Put This In Your Pipe and Leach It – EPA Considering Whether to Designate Discarded Products Containing PVC as a RCRA Hazardous Waste

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:

  • PVC Disposal: As stated above, PVC is used in hundreds of commercial products ranging from school supplies to garden hoses to food packaging and more.  All these items are often discarded by both U.S. households and commercial entities as general trash that is disposed in a municipal solid waste landfill.[9]  Regulation of discarded PVC products as a RCRA hazardous waste may require an entirely new waste handling/product stewardship protocol including maintaining proper state and federal paperwork for manifesting discarded PVC products, installation of proper equipment for waste storage and disposal or recycling at the proper facilities. 
  • PVC and the Retail Industry: Beyond typical household or commercial waste disposal, the retail industry may be impacted when PVC products are returned by customers or there is a need to dispose of unused PVC products.  Currently, these returned or excess inventory may be disposed of in the general trash or sold in bulk to third parties.   However, a change in status may put discarded PVC products on the ever-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]
  • PVC in Construction Materials: PVC is used in the construction industry for piping, wiring conduit and other applications.[11]  PVC construction materials are typically disposed of in Construction and Demolition (C&D) waste landfills.  Designation of discarded PVC materials as RCRA hazardous waste could have significant impacts on the construction industry – both demolition and new construction - potentially prohibiting materials from disposal in a C&D landfill and increasing the costs of construction.[12] 
  • PVC Recycling: Although most PVC products are disposed of in municipal and C&D landfills , PVC products are also recycled.  Classification as a RCRA hazardous waste could complicate recycling and beneficial reuse efforts.
  • PVC Abandoned “In Place:”  PVC piping and other PVC products are often left in place as the completion of the products’ useful life.  For example, PVC piping is used as casing for groundwater monitoring wells in contaminated site investigation and remediation and typically are closed-in-place at the completion of investigation or remediation activities.  Furthermore, PVC is often the piping of choice for wastewater utilities and may be left in place when upgrading a line.  These operational practices could be impacted by the designation of PVC as a hazardous waste as such activities could be considered “disposal” of a hazardous waste.
  • Where Will Discarded PVC Wastes Go?  It is unclear from CBD’s Petition whether they are seeking discarded PVC products to be designated as a characteristic or a listed hazardous waste.  If the latter, the options for disposing and recycling PVC discarded products may become narrow and complicated.  For example, a completely new hazardous waste stream could overtax current hazardous waste landfill capacity if EPA does not develop alternate disposal or recycling alternatives.[13]
  • Next Steps.  If EPA grants CBD’s petition, potentially regulated industries should be prepared to receive and respond to EPA Information Requests as the agency seeks to build its administrative record regarding the generation, handling and disposal of PVC and PVC products, as well as current waste generation and disposal practices.  Companies should be prepared to supplement EPA’s record with credible ecological and human health data on PVC exposure and degradation to rebut the information provided by CBD and other interested organizations.  In addition, EPA should be provided credible economic data to support the significant impacts that designation of classifying this ubiquitous product as a RCRA 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.

    [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. 

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