Spotlight on Hazardous Waste Laws
By Josh M. McMorrow, Tim Wilkins and Matt Haynie
“I’m a retailer, not a hazardous waste producer.” If that’s what you think, you may be wrong.
The fact is that any retailer that sells such everyday items as fertilizer, bug spray, nail polish, bleach or some over-the-counter medications generates hazardous waste. The U.S. Environmental Protection Agency and state governments have recently turned their enforcement eyes on retailers’ role as hazardous waste generators, hitting these companies with tens of millions of dollars in fines based on violations of state and federal hazardous waste laws.
It should come as no surprise that ordinary retailers can be liable under hazardous waste laws. The days are long gone when federal and state agencies focused their hazardous waste enforcement efforts on major industrial operators. As recent cases show, retailers of common household goods must also take the steps necessary to comply with these laws or face serious civil and/or criminal consequences.
Waste Not, Want Not
A variety of federal and state laws apply to entities that handle hazardous waste. The most widely applicable of these is RCRA. Originally enacted by Congress in 1976 (and notably expanded in 1984), RCRA establishes a federal “cradle to grave” system for the management of solid and hazardous waste.
Subtitle C of RCRA, and its enabling regulations, set out a national hazardous waste management program. A threshold for coverage under these requirements is that an activity must involve “hazardous waste.” For a substance to be hazardous waste, it must be a waste — to greatly oversimplify, something that is intended to be discarded, abandoned or recycled, both before and after it is disposed or recycled.
The pre-disposal or pre-recycling storage element of the definition can be a special problem for retailers. Why? Because once a customer brings in a return, that item may already be considered a waste when the retailer receives it if it is destined for the trash or recycling.
Hazardous wastes include products that can no longer be used for their intended purpose. A product becomes a waste when the decision to discard has been made for a particular item. For years, retailers have put off the decision to discard until an item was transported back to a return center. Historically, retailers have claimed to lack the expertise to make the waste determination at the store level. This would seemingly allow a retailer to avoid making a waste determination, giving them the ability to legally transport the product without complying with RCRA. A recent Wal-Mart case specifically deals with this practice and makes clear the government’s view that the waste determination must be made at the store level for any product that cannot be used for its intended purpose.
Many waste items can be “hazardous wastes” — not just things that require a hazmat suit to handle but any waste that either is included on specific EPA lists of hazardous wastes or exhibits certain characteristics deemed to be hazardous — ignitability, corrosivity, reactivity or toxicity. Materials included on the EPA lists or exhibiting those attributes cause problems for people or the environment due to their tendency, among other things, to cause fires or eat through storage containers. Common retail products falling into these categories are legion, including many beauty supplies, batteries, light bulbs, household cleaners, pesticides and paints.
Entities that violate RCRA can face serious consequences. The civil penalties, for example, can be significant. Under RCRA, administrative and civil penalties of up to $37,500 per day are available for each violation of the regulations. Those penalties can add up quickly, especially because the government can often identify multiple violations — if a retailer fails to perform a proper waste determination and a hazardous waste ends up in the store dumpster, the retailer has likely violated quite a number of requirements, including failure to properly identify, label, package, mark, store, train, plan, manifest and dispose of the waste in question. Eight or 10 violations occurring over a period of months or years can result in mind-bogglingly large potential penalties.
Importantly, for “knowing violations” of various RCRA requirements, the federal government can also commence a criminal enforcement action, with penalties reaching up to $50,000 per day of violation, as well as imprisonment for responsible corporate officers and managers and involved employees for up to five years in some circumstances. Even more seriously, where such a violation would knowingly put someone in danger of death or serious bodily injury, the penalty can reach $250,000 for an individual or $1,000,000 for an organization, in addition to imprisonment for up to 15 years.
These financial and penal consequences are in addition to issues like legal and defense costs, damage to reputation, and potential injunctive requirements and oversight. Where these issues arise, public companies can be punished by their shareholders, credit agreements and other financial instruments can be violated, and entities that do business with the federal government can face potential exclusion from those activities. Plus, RCRA violations can be in addition to violations of other federal and state statutes that lead to similar consequences, as well as private party litigation that can be brought by persons claiming to have been harmed.
Josh M. McMorrow is VP and general counsel of PSC, a leading environmental and industrial services company based in Houston. Tim Wilkins is head of the environmental practice at the international law firm of Bracewell & Giuliani, LLP and managing partner of the firm’s Austin, Texas office. Matt Haynie is an environmental associate attorney in Bracewell’s Washington, D.C., office.
ICSC’s Terrorist Awareness Training Program
The International Council of Shopping Centers created a terrorist-awareness training program shortly after 9/11. At the time, there were no training programs in place for the shopping center industry.
“We hired George Washington University to develop a program and funded the work with $2 million,” said Malachy Kavanagh, ICSC spokesperson. “We created a 10-module course that is delivered over the Internet. You can learn at your own pace. If you work right through, it will take 14 to 15 hours.”
ICSC has since moved the course from George Washington to the Stephenson National Center for Security Research and Training at Louisiana State University’s Fire and Emergency Training Institute. “They do our training on their website and update us every month on the completion rate,” Kavanagh said.
Subjects include active shooters, evacuation, sheltering in place, behavior analysis and more.
The first goal in the training program is to recognize people who are acting out of character for a shopping center. “Everyone acts pretty much the same when shopping,” Kavanagh said. “So part of the training teaches people to look for anomalous behavior — who is not acting like a shopper.
“For example, law enforcement tells us that terrorist attacks are carefully planned. Planning includes studying the target. If you can spot someone conducting surveillance, you might be able to prevent an attack.”
ICSC updates the course constantly. Every year, for instance, the Stephenson Center and ICSC host a security summit. In 2013, the summit brought in security experts from Israel to talk about bombing. Kavanagh said that ICSC used the opportunity to develop additional educational opportunities.
Annual updates are important to a terrorism training course because strategies continually change and evolve as the experience base grows. For example, law enforcement recently shifted its strategy for responding to an active shooter.
Not long ago, the strategy was to encircle the mall, try to figure out where the shooter was and where the bystanders were.
“The strategy today is that whoever arrives first should enter the mall and get after the shooter,” Kavanagh said. “The reason is that malls are large facilities and it can be difficult to find an individual. So now the thinking is: Capture ground and make it safe so that EMTs can treat the wounded. If you hear shots over there, go over there now. Disarm or eliminate the shooter as fast as you can.”
Such a significant change in law-enforcement strategy might also change the property level response before the police arrive. So it is important to maintain the lines of communication between law enforcement and the industry.
Protecting Mall Shoppers
On Nov. 4, 2013, a man with a rifle walked into a mall just before closing time and fired several shots into the air. The gunfire terrified shoppers at the Garden State Plaza in Paramus, N.J., and sparked a massive police response, followed by a tense six hours as cops searched for the gunman and evacuated panicked employees and customers. The gunman eventually shot himself in the head in a secluded part of the 2.1 million-sq.-ft. mall.
Over the past decade, shooting attacks at shopping centers and other public places have more than doubled. In 2001, researchers counted five shooting events that occurred in public places and involved victims who did not know the shooter. Between 2009 and 2012, the rate of those shootings tripled, to about 15 a year.
In 2013, there were 13 such attacks in the United States.
To be sure, the chance that a shooting will erupt at any particular public place is small. Still, the number of attacks is growing. Add to that the growing threat of terrorist attacks on public spaces. The armed assault on the Westgate Mall in Nairobi, Kenya, in September 2013 killed 67 people and injured more than 175, highlighting the vulnerability of shopping centers.
Moreover, the threat of terror attacks is rising around the world, according to U.S. Senator Dianne Feinstein of California, chair of the Senate Intelligence Committee.
“Today, there are more al Qaeda affiliates than ever,” Feinstein said on CNN’s “State of the Union” on Dec. 1, 2013. “All aspire to commit acts of violence in the United States.”
In the wake of the Westgate attack, the New York Police Department sent a team to Kenya to gather intelligence and do its own analysis of the horrific events. It released its findings in a report, which it shared with attendees at the 30th annual NYPD Shield Conference in December. The report emphasized the relative ease with which the attack was carried out and the chaotic law enforcement response, which was hampered by lack of communication and poor planning.
“It … clearly illustrates that armed assaults by terrorists on ‘soft targets’ … are a simple, effective and easy-to-copy tactic,” the report stated.
Shopping center owners — particularly those with portfolios containing major regional shopping centers and malls — have begun to take steps to protect retailers and shoppers should an attack occur.
“I’ve talked to a number of large mall security directors who are rewriting plans and developing active shooter training programs,” said Ron Lander, a principal with the Norco, Calif.-based security consulting firm of Ultrasafe Security Specialists. Lander carries the credentials of CMAS, or Certified Master Anti-terrorist Specialist.
There are a number of things owners can do, according to Lander. Here are some tips:
Start by developing relationships with the fire and police departments that protect the property. Talk to architects experienced with building design aimed at facilitating security. Consider new technology. Train tenants to contribute during an emergency.
“Call the community relations and crime prevention officer at your local police department and offer space in your shopping center or mall for a police substation,” Lander said. “Having lots of police cars parked in the lot makes an effective deterrent.
“Invite the fire department and SWAT team to the center to conduct drills. Ask them to do it at night when shoppers aren’t around.”
Shopping centers often shy away from this, but it is useful for an incident commander and officers to know your facility, Lander added.
Safer by Design
An architectural technique that owners can apply is crime prevention through environmental design (CPTED).
CPTED-trained architects use bollards, planters and other barriers to keep vehicles away from buildings, with landscaping that trims back shrubbery and plantings to eliminate hiding places next to buildings. Site design focuses on something called natural surveillance — maintaining sightlines and clear views that prevent armed criminals from approaching a building unobserved.
Emerging Security Technology
Keep up with new technology. Tyco Integrated Security, a unit of Princeton, N.J.-based Tyco International, for instance, just launched a hosted monitoring service.
It includes two high-definition, audio-enabled cameras connected to a network appliance that sends video clips to a cloud website monitored by Tyco, as well as mall security.
“Video analytics in the system speak to issues raised in the Nairobi attack,” said Vincent Scarpelli, manager of product strategy, video solutions with Tyco Integrated Security.
One to several Tyco units positioned in common areas can support existing surveillance systems with video and audio analytics that identify specific actions and sounds. The audio analytics will alarm on angry voices and gunshots and send audio and video clips to the cloud. Monitoring personnel will check the video, and if necessary notify security and the police.
Video analytics will identify motion, abandoned packages, color, people forming crowds and other questionable behavior and send clips to be evaluated.
Shopping center security directors training to respond to an active shooter or a terrorist attack are planning two basic responses: evacuating and sheltering in place.
“The first priority is to get people out of danger by evacuating or moving into a place of shelter in the mall,” said Bud Bradley, VP national account portfolio management with AlliedBarton Security Services, Conshohocken, Pa., one of the largest suppliers of shopping mall security personnel.
“Should there be a major disturbance in a shopping center, we want the merchants to gather shoppers and lead them out of the center along a safe evacuation route,” Bradley continued. “If the evacuation routes are blocked, then we ask the merchants to gather shoppers into their stores, pull down and lock the gates, move everyone into the storerooms in the back and lock the doors.”
One challenge associated with the decision to evacuate or shelter in place involves communicating the decision — which might vary for different wings of a mall. People in one wing may be able to get outside to complete safety, while people in another wing will have to find shelter.
“Most malls don’t have public address systems,” noted Bradley. “Then again, if there is a terrorist attack or an active shooter, you probably don’t want to make a PA announcement for all to hear.”
What about a mass notification system that emails and texts retailers with instructions to evacuate or shelter in place? There has been a lot of discussion of mass notification systems, Bradley said. But there are drawbacks. Someone has to learn how to send the right messages to the right tenants as soon as the decisions have been made. Further, given the rate of turnover in retail, the mass notification manager in a large center would likely spend a lot of time checking to see which contacts have quit and keying in replacement phone numbers.
By the time the police arrive, an evacuation or shelter-in-place plan may be underway, and the security team will shift its focus to supporting the police in the command center. Security personnel can provide police with directions to shopping center locations, scan video surveillance cameras to handle the evolving situation and other tasks.
Experience shows that planning doesn’t work unless everyone involved — security and retailers, in this case — practices. Experts recommend regular drills to give people a feel for how evacuation or shelter-in-place efforts work before the real thing is required.