[Federal Register Volume 88, Number 8 (Thursday, January 12, 2023)]
[Notices]
[Pages 2089-2092]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-00478]


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ENVIRONMENTAL PROTECTION AGENCY

[EPA-HQ-OLEM-2022-0971; FRL-10181-01-OLEM]


Response To Petition To Classify Discarded Polyvinyl Chloride as 
RCRA Hazardous Waste

AGENCY: Environmental Protection Agency (EPA).

ACTION: Petition response.

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SUMMARY: The Environmental Protection Agency (EPA) is responding to a 
rulemaking petition from the Center for Biological Diversity requesting 
that discarded polyvinyl chloride be listed as a hazardous waste under 
the Resource Conservation and Recovery Act. After careful 
consideration, the Agency is tentatively denying the petition for the 
reasons discussed in this document. The Agency is also soliciting 
public comment on this tentative denial.

DATES: Comments must be received on or before February 13, 2023.

ADDRESSES: You may send comments, identified by Docket ID No. EPA-HQ-
OLEM-2022-0971, by any of the following methods:
     Federal eRulemaking Portal: https://www.regulations.gov/ 
(our preferred method). Follow the online instructions for submitting 
comments.
     Mail: U.S. Environmental Protection Agency, EPA Docket 
Center, Office of Land and Emergency Management Docket, Mail Code 
28221T, 1200 Pennsylvania Avenue NW, Washington, DC 20460.
     Hand Delivery or Courier: EPA Docket Center, WJC West 
Building, Room 3334, 1301 Constitution Avenue NW, Washington, DC 20004. 
The Docket Center's hours of operations are 8:30 a.m.-4:30 p.m., 
Monday-Friday (except Federal Holidays).
    Instructions: All submissions received must include the Docket ID 
No. for this rulemaking. Comments received may be posted without change 
to https://www.regulations.gov/, including any personal information 
provided. For detailed instructions on sending comments and additional 
information on the rulemaking process, see the ``Public Participation'' 
heading of the SUPPLEMENTARY INFORMATION section of this document.

FOR FURTHER INFORMATION CONTACT: Daniel Lowrey, Materials Recovery and 
Waste Management Division, Office of Resource Conservation and 
Recovery, (5304T), Environmental Protection Agency, 1200 Pennsylvania 
Avenue NW, Washington, DC 20460; telephone number: 202-566-1015; email 
address: [email protected].

SUPPLEMENTARY INFORMATION: 

Table of Contents

I. Public Participation
    A. Does this action apply to me?
    B. Written Comments
II. General Information
    A. List of Abbreviations and Acronyms
    B. What action is the EPA taking?
    C. What is the EPA's authority for taking this action?
    D. What are the incremental costs and benefits of this action?
III. Background
    A. Background on Polyvinyl Chloride and how is it Regulated 
Under RCRA
    B. Summary of the Petitioner's Requested Changes
    C. How is the EPA addressing discarded PVC?
IV. Reasons for the EPA's Tentative Denial of the Petition
    A. Petition Does Not Adequately Support Regulation of Discarded 
PVC Under RCRA
    B. The EPA has Higher Priorities for Limited Available Resources
V. References

I. Public Participation

A. Does this action apply to me?

    The Agency is not proposing any regulatory changes at this time. 
Entities that may be interested in this tentative denial of the 
rulemaking petition include any facility that manufactures, uses, or 
generates as waste any materials containing polyvinyl chloride (PVC) or 
its components. If you have questions regarding the applicability of 
this action to a particular entity, consult the person listed in the 
FOR FURTHER INFORMATION CONTACT section.

B. Written Comments

    Submit your comments, identified by Docket ID No. EPA-HQ-OLEM-2022-
0971, at https://www.regulations.gov (our preferred method), or the 
other

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methods identified in the ADDRESSES section. Once submitted, comments 
cannot be edited or removed from the docket. The EPA may publish any 
comment received to its public docket. Do not submit to EPA's docket at 
https://www.regulations.gov any information you consider to be 
Confidential Business Information (CBI), Proprietary Business 
Information (PBI), or other information whose disclosure is restricted 
by statute. Multimedia submissions (audio, video, etc.) must be 
accompanied by a written comment. The written comment is considered the 
official comment and should include discussion of all points you wish 
to make. The EPA will generally not consider comments or comment 
contents located outside of the primary submission (i.e., on the web, 
cloud, or other file sharing system). Please visit https://www.epa.gov/dockets/commenting-epa-dockets for additional submission methods; the 
full EPA public comment policy; information about CBI, PBI, or 
multimedia submissions; and general guidance on making effective 
comments.

II. General Information

A. List of Abbreviations and Acronyms

APA Administrative Procedure Act
CAS Chemical Abstract Services
CBD Center for Biological Diversity
BBP Butyl benzyl phthalate
DBP Dibutyl phthalate
DEP Diethyl phthalate
DEHP Diethylhexyl phthalate
DIDP Diisodecyl phthalate
DINP Diisononyl phthalate
DMP Dimethyl phthalate
DnOP Di-n-octyl phthalate
EPA Environmental Protection Agency
g grams
kg kilogram
L liter
mg milligram
NSF/ANSI Approved American National Standard
ppm parts per million
PVC Polyvinyl chloride
RCRA Resource Conservation and Recovery Act
TCLP Toxicity characteristic leaching procedure
wt% percent by weight

B. What action is the EPA taking?

    The EPA is providing notice of and requesting comment on its 
tentative denial of CBD's 2014 rulemaking petition concerning the 
regulation of discarded polyvinyl chloride (PVC) and associated 
chemical additives under the Resource Conservation and Recovery Act 
(RCRA). With this action, the Agency is publishing its evaluation of 
the petition and supporting materials and requesting public comment on 
the tentative denial.

C. What is the EPA's authority for taking this action?

    On July 24, 2014, the Center for Biological Diversity (CBD) 
petitioned the EPA to list discarded PVC as a hazardous waste under 
RCRA (``Petition''). The Agency is responding to this petition for 
rulemaking pursuant to 42 U.S.C. 6903, 6921 and 6974, and implementing 
regulation 40 CFR part 260.21. Authority for the identification and 
listing of hazardous wastes is granted pursuant to 42 U.S.C. 6903 and 
6921, and implementing regulations 40 CFR parts 260 and 261.

D. What are the incremental costs and benefits of this action?

    As this action proposes no regulatory changes, this action will 
have neither incremental costs nor benefits.

III. Background

A. Background on Polyvinyl Chloride and How it Is Regulated Under RCRA

    PVC is one of the most common plastics, used in a variety of 
applications--primarily in the construction industry, but also in 
packaging and consumer goods (OECD 2022).
    PVC is formed from the polymerization of vinyl chloride monomer and 
additives. Typical additives include plasticizers that make the PVC 
more flexible and stabilizers that limit degradation from sources such 
as oxygen, heat, light, and flame. Currently, discarded PVC may be 
classified as hazardous waste under RCRA if it leaches specified toxic 
constituents in excess of the toxicity characteristic leaching 
procedure (TCLP) regulatory limit for any contaminant (identified by a 
hazardous waste ``D'' number) listed in Table 1 of 40 CFR 261.24. PVC 
may contain RCRA hazardous constituents such as vinyl chloride monomer 
(toxicity characteristic level of 0.2 milligrams per liter (mg/L)) as 
well as certain metals like barium, cadmium, and lead. Compounds listed 
on appendix VIII to 40 CFR part 261, which also includes all compounds 
that have D- and/or U- listed numbers, are hazardous constituents. 
``U'' number wastes listed in 40 CFR 261.33 are substances that are 
hazardous wastes when they are discarded commercial chemical products, 
off-specification species, container residues, and spill residues 
thereof. Waste containing hazardous constituents is not automatically 
regulated as hazardous waste.
    In the United States, there are no mandatory standards limiting 
residual vinyl chloride in domestically manufactured or imported PVC. 
However, some product standards apply to PVC products, such as NSF/ANSI 
14 and 61 for plastic pipes. These standards apply to the leaching of 
vinyl chloride monomer into water carried by pipes, and do not directly 
limit the amount of vinyl chloride monomer that may be present in the 
PVC product. Vinyl chloride monomer limits in drinking water are found 
in 40 CFR 141 Appendix A to Subpart O, with a Traditional MCL of 0.002 
mg/L.
    A 2000 survey of American vinyl producers found average 
concentrations of residual vinyl chloride monomer to be between 0.52 
and 1.45 mg/kg, and cites industry practice that PVC with residual 
vinyl chloride of less than 3.2 mg/kg is suitable for pipes that need 
to meet the leaching standards for drinking water (Borelli et al. 
2005). Methods for evaluating residual vinyl chloride monomer in PVC 
are found in 40 CFR 61 Appendix B (Methods 107, 107A).
    All PVC contains stabilizers. Some PVC contains stabilizers 
containing RCRA hazardous metals such as barium (D005), cadmium (D006), 
and/or lead (D008) (toxicity characteristic levels of 100 mg/L, 1 mg/L, 
and 5 mg/L, respectively). Other PVC contains stabilizers based on 
calcium, zinc, and/or tin, which are not regulated as RCRA hazardous 
constituents (Hahladakis et al. 2018; European Commission 2022).
    PVC may contain plasticizers, with the concentration of 
plasticizers varying widely based on the desired properties of the 
final material. Rigid forms of PVC contain little to no plasticizers 
while more flexible forms require the addition of more plasticizers. 
Common plasticizers include but are not limited to: di(2-ethylhexyl) 
phthalate (DEHP, CAS 117-81-7, U028), dibutyl phthalate (DBP, CAS 84-
74-2, U069), diethyl phthalate (DEP, CAS 84-66-2, U088), dimethyl 
phthalate (DMP, CAS 131-11-3, U102), di-n-octylphthalate (DnOP, CAS 
117-84-0, U107), and benzyl butyl phthalate (BBP, CAS 85-68-7, on 
Appendix VIII only) (Carlos, de Jager, and Begley 2018; Hahladakis et 
al. 2018, 185; Czoga[lstrok]a, Pankalla, and Turczyn 2021). Common 
plasticizers that are not RCRA hazardous constituents include adipates, 
trimellitates, and other phthalates such as diisononyl phthalate (DINP, 
CAS 28553-12-0) and diisodecyl phthalate (DIDP, CAS 28761-40-0) 
(Carlos, de Jager, and Begley 2018; Hahladakis et al. 2018; 
Czoga[lstrok]a, et al 2021).
    Typically, plasticizers constitute from zero up to about 50 percent 
of the product by weight, although higher concentrations have been 
reported (Carlos, de Jager, and Begley 2018;

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Hahladakis et al. 2018; Kim et al. 2020; European Commission 2022).
    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. 
Voluntary data from 2000 indicates about two thirds of PVC is of rigid 
grades that do not contain significant amounts of plasticizers (Borelli 
et al. 2005). In the United States, concentrations of certain 
phthalates are prohibited in some children's products (16 CFR 1307), 
but no single standard covers all PVC.

B. Summary of the Petitioner's Requested Changes

    The EPA has been petitioned to ``promulgate regulations governing 
the safe treatment, storage and disposal of PVC, vinyl chloride and 
associated dialkyl- and alkylarylesters of 1,2-benzenedicarboxylic 
acid, commonly known as phthalate plasticizers.''
    CBD requests that discarded PVC be listed as a hazardous waste, 
which would require a narrative listing of discarded PVC from non-
specific sources be added to the ``F'' list under 40 CFR 261.31, the 
requirements for which are specified in 40 CFR 261.11.

C. How is the EPA addressing discarded PVC?

    The EPA regulates the management of solid waste, including 
discarded plastics such as PVC, under RCRA. RCRA sets forth different 
standards for different types of waste, but in general prohibits open 
dumping and requires that landfills have structures and procedures to 
prevent release of waste.
    The EPA Strategic Plan of 2022-2026 (U.S. EPA 2022) sets forth 
priorities to reduce waste and prevent environmental contamination 
(Objective 6.2) including ``EPA will administer grant programs to 
improve Tribal, state, and local solid waste management programs and 
infrastructure and education and outreach on waste prevention. EPA also 
will address land-based contributions to the mismanagement of post-
consumer materials and plastic waste.'' Further information about the 
management of discarded plastic, including discarded PVC, can be found 
at https://www.epa.gov/facts-and-figures-about-materials-waste-and-recycling/advancing-sustainable-materials-management.
    The EPA Strategic Plan also sets priorities to protect and restore 
waterbodies and watersheds (Objective 5.2) including ``EPA also will 
engage in both domestic and international partnerships to support trash 
pollution prevention programs, recycling efforts in rural and suburban 
communities, and waterfront revitalization.'' and ``Implement programs 
to prevent or reduce nonpoint source pollution, including nutrients and 
plastic pollution.'' Further information about the EPA's actions on 
plastic pollution in bodies of water, including marine plastic 
pollution as directed by the Save Our Seas 2.0 Act of 2020 (Pub. L. 
116-224) signed into law in December 2020, can be found at https://www.epa.gov/trash-free-waters.

IV. Reasons for the EPA's Tentative Denial of the Petition

A. Petition Does Not Adequately Support Regulation of Discarded PVC 
Under RCRA

    The Petition does not provide sufficient evidence to suggest that 
listing discarded PVC as a hazardous waste would have a meaningful 
impact, if any, on reducing exposure to phthalates, including 
phthalates used as plasticizers in some PVC products. The rulemaking 
the petition is seeking under RCRA is, by definition, limited to 
hazards that present a substantial present or potential hazard to human 
health or the environment when solid waste is improperly treated, 
stored, transported or disposed of, or otherwise managed (40 CFR 
261.11), which does not appear to correspond to the studies or data 
cited in the petition. As a result, the information provided about 
potential exposures during use of PVC is not relevant.
    The petition identifies three primary potential harms, all related 
to phthalate plasticizers, that are related to disposal: (1) 
Environmental exposure from marine litter; (2) fugitive leachate from 
poorly lined landfills; and (3) atmospheric exposure from incineration. 
However, the petition does not identify any cases or situations where 
hazardous exposure to phthalate plasticizers results from discarded PVC 
under current waste management practices.
    First, RCRA already prohibits open dumping of any solid waste, 
which includes marine plastic litter (40 CFR 257.1 through 257.4). 
Classification of PVC as hazardous waste under RCRA would not introduce 
new controls to prevent marine litter.
    Second, RCRA already requires that landfills control both blowing 
litter and leachate (40 CFR 258.20 through 258.29). Classification of 
discarded PVC as hazardous waste, i.e., requiring disposal at a 
hazardous waste facility, would not change the types of controls 
required for existing landfills containing discarded PVC.
    Third, regarding incineration, RCRA provides that air emissions 
from thermal processing of municipal-type solid waste are governed by 
the Clean Air Act (40 CFR 240.205). Standards for air emissions of 
incineration are not regulated by RCRA. Classification of discarded PVC 
as hazardous waste could impose additional requirements for 
incineration facilities (40 CFR 264.340 through 264.351), but it is not 
clear whether such requirements would reduce phthalate emissions.
    Fourth, the Petition does not provide evidence for the release of 
hazardous constituents from discarded PVC, such as the leaching of 
plasticizers listed on Appendix VIII of 40 CFR part 261, that would 
require management as a hazardous waste as opposed to non-hazardous 
solid waste.

B. The EPA Has Higher Priorities for Limited Available Resources

    In addition to the reasons provided above, based on the information 
presented in the Petition, the resources that the EPA would have to 
allocate to list PVC as a hazardous waste are unwarranted and would 
preclude the EPA from pursuing more pressing rulemakings, 
implementation, and reviews with respect to currently identified 
hazards under RCRA.
    Listing hazardous wastes is a resource-intensive process. The EPA 
must carefully consider the eleven regulatory factors in 40 CFR 
261.11(a)(3). While the Petition discusses each of these factors, it 
often conflates exposure from the use of PVC (and specifically 
phthalate constituents in PVC) with potential hazards from the 
treatment storage and disposal of PVC. Moreover, the EPA would need to 
conduct extensive research to understand the scope and impact of the 
proposed ruling, including a research survey of all potentially 
impacted industries and facilities. Indeed, the last rulemaking that 
led to a new hazardous waste listing in 2002 (Paint) required more than 
2 full-time equivalent (FTE) staff for 5 years. In addition, funding to 
maintain and advance RCRA regulations has been flat or reduced for more 
than 20 years. By comparison, the number of FTE for the entire 
hazardous waste listing program in RCRA is currently 1.5. Because of 
the scope and required analysis, the EPA estimates that the resources 
required to propose listing discarded PVC as a hazardous waste would 
require more than 2 FTE over the course of 5 years. Meanwhile, OLEM is 
currently considering more than 20 petitions, including more than 10

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regarding RCRA (https://www.epa.gov/petitions/petitions-office-land-and-emergency-management), and is also engaged in rulemaking. Acting on 
the proposed listing of discarded PVC as a hazardous waste would delay 
rulemakings that address hazards specifically identified by the EPA 
where regulating the treatment, storage, transport, or disposal of the 
hazard would meaningfully improve public health and the environment.
    Agencies are generally given significant discretion in setting 
priorities and determining where the limited resources will be devoted. 
The Petition does not present evidence that discarded PVC presents a 
substantial present or potential hazard to human health or the 
environment when solid waste is improperly treated, stored, transported 
or disposed of, or otherwise managed. Accordingly, at this time and 
considering the constraints discussed above, the EPA will not divert 
limited resources from priority actions for a rulemaking to list 
discarded PVC as a hazardous waste.

V. References

    The following is a listing of the documents that are specifically 
referenced in this document. The docket includes these documents and 
other information considered by the EPA, including documents that are 
referenced within the documents that are included in the docket, even 
if the referenced document is not physically located in the docket. For 
assistance in locating these other documents, please consult the 
technical person listed under FOR FURTHER INFORMATION CONTACT.

1. CBD. Petition for Rulemaking Pursuant to section 7004(a) of the 
Resource Conservation and Recovery Act, 42 U.S.C. 6974(A), and 
section 21 of the Toxic Substances Control Act, 15 U.S.C. 2620, 
Concerning the Regulation of Discarded Polyvinyl Chloride and 
Associated Chemical Additives. July 29, 2014.
2. Borelli, F., de la Cruz, P., and Paradis, R. 2005. Residual Vinyl 
Chloride Levels in U.S. PVC Resins and Products: Historical 
Perspective and Update. Journal of Vinyl & Additive Technology, June 
2005 65-69. https://doi.org/10.1002/vnl.20040.
3. Carlos, K., de Jager, L., and Begley, T. 2018. Investigation of 
the primary plasticisers present in polyvinyl chloride (PVC) 
products currently authorized as food contact materials. Food Addit. 
Contam. Part A Chem. Anal. Control Expo. Risk Assess., 35(6):1214-
1222. https://doi.org/10.1080/19440049.2018.1447695.
4. Czoga[lstrok]a, J., Pankalla, E., and Turczyn, R. 2021. Recent 
Attempts in the Design of Efficient PVC Plasticizers with Reduced 
Migration. Materials (Basel, Switzerland) 14(4): 844. https://doi.org/10.3390/ma14040844.
5. European Commission, Directorate-General for Environment. 2022. 
The use of PVC (poly vinyl chloride) in the context of a non-toxic 
environment: final report. Publications Office of the European 
Union. https://data.europa.eu/doi/10.2779/375357.
6. Hahladakis, J., Velis, C., Weber, R., Iacovidou, E., and Purnell, 
P. 2018. An overview of chemical additives present in plastics: 
Migration, release, fate and environmental impact during their use, 
disposal and recycling. Journal of Hazardous Materials 344, 179-199. 
https://doi.org/10.1016/j.jhazmat.2017.10.014.
7. Kim, D.Y.; Chun, S.-H.; Jung, Y.; Mohamed, D.F.M.S.; Kim, H.-S.; 
Kang, D.-Y.; An, J.-W.; Park, S.-Y.; Kwon, H.-W.; Kwon, J.-H.. 2020. 
Phthalate Plasticizers in Children's Products and Estimation of 
Exposure: Importance of Migration Rate. International Journal of 
Environmental Research and Public Health, 202017(22) 8582. https://doi.org/10.3390/ijerph17228582.
8. NSF/ANSI 14: Plastics Piping System Components and Related 
Materials.
9. NSF/ANSI 61: Drinking water system components--Health Effects.
10. Organisation for Economic Cooperation and Development (OECD). 
2022. Global Plastics Outlook: Policy Scenarios to 2060. OECD 
Publishing, Paris. https://doi.org/10.1787/aa1edf33-en.
11. United States Environmental Protection Agency. 2020. Advancing 
Sustainable Materials Management: Facts and Figures Report, December 
2020. https://www.epa.gov/facts-and-figures-about-materials-waste-and-recycling/advancing-sustainable-materials-management.
12. United States Environmental Protection Agency. 2022. FY 2022-
2026 EPA Strategic Plan. Washington, DC: U.S. Environmental 
Protection Agency, March 2022. Periodical. https://www.epa.gov/system/files/documents/2022-03/fy-2022-2026-epa-strategic-plan.pdf.

Barry N. Breen,
Acting Assistant Administrator, Office of Land and Emergency 
Management.
[FR Doc. 2023-00478 Filed 1-11-23; 8:45 am]
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