RCRA, visit the CRC Hot Topics Page. To stay up to date on this and other regulatory changes, sign up for CRC Alerts.
Wasted food is costly for your company, the environment and consumers. The 130 plus billion pounds of food thrown out in the U.S. every year is worth over $161 billion and contributes to greenhouse gas emissions (decomposing food in landfills generates methane), as well as negative impacts from farming including pesticides, energy use and water pollution, transportation and refrigeration. Plus, what was once considered solely a sustainability issue is now turning into a compliance issue as jurisdictions are starting to ban organic waste or require composting.
Retailers are key to reducing food waste because they are involved in some aspect in the entire flow of food from producers to retail operations to customers. Many retailers are stepping up to the plate to reduce waste, here are some of the top actions that your company can take to reduce waste.
1. Be Transparent: report on waste and your efforts, and consider setting public waste reduction goals
Corporations often shy away from setting public goals, it's too easy for missed goals to generate negative press. But this has not stopped mega-retailers, Ahold Delhaize, Kroger and Walmart from setting aggressive food reduction targets. Public goals signal a company's commitment and the support of their leadership. It also helps internally to keep attention and resources focused on the issue. Why, even the U.S. has a public food reduction goal-- to reduce food loss and waste by half by 2030 (to align with Target 12.3 of the UN Sustainable Development Goals).
Did you know that if food waste was a country, it would take third place behind the U.S. and China in contribution to climate change? This means that food reduction (under Scope 3 emission) can help you achieve your greenhouse gas reduction goals, the proverbial two birds with one stone approach.
2. Join your Peers
Coalitions and organizations can create momentum around an issue, achieve greater results than companies acting alone, and help implement industry-wide solutions. Member companies can also get resources and tools to help them solve challenges and receive positive recognition for their efforts. Groups may set national goals for their industry, ask members to make commitments, provide education, or conduct research and policy development. Examples include ReFed – a stakeholder driven nonprofit that is analyzing food waste to identify the most effective solutions, the Consumer Goods Forum Food Waste Initiative with a commitment to "halving food waste by 2025" and the Champions 12.3 executive coalition focused on "accelerating progress toward achieving SDG Target 12.3 by 2030."
3. Implement or turbo charge your waste reduction programs
If you don't have a strong program for reducing food waste or you are not sure if your current efforts are working, now is the time to get moving. A good program can not only reduce food waste and greenhouse gases, it can save money and help build a positive reputation. In other words, a good program is a win-win for your company, your customers, and the planet. Now that's triple bottom line thinking!
There are many resources for getting started or optimizing your program. The U.S. Environmental Protection Agency's Food Recovery Hierarchy can help guide your thinking. The Center for Retail Compliance (CRC) also has links resources on the CRC Waste Page. It may help to look at your operations through the lens of the circular economy. For more information about building an economy that is "restorative and regenerative" visit the Ellen MacArthur Foundation for information, resources and inspiration.
Don't forget that your vendors are a valuable resource. They see challenges and solutions across many companies and can be part of a solution.
4. Don't forget your customers
Another bad statistic--U.S. consumers throw out about one pound of food per person per day. As a retailer, you are in a unique position to help your customers reduce this waste and save money. Efforts like improving packaging and food date labeling and education on the issue can help reduce consumer food waste. With consumer's purchasing decisions increasingly influenced by sustainability factors, efforts to help them reduce food waste can improve customer relationships and loyalty. (World Resources Institute, Can Reducing Food Waste Solve the Customer Loyalty Problem?)
The CRC Retail Sustainability Leadership Model can help you design and implement your overall sustainability program. The CRC Waste Page has more information and resources on food waste.
Tiffin Shewmake, Center for Retail Compliance
On January 1, 2019, businesses in California – including retailers – that generate at least 4 cubic yards of commercial solid waste will become subject to the state’s mandatory organics recycling program, run by CalRecycle. This program requires covered businesses to recycle all of their organic waste. Certain retailers, for example most grocery chains, already are subject to the program as generators of more than 4 cubic yards of organic waste, and many local jurisdictions have already rolled out implementation and enforcement programs. Nevertheless, as smaller and more types of retailers become subject to the program in January 2019 and as local jurisdictions are forced to expand their programs to incorporate an increased number of regulated businesses, many questions will need to be answered and retailers can expect additional regulatory complexity and scrutiny to the already multi-layered environmental regulatory framework in California.
Angela Levin, Troutman Sanders
In July 2015, the U.S. Environmental Protection Agency published major revisions to the federal underground storage tank (UST) regulations under 40 CFR Part 280 to:
The revised federal rules affect UST owners and operates differently based on the state where the facility is located and whether that state has received state program approval (SPA) under 40 CFR Part 281. In SPA states, owners and operators must continue to follow their state requirements until the state changes its requirements or until the state's SPA status changes. In non-SPA states, owners and operators must meet the federal requirements according to the schedule described below.
While many of the new federal UST requirements have been in place for several years, additional requirements will become effective on October 13, 2018. The new requirements include:
Information on the new federal requirements is available at https://www.epa.gov/ust/revising-underground-storage-tank-regulations-revisions-existing-requirements-and-new.
Melissa Krah, Mabbett & Associates Inc.
Not only must retailers who operate across the U.S. follow federal and state environmental regulations, they must also follow any applicable county-level regulations. Knowing just how difficult it is to identify and track regulations at the county level, we created a pilot county-level regulatory search feature to help you find pertinent environmental regulations.
This fourth article on the dimensions of
The Compliance Leadership Model (CLM) is focused on the processes and tools that underpin an effective compliance program.
Today we are looking at the dimensions related to
Compliance Support Systems.
Find out in a
free webinar May 9th from 1-2:30 pm EST.
Tiffin Shewmake, Center for Retail Compliance
This is the third article on the dimensions of the
Compliance Leadership Model (CLM). The previous two covered the elements that underpin an effective compliance program such as processes for understanding legal requirements, defining the scope of the program and getting support from top management. This article focuses on the compliance programs for specific regulatory areas or as you may think of it – where the rubber meets the road.
Today we are looking at the third dimension,
Operations are where compliance requirements are implemented and where non-compliance can occur. This is an area where companies can use analysis to reveal potential risks and find opportunities to reduce this risk and improve compliance performance. It is also where companies can move beyond compliance to improve environmental performance and show leadership in more sustainable operations.
The key to an optimal program is to match the dimension level with the company's operations, risks, goals and culture. The process of deciding which programs are best implemented at the Essential Level and when they should be at the Structured or even Proactive Level, helps companies identify risk and use their resources where they and the environment will get the most benefit and best results.
Sub-dimension 6 |
Store and facility operations
Written Standard Operating Procedures (SOP) help companies maintain compliance, minimize risk, and promote consistency over different facilities and over time. All organizations should have some written SOPs to explain what needs to be done to stay in compliance. Across the program levels, SOPs become more comprehensive and detailed. SOPs at the Essential and Structured levels focus on compliance, while at the Optimized and Proactive levels, they are also used to prevent environmental harm and encourage more sustainable thinking.
Sub-dimensions 7-13 |
Individual Compliance Programs
The next 7 sub-dimensions cover specific regulatory programs that apply in retailer. The program areas are:
These program levels follow a progression related to how the company structures their program around areas such as corporate guidance, data and risk analysis, improving environmental performance and incorporating sustainability. At the Essential Level, facilities have the primary responsibility for identifying and complying with regulations, overseeing contractors and generally managing the program. For many retailers, this may be the optimum approach for some or all of their compliance programs. For example, a company with only a few facilities with drinking water wells probably does not need a comprehensive drinking water program across the entire company. Remember, this does not mean that top management in these companies is not involved or responsible, just that more of the program responsibilities are at the facility level.
Other companies may find that moving to the Structured Level makes sense, especially for areas such as waste management that applies to all facilities or for areas with higher risk such as tank management. At this level, the corporation provides guidance and training to all facilities. The focus is on compliance with regulations, and companies generally do not consider environmental impacts. Depending on the level of risk and complexity of the area, this may be the most appropriate approach.
Companies at the Optimized Level start to look at how to reduce regulatory risk and compliance obligations. They analyze data to identify activities or situations that may lead to non-compliance, to promote continuous improvement of performance, and, where possible, to reduce or eliminate obligations. Companies at this level also start considering environmental impacts. For example, a company may decide to replace or upgrade refrigeration beyond basic compliance requirements in order to achieve environmental benefits such as energy savings or less environmentally harmful refrigerants.
Companies at the Proactive Level are looking to go beyond compliance to get positive environmental and company benefits from their compliance programs. They may set ambitious goals for zero waste facilities, no stormwater runoff or programs to reduce the number of potentially harmful chemicals in their products. In some cases, these goals can reduce or even eliminate compliance obligations, while other goals may fulfill a corporate strategy of showing leadership in a particular area. Characteristics of this level include taking a proactive view of environmental performance, one that goes beyond compliance and looks along the entire value chain.
Next month we will look at
Compliance Support Systems.
Tiffin Shewmake, Center for Retail Compliance
This is the second article on
The Compliance Leadership Model (CLM) dimensions. The CLM is a framework designed to help retailers optimize their environmental compliance management and performance. Previous articles
introduced the CLM and the first dimension
Context of Compliance.
Find out using EPA's Recommendations of Specifications, Standards, and Ecolabels for Federal Purchasing
While there is significant consumer demand for environmentally preferable products and services, the exact definition of what constitutes environmental preferability is not always clear. This can make it hard for retailers to identify green products. One solution is to look for products with some type of environmental standard or ecolabel. Easier said than done. There are hundreds of private sector standards and ecolabels claiming to validate environmental and human health benefits of products and services and the credibility and effectiveness of these standards and ecolabels varies widely.
Fortunately, the EPA's Environmentally Preferable Purchasing (EPP) Program has just launched a new tool, EPA's Recommendations of Specifications, Standards, and Ecolabels for federal purchasers that can also help retailers make sense of these labels and certifications.
EPA has three ecolabels. The ENERGY STAR and Watersense labels provide information on energy and water efficient products. The SaferChoice ecolabel identifies products that contain safer chemicals. In addition to these labels, the EPP Program Recommendations cover 21 product categories and 40 private sector standards, ecolabels, and certifications. Many key purchase categories are addressed, such as cleaning products, building/construction materials, and electronics.
The federal government is using these Recommendations for its procurement decisions, to bring clarity to the market, promote environmentally sustainable products, realize lifecycle cost savings, and increase U.S. industry competitiveness. Retailers can maximize these benefits – and meet growing customer expectations - by sending a consistent message in support of credible and effective sustainability standards and ecolabels.
Tiffin Shewmake, Center for Retail Compliance
The Compliance Leadership Model (CLM) framework helps retailers optimize their environmental management programs. The six CLM dimensions define a comprehensive environmental compliance program. For each dimension, there are 4 levels with the first “Essential” level including the elements of a basic compliance program. Across the levels, programs are increasingly more integrated, include more analysis for optimization and risk reduction, and a greater focus on environmental impacts and sustainability. The optimum level for a retailer depends on the company’s operations, regulatory obligations and risk, and corporate culture. The CLM is described in more detail in a previous article.
EPA's latest Regulatory Agenda contains updates to some items that are directly relevant to retail. Below is a summary of the most pertinent updates:
Management Standards for Hazardous Waste Pharmaceuticals: The projected date for publication of a Final Rule has been postponed by one month to July 2018. Read notice.
Modernizing Ignitable Liquids Determinations: A proposed rule to update flash point test methods for the determination of characteristically ignitable hazardous waste is still scheduled for publication in August 2018. However, the notice no longer states that the proposal will include provisions to narrow the exclusion for aqueous wastes with less than 24% alcohol. Instead, it now states that "the proposal may be used to take comment on the alcohol exclusion for ignitable aqueous alcohols and whether a revision is necessary to improve existing waste management practices." This is a win for retail, as the number of products retailers would have to manage as "ignitable" increases greatly should the current exclusion be narrowed. Read notice.
Increasing Recycling: Adding Aerosol Cans to the Universal Waste Regulations: A proposed rule to classify hazardous waste aerosol cans as a "universal waste" is still scheduled to be published in April 2018. Read notice.
Larry Corkey, Manager, Center for Retail Compliance
Thank you to Beveridge & Diamond for highlighting these updates.
For retail’s community of sustainability executives, communication is key. Corporate sustainability programs grow out of customer, shareholder, and employee values, so naturally these groups expect to see regular updates on what the company is up to. With so many companies talking about their programs, a variety of organizations are attempting to streamline external reporting and recognition, to more easily track progress and showcase leadership. For a retail sustainability executive, understanding what’s available can be overwhelming.