The U.S. Environmental Protection Agency (EPA) has tentatively declined to characterize discarded polyvinyl chloride (PVC) as a hazardous waste under the Resource Conservation and Recovery Act.
In tentatively rejecting the Center for Biological Diversity’s (CBD) petition, the EPA is signaling that not all PVC plastic presents a substantial hazard and that the existing statutory framework is sufficient to address potential environmental risks presented by PVC.
Stakeholders will have until February 13, 2023, to provide comments.

Introduction and Background
Few materials generate as much controversy as polyvinyl chloride (PVC). Versatile, durable and available at a comparatively low cost, PVC offers a wide range of advantages across numerous industries, cementing its place as one of the market’s most popular materials. For example, PVC’s rigidity and strength makes it a popular construction material, and its high chlorine content makes PVC fire-resistant. PVC is also present in food packaging, children’s toys, and other industrial, retail and commercial materials.

Despite these benefits, certain forms of PVC have come under scrutiny for presenting potential environmental risks. These risks are more fully associated with the less rigid forms of PVC. Such products contain a greater percentage of plasticizers, which, in turn, contain phthalates, a class of chemicals that have garnered increased regulatory scrutiny as “everywhere chemicals.” Some phthalates have been linked to reproductive harm and cancer.

In May 2022, the EPA published a notice of a proposed consent decree obligating itself to decide whether to designate PVC as a Resource Conservation and Recovery Act (RCRA) hazardous waste by April 12, 2024. This consent decree was issued to resolve a petition the CBD had filed in 2014 urging the EPA to effectuate a hazardous waste listing for PVC both at the initial chemical manufacturing stage and when discarded. Last week’s tentative rejection of the petition was issued in compliance with the January 20, 2023, deadline set forth in the proposed consent decree for the publication of a tentative EPA decision on the issue.

EPA’s Reasoning
The EPA’s tentative rejection of the CBD petition raises several noteworthy arguments, which will surely be the subject of public comments (once the public comment period opens). For example:

  • The EPA cited the inability to obtain information on the plasticizer/phthalate content of various PVC products as a basis for refusing to impose potentially onerous obligations on industry. Specifically, the EPA noted that the risks presented by PVC are indeterminable, because the relative harm of a product depends on the plasticizer content and “it is difficult to determine the proportion of PVC products that contain plasticizers because PVC manufacturers and PVC product manufacturers are not generally required to report this information.” According to the EPA, the inability to obtain such information makes a blanket hazardous waste characterization unwarranted.
  • The EPA categorically rejected each of the CBD’s arguments regarding the need for a hazardous waste listing to abate the three potential pathways by which phthalate plasticizers contained in PVC waste might enter the environment: (1) environmental exposure from marine litter; (2) fugitive leachate from inadequately lined landfills; and (3) atmospheric exposure from incineration. Specifically, it indicated that RCRA already prohibits open dumping of solid waste and requires solid waste landfills to control leachate (items 1 and 2), while controlling air emissions would be regulated under the Clean Air Act, irrespective of a hazardous waste listing.
  • The EPA fell back on the administrative difficulties of completing a hazardous waste listing. Specifically, the Agency indicated that “listing hazardous wastes is a resource-intensive process,” and that its “limited available resources” would be better spent on rulemakings that would address hazards specifically identified by the EPA and capable of being mitigated by regulating treatment, storage, transport and disposal.

Despite these arguments, which are of varying persuasiveness, the EPA’s response is not final. The public will have until February 13, 2023, to comment on the tentative determination. The possibility thus exists that the EPA may reverse course.

Implications of Listing PVC as a Hazardous Waste
Were the EPA to designate PVC as a hazardous waste, it would have obvious implications for anyone that generates, stores, transports or manages discarded PVC. This would include companies that dispose of or recycle products containing PVC, as the EPA could decide to designate only PVC waste as hazardous or, as the CBD requested, it could also declare that all products containing PVC are hazardous waste when discarded.

As such, a hazardous waste designation for PVC would result in numerous entities gaining generator status for the first time, subjecting them to more stringent standards for hazardous waste management. Given the uniquity of PVC, many such entities would likely lack any familiarity with RCRA or with the requirements for maintaining compliance with the program. If the EPA does go as far as to designate all products containing PVC to be hazardous waste, even retailers who dispose of plastic consumer products containing PVC could be considered generators.

Furthermore, if PVC is characterized as a hazardous waste under RCRA, sites where it has been released will also fall under the scope of the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA). This would result in the imposition of joint and several liability for environmental remedial costs on a whole slew of parties that previously may not have been exposed. Such parties may include past and present current owners and operators of facilities where PVC products have been disposed, parties that arrange for the disposal of such products, and transportation companies.

Equally important, any designation of PVC as hazardous waste when discarded would complicate plastics recycling. If the EPA decides to designate all finished materials and products containing PVC as hazardous waste when discarded, new procedures for handling the recycling of plastic products would have to be developed, as many plastic items contain PVC.

It could also wreak havoc on the construction industry. As stated, PVC is heavily used in construction projects because of its durability and low costs. If a hazardous waste designation is finalized, the construction industry may experience shortages of materials due to the absence of clear alternatives to replace PVC, resulting in supply chain delays. Additionally, designation of discarded PVC materials as hazardous waste could prohibit construction companies from disposing of materials in landfills and could require an overhaul for demolition procedures.

Conclusions and Recommendations
The EPA’s tentative rejection of the CBD petition is just that—a tentative determination. It will be interesting to see how the final determination takes shape. An opportunity still exists for interested parties to influence the outcome of the process. As such, interested parties should consider making public comments. Such comments can even serve as a basis for a potential rulemaking challenge if, down the road, the EPA issues a final decision that is contrary to a business’ desired outcome. Pillsbury attorneys have extensive experience dealing with emerging contaminants, filing public comments on behalf of clients, and assisting clients in bringing rulemaking challenges against governmental agencies, including the EPA.

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