On the advice of legal counsel?

girl thinking- iStockThe Director of a big box store called me the other day and asked me an interesting question: “When customers return merchandise to my store, do my staff at the customer service counter have to determine immediately if the merchandise is a hazardous waste?”

His legal counsel told him that he has to! He wanted another opinion.

Here is what I told him. NO! It is unreasonable to expect the customer service to determine if the return merchandise is a hazardous waste immediately. The store has several options when it receives a returned merchandise. It can put it back in stock for future sale. It can return the goods to the manufacturer. It can donate the merchandise to charity. Or it can dispose of the returned goods as regular garbage or hazardous wastes – depending on the characterization.

The store needs to makes the hazardous waste determination only at the time when it decides to dispose of the goods. This is commonly referred to as the “point of generation”.  Any time before that “point of generation”, the returned merchandise is not a RCRA “solid waste” and therefore it cannot be a hazardous waste.

So the store can take a reasonable amount of time to determine the final fate of the returned merchandise before it needs to characterize the merchandise as waste. The store can take the returned merchandise back into a store room and make the determination properly. The customer service personnel should not have to make the hazardous waste determination immediately upon receipt of the merchandise becasue it may not even be a waste at all. It should mark the merchandise as “pending determination”.

For the reasons stated above, I disagree with the store’s legal counsel.  

Is the legal counsel’s advice similar to the advice of the fire insurance underwriter who wants his client to operate its facility under 5 feet of water so that it would never catch fire?

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