Wal-Mart Stores, Inc. must pay $81.6 Million to the United States government after pleading guilty to criminal charges of mismanagement of hazardous waste. The criminal charge related to the negligent management of hazardous waste at many facilities. This is just one of several similar actions that Environmental Protection Agency (EPA) and/or state regulators have pursued against similar retail facilities for similar alleged violations (not a complete list): Walgreen Co., $16.6 Million (2012); Costco Warehouse, $3.6 Million (2012); CVS Pharmacy, $800,000 (CT, 2013) and $13.75 Million (CA, 2012 settlement); Target Corp., $22.5 Million (2011); Home Depot, $425,000 (2006) and $10 Million (2007).

The Walmart Plea Agreements for Missouri and California list six counts of violations of federal law (Resource Conservation and Recovery Act (RCRA) and Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA)):

  • Failure to make a hazardous waste determination;
  • Failure to prepare a hazardous waste manifest;
  • Offering hazardous waste to un-permitted treatment, storage, or disposal facility;
  • Failure to meet hazardous waste handling, storage, and emergency response requirements;
  • Detachment and/or alteration of pesticide labels; and
  • Distribution of misbranded pesticidal products.

The allegations included illegal disposal of various consumer products like pesticides or bleach that have been returned by customers or otherwise expired chemicals (DOJ alleged other consumer products were improperly discarded as well). The employees were allowed to discard the hazardous wastes in dumpsters or down the drain, according to DOJ. As a result of the plea agreement, Walmart must:

  • Develop and implement an Environmental Management System;
  • Add compliance resources outside the Home Office to assist and train store employees;
  • Add explicit environmental compliance requirements in job descriptions;
  • Add a supervisor position tasked with hazardous waste management responsibilities and accountabilities;
  • Develop environmental compliance information systems to track its environmental obligations at retail facilities; and more.

The Walgreen enforcement included allegations of the improper disposal of pesticides, batteries, electronic devices, over-the-counter medicines, bleach, paint, aerosols, automotive products, solvents, pharmaceuticals, and other hazardous wastes. In addition to the fine, Walgreens was placed under a five-year injunction and a very strict compliance program; including the development and implementation of an environmental management system (this is typically included in such agreements). The other cases are similar. Expired or damaged consumer products are systematically mismanaged by a retailer. The regulatory agency, whether in California, Missouri, Massachusetts, etc. discovers the violations and civil and/or criminal penalties are assessed. The government then places the company under very rigid compliance requirements. The settlements typically include the payment of money for supplemental environmental projects, which can be quite expensive as well (Walgreens paid $3.175 Million for such projects.).

EPA has discovered what it believes to be compliance vulnerabilities for such retail stores. It is important for these facilities to know how to manage its returned or otherwise expired or unusable consumer products in accordance with the hazardous waste laws. Employees must know:

  • How to determine whether a material is hazardous waste;
  • How to collect, store and ship such wastes off-site for disposal; and
  • How to meet the recordkeeping requirements for the hazardous waste regulations (not to mention the Hazardous Material shipping regulations).

It is simply too easy for employee ignorance to lead to the situations discussed above. Training of employees is critical to meet the regulatory requirements. It is wise for any retailer managing consumer products to ensure that its policies fully cover the proper disposal of returned and expired materials.

For more information on environmental concerns:   

Construction Law Update 2013, New Developments In Environmental Law and Regulation chapter, Aspen Publishers, May 2013, (includes a section on vapor intrusion) available at http://www.aspenpublishers.com/

Cleaning Up Our Act: New Developments in Environmental Law – 2013 Environment, Energy & Natural Resources Section Annual Meeting and 25th Anniversary, Indoor Air Quality/ Vapor Intrusion, Apr. 26, 2013, manuscripts and presentation available at https://www.ncbar.org/cle/bookstore/13513

“N.C. Attorneys Beware (or Be Aware): Vapor Intrusion is Changing the Rules,” N.C. Bar Association, Environment, Energy & Natural Resources Section, Newsletter, February 8, 2013, available at http://www.kilpatricktownsend.com/en/Knowledge_Center/Publications/Articles/2013/02/N.aspx

"Attorneys Beware: RCRA Is Rapidly Becoming a Powerful Tool for Vapor Intrusion Litigation,” BNA Daily Environment Report, September 2012, available at http://www.kilpatricktownsend.com/en/Knowledge_Center/Publications/Articles/2012/09/Attorneys_Beware.aspx

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