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Warren Lehrenbaum is a partner in Crowell & Moring's Washington, D.C. office. He represents individual companies and trade associations before the U.S. Environmental Protection Agency (EPA), the United States Department of Agriculture (USDA) and the Food and Drug Administration (FDA), where he advocates on behalf of individual products as well as broad policy issues.

EPA has proposed a new rule to restrict the use of seven toluene diisocyanates (TDIs) in consumer products.  TDIs are commonly used in the production of polyurethanes found in foams, coatings, elastomers, adhesives and sealants used in consumer products.  Flexible foams (for cushioning) and rigid foams (for insulation) are the chief uses for TDI.

Published on January 15, 2015, the proposed Significant New Use Rule (SNUR) would apply to all consumer products containing any of the seven TDIs.  In most instances, consumer products will be covered by the rule if they contain these chemicals at any level of concentration.  All manufacturers, importers, and product processers utilizing these chemicals would be required to notify EPA at least 90 days before such activity commences or resumes.  This would give EPA an opportunity to examine the intended use of products, evaluate the risks and potential hazards, and potential ban or restrict the products’ manufacture, processing or import.

For more information about this proposed rule, including information and deadlines for submitting public comments, see our full report here.

Retailers face serious challenges in complying with their obligations under Resource Conservation and Recovery Act (“RCRA”) and other federal environmental statutes in light of the wide variety of retail products covered by EPA’s waste disposal regulations. EPA recently expressed its intent to consider future rulemaking under RCRA governing retail products unsold, returned, or removed from shelves for inventory changes or recalls. According to the Unified Agenda, a Notice of Data Availability on the issue was planned for March 2013, though EPA has yet to put forth any information or guidance on the subject. EPA’s recent enforcement efforts and multi-million dollar settlement of RCRA and other claims against Wal-Mart underscore the agency’s escalating interest in retail waste and impacts that could reach beyond Wal-Mart to other retail vendors that handle similar waste streams.

Retailers attempting to comply with RCRA should have compliance programs sufficient to ensure they meet RCRA generator requirements and avoid the shipment of hazardous wastes from warehouses and reverse distribution centers. EPA’s consent decree also requires annual monitoring plans to identify new products that are hazardous wastes when disposed of, employee training requirements, development of an environmental management system, maintenance of a hazardous waste electronic database available to all workers to aid in the identification of hazardous wastes, and development of standard operating procedures relating to environmental compliance.Click here for further information on EPA’s RCRA activity.

Click here for further information on EPA’s RCRA activity.

For more information on the Wal-Mart settlement, visit EPA’s website.

This post was co-authored by Crowell & Moring attorneys Dawn Miller, Warren Lehrenbaum and Cheryl Falvey.