Hazardous waste management has been a hot topic for the retail sector over the past ten years as we have seen massive penalties and fines paid out ($27M by Home Depot, $11M by Autozone, $16.57M by Walgreens, and $7.4M by Target). For transporters, there have been some penalties (e.g. Fedex Ground $3.4M) but as shared by Dana Palmer, Partner at Allen Matkins, on our latest Coffee & Compliance that sector is likely to see more enforcement activity in the coming months and years.
In 2005 and 2006, some of the district attorneys in California along with the California Attorney General started investigating hazardous materials and hazardous waste management. Per Dana that was just the start and now they have started to move up the supply chain to the shippers and transporters. The issue is that a shipment of goods shows up to a store or distribution center and some of it (e.g. a pallet) has been damaged from a forklift. Typically shippers take those goods back and depending on their contract and/or type of good (e.g. house goods or pharmaceuticals) sell as partially salveagable, dispose of for destruction, or return to the manufacturer. However, some of those damaged goods are being considered hazardous waste by the district attorneys, especially with California (non-RCRA) hazardous waste designation, and cannot be transported across state lines without proper classification and manifesting. This ends up being a gray area of what is hazardous waste, when does it become hazardous waste, and who is responsible for it.
At the federal level the US EPA released a memo with guidance specifically for the retail sector on the hazardous waste classification (EPA Memo) and references their Definition of Solid Waste Rule from 2018 to provide clarity. However, California’s definition is still unresolved unlocking a potentially expensive and risky area for both the retail sector and transportation companies.
Some of Dana’s key points:
- Returned goods transport by shippers in California can pose a risk regarding hazardous waste management
- Identifying hazardous waste and ensuring appropriate labeling, inspections, etc is critical (e.g. satellite accumulation areas)
- Enforcement agencies will do “dumpster diving” to determine mis-handling and illicit disposal of regulated hazardous waste
To hear Dana’s full take on the risks for transporters regarding hazardous waste management, you can view the webinar recording below.