Walk around your basement – see those pipes? Would you consider those pipes to be hazardous waste? What about rain boots? Garden hose? Shower curtain? Traffic cones? All of these and more have the potential to be designated and handled as hazardous waste under a current petition to the United States Environmental Protection Agency (EPA) under the Resource Conservation and Recovery Act (RCRA) to designate discarded products containing polyvinyl chloride (PVC) as “hazardous waste.” Per a proposed Consent Decree, EPA will decide by January 2023. This is definitely an issue to watch.
RCRA provides cradle-to-grave management of hazardous wastes, imposing requirements for the generation, transportation, treatment, storage and disposal of hazardous waste. RCRA regulations define solid waste and hazardous waste and include a complex process that identifies specific substances known to be hazardous and provides criteria for including other materials in the regulated hazardous waste universe.[1] In the past year, most attention has been paid to the regulation of per-and polyfluoroalkyl substances (PFAS), including EPA’s acceptance of the Governor of New Mexico’s formal petition to designate PFAS as a RCRA hazardous waste. Less attention has been paid to a petition to designate discarded PVC products as a hazardous waste under RCRA, which could have wide-ranging and unanticipated impacts due to the ubiquity of PVC and PVC products as one of the most commonly used (and disposed of) plastics in world.[2]
The effort to designate discarded PVC and PVC products as a RCRA hazardous waste started eight years ago when the Center for Biological Diversity (CBD) filed a petition with EPA. The petition requested that EPA consider whether to designate discarded PVC and PVC products as a RCRA hazardous waste and, if so, that EPA revise the related solid waste management guidelines.[3] Among other claims, CBD alleged that discarded PVC products leach vinyl chloride and other chemical components into the environment as the products deteriorate with age in municipal solid waste landfills.[4]
Importantly, CBD’s petition not only requests the hazardous waste designation for PVC that may be generated at the manufacturing stage, but also requests designating finished materials and products that contain PVC as hazardous waste when discarded, potentially implicating a wide range of entities that may not otherwise come under the RCRA umbrella. These entities include retail establishments, the construction industry, aquaculture operations, sewage utilities and households that may dispose of PVC products in the general household trash.
EPA did not respond to CBD’s 2014 formal petition.[5] As a result, CBD filed an action
on August 19, 2021, alleging that EPA had failed to take a non-discretionary duty to respond to its petition.[6] On May 4, 2022, EPA announced that it had entered into a proposed Consent Decree with CBD to address its petition. The proposed Consent Decree requires EPA make a tentative decision on listing by January 20, 2023, and a final determination on listing by April 12, 2024.[7]
At this point, it is unclear whether EPA will grant CBD’s petition and proceed with rulemaking to designate discarded PVC products as RCRA hazardous waste. However, given the current regulatory climate, in which EPA (and other agencies) often ere on the side of more regulation regardless of potentially serious economic and practical considerations, interested parties should take this risk seriously. In addition, the proposed designation should be viewed in the light of the federal government and EPA’s goal to reduce the volume of plastic waste and the RCRA regulation of discarded PVC and PVC products creates a different pathway of cracking a regulation “nut” for these plastic materials.[8]
As a result, it is important to consider the potential impacts of RCRA regulation of PVC and PVC products as hazardous waste:
[1] RCRA hazardous wastes are defined as any “solid waste that, among other things, may pose a “potential hazard to human health or the environment when improperly treated, stored, transported, or disposed of, or otherwise managed.”
[2] PVC is produced in two general forms: a rigid or plasticized polymer and the second as a flexible plastic. Plumbing, sewage, and agriculture industries utilize rigid PVC while the more flexible PVC (which is softer and more amenable to bending due to the addition of plasticizers), is used in insulation on electrical wires and a variety of consumer products ranging from raincoats to shoes to garden houses to PVC coated paperclips and more. Typically, anything labeled as “vinyl” contains PVCs.
[3] 42 U.S.C. § 6774(a) allows any person to petition EPA for the “promulgation, amendment or repeal of any regulation” and requires EPA to take action on a petition within a “reasonable time following receipt.”
[4] The Petition is replete with references to existing scientific literature but contains no direct testing or analysis of the impacts of disposal of discarded PVC products on the environment, such as leachability tests.
[5] Interestingly, CBD’s petition also asked PVC to regulate PVC under the Toxic Substances Control Act (TSCA). EPA denied this request on October 24, 2014 but stated that it would continue to evaluate CBD’s RCRA request.
[6] This was preceded by a May 19, 2014 RCRA sixty-day notice letter of intent to sue.
[7] Comment period closed on June 3, 2022. Only five sets of comments were received, with three filed on behalf of industry.
[8] At present, EPA does not have sufficient statutory authority to adopt wide-ranging regulations to address the manufacture, disposal and recycling of plastics. In March 2021, Sen. Jeff Merkley (D-OR) and Rep. Alan Lowenthal (D-CA) introduced the Break Free From Plastic Pollution Act of 2021 ((H.R.5845 / S.3263), which would seek to Extended Producer Responsibility requirements on manufacturers, and retailers on variety of plastics and other products.
[9] Beyond typical household or commercial waste disposal, the retail industry may be impacted when PVC products are returned by customers and would otherwise be discarded by retail stores. Discarded PVC products may be added to the growing list of items that require special management under RCRA including aerosol cans, cosmetics, nail polish. household cleaners, hand sanitizer, pesticides, pharmaceuticals, and pool supplies. Although penalties against retail establishments have somewhat moderated in the past five years, EPA previously showed no hesitation in imposing stiff penalties in the millions of dollars for mismanagement of discarded retail products.
[10] See Strategy for Addressing the Retail Sector under the Resource Conservation and Recovery Act's Regulatory Framework | US EPA.
[11] PVC construction products include pipe and fittings, power and telecommunications wiring and cables, roofing membranes, siding, flooring and wallcovering.
[12] Comments submitted by Association of General Contractors of America (June 3, 2022).
[13] A 2019 Capacity Assessment Report issued by EPA found that, while there currently is adequate Subtitle C hazardous waste landfill capacity, such capacity could be impacted by “unforeseen circumstances” including a change in federal regulations.
DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.
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