Response To Petition To Classify Discarded Polyvinyl Chloride as RCRA Hazardous Waste, 2089-2092 [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
Environmental Protection
Agency (EPA).
ACTION: Petition response.
AGENCY:
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).
SUMMARY:
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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:
lowrey.daniel@epa.gov.
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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Federal Register / Vol. 88, No. 8 / Thursday, January 12, 2023 / Notices
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
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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.
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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 Ulisted 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
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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; Czoga5a, 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; Czoga5a, 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.
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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 1,2benzenedicarboxylic 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 landbased 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-aboutmaterials-waste-and-recycling/
advancing-sustainable-materialsmanagement.
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
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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
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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 nonhazardous 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-andemergency-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.
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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. Czoga5a, J., Pankalla, E., and Turczyn, R.
2021. Recent Attempts in the Design of
Efficient PVC Plasticizers with Reduced
Migration. Materials (Basel, Switzerland)
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17:36 Jan 11, 2023
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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-aboutmaterials-waste-and-recycling/
advancing-sustainable-materialsmanagement.
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-strategicplan.pdf.
Barry N. Breen,
Acting Assistant Administrator, Office of
Land and Emergency Management.
[FR Doc. 2023–00478 Filed 1–11–23; 8:45 am]
BILLING CODE 6560–50–P
ENVIRONMENTAL PROTECTION
AGENCY
[FRL–10556–01–OA]
Public Meetings of the Science
Advisory Board Hexavalent Chromium
Review Panel
Environmental Protection
Agency (EPA).
ACTION: Notice.
AGENCY:
The Environmental Protection
Agency (EPA) Science Advisory Board
SUMMARY:
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(SAB) Staff Office announces two public
meetings of the Science Advisory Board
Hexavalent Chromium Review Panel.
The purpose of the meetings is to
discuss charge questions, listen to
agency presentations, listen to public
comments and peer review the EPA’s
draft IRIS Toxicological Review of
Hexavalent Chromium.
DATES: The public meeting for the
Science Advisory Board Hexavalent
Chromium Review Panel to receive the
briefing from EPA will be held on
February 15, 2023, from 12 noon to 5
p.m. The public meeting for the Science
Advisory Board Hexavalent Chromium
Review Panel to peer review the
documents will be held on March 29–
31, 2023, in Washington, DC. All times
listed are in Eastern Standard Time.
ADDRESSES: The meeting on February
15, 2023, will be conducted virtually.
Please refer to the SAB website at
https://sab.epa.gov for information on
how to attend the meeting. The March
29–31, 2023, meeting(s) will be
conducted in person at Renaissance
Arlington Capital View Hotel, located at
2800 S Potomac Ave., Arlington, VA
22202, and virtually. Please refer to the
SAB website at https://sab.epa.gov for
information on how to attend the
meeting.
Any
member of the public who wants further
information concerning this notice may
contact Dr. Suhair Shallal, Designated
Federal Officer (DFO), via telephone
(202) 564–2057, or email at
shallal.suhair@epa.gov. General
information about the SAB, as well as
any updates concerning the meetings
announced in this notice can be found
on the SAB website at https://
sab.epa.gov.
FOR FURTHER INFORMATION CONTACT:
SUPPLEMENTARY INFORMATION:
Background: The SAB was
established pursuant to the
Environmental Research, Development,
and Demonstration Authorization Act
(ERDDAA), codified at 42 U.S.C. 4365,
to provide independent scientific and
technical advice to the EPA
Administrator on the scientific and
technical basis for agency positions and
regulations. The SAB is a Federal
Advisory Committee chartered under
the Federal Advisory Committee Act
(FACA), 5 U.S.C., app. 2. The SAB will
comply with the provisions of FACA
and all appropriate SAB Staff Office
procedural policies. Pursuant to FACA
and EPA policy, notice is hereby given
that the Science Advisory Board
Hexavalent Chromium Review Panel
will hold two public meeting(s) to
discuss charge questions, listen to
E:\FR\FM\12JAN1.SGM
12JAN1
]]>Agencies
[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
[[Page 2090]]
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;
[[Page 2091]]
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
[[Page 2092]]
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]
BILLING CODE 6560-50-P
