Response to Petition To Classify Discarded Polyvinyl Chloride as RCRA Hazardous Waste, 32416-32421 [2024-09031]

Download as PDF ddrumheller on DSK120RN23PROD with NOTICES1 32416 Federal Register / Vol. 89, No. 82 / Friday, April 26, 2024 / Notices (CIP) in the above-referenced docket. CIP requests authorization to construct and operate two new natural gas compressor units (42,000 horsepower and 5,350 horsepower), associated aboveground facilities, 1,100 feet of 36inch-diameter pipeline, and ancillary and auxiliary equipment at its existing Holbrook Compressor Station in Calcasieu Parish, Louisiana. CIP’s stated purpose for this Project is to provide up to 1,079,000 dekatherms per day of firm natural gas transportation capacity to the CIP system. This capacity would supply feed gas to the Cameron LNG Terminal (in Cameron Parish, Louisiana) to meet shippers’ incremental demand. The EA assesses the potential environmental effects of the construction and operation of the Holbrook Expansion Project in accordance with the requirements of the National Environmental Policy Act (NEPA). The FERC staff concludes that approval of the proposed project, with appropriate mitigating measures, would not constitute a major Federal action significantly affecting the quality of the human environment. The Commission mailed a copy of the Notice of Availability of the EA to Federal, State, and local government representatives and agencies; elected officials; environmental and public interest groups; potentially interested Native American Tribes; affected landowners; and newspapers and libraries in the Project area. The EA is only available in electronic format. It may be viewed and downloaded from the FERC’s website (www.ferc.gov), on the natural gas environmental documents page (https://www.ferc.gov/ industries-data/natural-gas/ environment/environmentaldocuments). In addition, the EA may be accessed by using the eLibrary link on the FERC’s website. Click on the eLibrary link (https://elibrary.ferc.gov/ eLibrary/search), select ‘‘General Search’’ and enter the docket number in the ‘‘Docket Number’’ field, excluding the last three digits (i.e., CP24–1). Be sure you have selected an appropriate date range. For assistance, please contact FERC Online Support at FercOnlineSupport@ferc.gov or toll free at (866) 208–3676, or for TTY, contact (202) 502–8659. The EA is not a decision document. It presents Commission staff’s independent analysis of the environmental issues for the Commission to consider when addressing the merits of all issues in this proceeding. Any person wishing to comment on the EA may do so. Your comments should focus on the EA’s VerDate Sep<11>2014 20:31 Apr 25, 2024 Jkt 262001 disclosure and discussion of potential environmental effects, reasonable alternatives, and measures to avoid or lessen environmental impacts. The more specific your comments, the more useful they will be. To ensure that the Commission has the opportunity to consider your comments prior to making its decision on this project, it is important that we receive your comments in Washington, DC on or before 5 p.m. eastern time on May 20, 2024. For your convenience, there are three methods you can use to file your comments to the Commission. The Commission encourages electronic filing of comments and has staff available to assist you at (866) 208–3676 or FercOnlineSupport@ferc.gov. Please carefully follow these instructions so that your comments are properly recorded. (1) You can file your comments electronically using the eComment feature on the Commission’s website (www.ferc.gov) under the link to FERC Online. This is an easy method for submitting brief, text-only comments on a project; (2) You can also file your comments electronically using the eFiling feature on the Commission’s website (www.ferc.gov) under the link to FERC Online. With eFiling, you can provide comments in a variety of formats by attaching them as a file with your submission. New eFiling users must first create an account by clicking on ‘‘eRegister.’’ You must select the type of filing you are making. If you are filing a comment on a particular project, please select ‘‘Comment on a Filing’’; or (3) You can file a paper copy of your comments by mailing them to the Commission. Be sure to reference the project docket number (CP24–1–000) on your letter. Submissions sent via the U.S. Postal Service must be addressed to: Debbie-Anne A. Reese, Acting Secretary, Federal Energy Regulatory Commission, 888 First Street NE, Room 1A, Washington, DC 20426. Submissions sent via any other carrier must be addressed to: Debbie-Anne A. Reese, Acting Secretary, Federal Energy Regulatory Commission, 12225 Wilkins Avenue, Rockville, Maryland 20852. Filing environmental comments will not give you intervenor status, but you do not need intervenor status to have your comments considered. Only intervenors have the right to seek rehearing or judicial review of the Commission’s decision. At this point in this proceeding, the timeframe for filing timely intervention requests has expired. Any person seeking to become a party to the proceeding must file a PO 00000 Frm 00026 Fmt 4703 Sfmt 4703 motion to intervene out-of-time pursuant to Rule 214(b)(3) and (d) of the Commission’s Rules of Practice and Procedures (18 CFR 385.214(b)(3) and (d)) and show good cause why the time limitation should be waived. Motions to intervene are more fully described at https://www.ferc.gov/how-intervene. Additional information about the project is available from the Commission’s Office of External Affairs, at (866) 208–FERC, or on the FERC website (www.ferc.gov) using the eLibrary link. The eLibrary link also provides access to the texts of all formal documents issued by the Commission, such as orders, notices, and rulemakings. The Commission’s Office of Public Participation (OPP) supports meaningful public engagement and participation in Commission proceedings. OPP can help members of the public, including landowners, environmental justice communities, Tribal members and others, access publicly available information and navigate Commission processes. For public inquiries and assistance with making filings such as interventions, comments, or requests for rehearing, the public is encouraged to contact OPP at (202) 502–6595 or OPP@ ferc.gov. In addition, the Commission offers a free service called eSubscription which allows you to keep track of all formal issuances and submittals in specific dockets. This can reduce the amount of time you spend researching proceedings by automatically providing you with notification of these filings, document summaries, and direct links to the documents. Go to https://www.ferc.gov/ ferc-online/overview to register for eSubscription. Dated: April 19, 2024. Debbie-Anne A. Reese. Acting Secretary. [FR Doc. 2024–08925 Filed 4–25–24; 8:45 am] BILLING CODE 6717–01–P ENVIRONMENTAL PROTECTION AGENCY [EPA–HQ–OLEM–2022–0971; FRL–10181– 02–OLEM] Response to Petition To Classify Discarded Polyvinyl Chloride as RCRA Hazardous Waste Environmental Protection Agency (EPA). ACTION: Final petition response. AGENCY: The Environmental Protection Agency (EPA or the Agency) is responding to a rulemaking petition SUMMARY: E:\FR\FM\26APN1.SGM 26APN1 Federal Register / Vol. 89, No. 82 / Friday, April 26, 2024 / Notices from the Center for Biological Diversity requesting that discarded polyvinyl chloride be listed as a hazardous waste under the Resource Conservation and Recovery Act. The Agency published a tentative denial of the rulemaking petition on January 12, 2023. Today, after review of the public comments, EPA is affirming that decision. The petition is denied. DATES: This final action is effective on April 26, 2024. 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. General Information A. Does this action apply to me? B. How can I get copies of this document and other related information? C. List of Abbreviations and Acronyms D. What action is the EPA taking? E. What is the EPA’s authority for taking this action? F. What are the incremental costs and benefits of this action? II. Background A. Background on Polyvinyl Chloride B. How is the EPA addressing discarded polyvinyl chloride? C. Regulatory Background III. Petition for Rulemaking, EPA’s Tentative Denial, and Comments Received A. Summary of the Petitioner’s Requested Changes and EPA’s Tentative Denial B. Summary of Comments Received IV. Reasons for EPA’s Final Denial of the Petition V. References ddrumheller on DSK120RN23PROD with NOTICES1 I. General Information 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 denial of the 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. www.regulations.gov or in hard copy at the EPA Docket Center, WJC West Building, Room 3334, 1301 Constitution Ave. NW, Washington, DC. The Docket Center’s hours of operations are 8:30 a.m.–4:30 p.m., Monday–Friday (except Federal Holidays). For further information on the EPA Docket Center services and the current status, see: https://www.epa.gov/dockets. 2. Electronic Access. You may access this Federal Register document electronically from https:// www.federalregister.gov/documents/ current. C. List of Abbreviations and Acronyms 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 L liter mg milligram PVC Polyvinyl chloride RCRA Resource Conservation and Recovery Act TC Toxicity characteristic TCLP Toxicity characteristic leaching procedure D. What action is the EPA taking? The EPA is providing notice of and finalizing its 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 also publishing its response to public comments on the tentative denial. E. 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 EPA’s implementing regulations at 40 CFR part 260.20, 261.3, 261.10, and 261.11. Authority for the identification and listing of hazardous wastes is granted pursuant to 42 U.S.C. 6903 and 6921, and implementing regulations 40 B. How can I get copies of this document CFR parts 260 and 261. and other related information? F. What are the incremental costs and 1. Docket. EPA has established a benefits of this action? docket for this action under Docket ID As this action proposes no regulatory No. EPA–HQ–OLEM–2022–0971. changes, this action will have neither Publicly available docket materials are incremental costs nor benefits. available either electronically through VerDate Sep<11>2014 20:31 Apr 25, 2024 Jkt 262001 PO 00000 Frm 00027 Fmt 4703 Sfmt 4703 32417 II. Background A. Background on Polyvinyl Chloride 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. Additives include stabilizers that limit degradation from sources such as oxygen, heat, light, and flame, and plasticizers that make the PVC more flexible. All PVC contains stabilizers. Some PVC contains stabilizers containing metals such as barium, cadmium, and/ or lead. Other PVC contains stabilizers based on calcium, zinc, and/or tin (Hahladakis et al. 2018; European Commission 2022). PVC may contain plasticizers, with the concentration and identity of plasticizers varying widely based on the desired properties of the final material. Plasticizers that are phthalates include but are not limited to: di(2-ethylhexyl) phthalate (DEHP), dibutyl phthalate (DBP), diethyl phthalate (DEP), dimethyl phthalate (DMP), di-noctylphthalate (DnOP), benzyl butyl phthalate (BBP), diisononyl phthalate (DINP) and diisodecyl phthalate (DIDP) (Hahladakis et al. 2018; Czoga5a, Pankalla, and Turczyn 2021). Other plasticizers that are not phthalates include adipates and trimellitates. Rigid forms of PVC contain little to no plasticizers while more flexible forms require the addition of more plasticizers. 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. Typically, plasticizers constitute from zero up to about 50 percent of the product by weight, although higher concentrations have been reported (Hahladakis et al. 2018; Kim et al. 2020; European Commission 2022). Voluntary data from 2000 indicates at least two thirds of PVC is of rigid grades that do not typically contain any amount of plasticizers (Borrelli et al. 2005). B. How is the EPA addressing discarded PVC? Separate from the Petition and EPA’s action on it, the EPA regulates the management of solid waste, including discarded plastics such as PVC, under RCRA. EPA has established different standards for units accepting different types of non-hazardous waste, see 40 E:\FR\FM\26APN1.SGM 26APN1 ddrumheller on DSK120RN23PROD with NOTICES1 32418 Federal Register / Vol. 89, No. 82 / Friday, April 26, 2024 / Notices CFR parts 257–258, and RCRA generally prohibits non-compliant ‘‘open dumping’’ of non-hazardous solid waste. 42 U.S.C. 6945(a). 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 that ‘‘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 that ‘‘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 that EPA will ‘‘[i]mplement 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/trash-free-watersprojects (EPA 2024a). In April of 2023 the EPA released for public comment and peer review a draft national strategy to prevent plastic pollution (EPA 2023). Proposed actions from the draft national strategy to prevent plastic pollution (EPA 2024b) include to: • Reduce the production and consumption of single-use, unrecyclable, or frequently littered plastic products. • Minimize pollution across the life cycle of plastic products. • Increase public understanding of the impact of plastic mismanagement and how to appropriately manage plastic products and other waste. • Identify and implement policies, programs, technical assistance, and compliance assurance actions that effectively prevent trash/microplastics from getting into waterways or remove VerDate Sep<11>2014 20:31 Apr 25, 2024 Jkt 262001 such waste from waterways once it is there. C. Regulatory Background EPA defines hazardous waste for purposes of the RCRA hazardous waste regulations in 40 CFR 261.3. There are three ways by which a solid waste may be listed as hazardous waste under the RCRA hazardous waste regulations. See 40 CFR 261.11(a). Two of these are relevant to the Petition: 40 CFR 261.11(a)(1) and (a)(3). A solid waste may be listed as a hazardous waste pursuant to 40 CFR 261.11(a)(1) if it ‘‘exhibits any of the characteristics of a hazardous waste.’’ The four characteristics of a hazardous waste are found in 40 CFR 261.21–24. The most relevant to the Petition is the toxicity characteristic, found in 40 CFR 261.24. A solid waste exhibits the characteristic of toxicity if it leaches specified toxic contaminants in the toxicity characteristic leaching procedure (TCLP) in excess of the regulatory limit listed in Table 1 of 40 CFR 261.24. See 40 CFR 261.24(a). A solid waste may be listed as a hazardous waste pursuant to 261.11(a)(3) if ‘‘it contains any of the toxic constituents listed in Appendix VIII [to 40 CFR part 261],’’ and the Administrator concludes, after considering eleven factors, that it ‘‘is capable of posing a substantial present or potential hazard to human health or the environment when improperly treated, stored, transported or disposed of, or otherwise managed.’’ 40 CFR 261.11(a)(3). EPA lists hazardous constituents on Appendix VIII to 40 CFR part 261. Pursuant to 42 U.S.C. 6974, any person may petition the Administrator to conduct a RCRA rulemaking, including requesting a listing of a hazardous waste. EPA’s regulations require that ‘‘[a]fter evaluating all public comments the Administrator will make a final decision [on the petition] by publishing in the Federal Register a regulatory amendment or a denial of the petition.’’ 40 CFR 260.20(e). The regulations require that every petition must include ‘‘a statement of the need and justification for the proposed action, including any supporting tests, studies, or other information.’’ 40 CFR 260.20(b)(4). While 40 CFR 260.20 does not provide specific information requirements for hazardous waste listing petitions, EPA has clarified that the information relevant to the listing criteria set forth in 261.11(a) is useful for petitioners to include in such a petition. See 45 FR 33070. Therefore, when a petition requesting a listing of a substance as a hazardous waste, as PO 00000 Frm 00028 Fmt 4703 Sfmt 4703 supplemented by the public comments, provides insufficient information to consider all of the relevant listing criteria under 261.11(a), EPA is not required to grant the petition and may deny the petition as a matter of its discretion for having provided an insufficient justification as required by 260.20(b)(4). EPA’s discretion under 260.20 includes the choice of whether to pursue a matter beyond what is provided in the petition and any subsequent public comments, where they fail to provide sufficient indicia of a hazard to human health or the environment. III. Petition for Rulemaking, EPA’s Tentative Denial, and Comments Received A. Summary of the Petitioner’s Requested Changes and EPA’s Tentative Denial On July 24, 2014, the Center for Biological Diversity (CBD) petitioned the EPA 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.’’ In doing so, CBD requested 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. On January 12, 2023, the Agency published a tentative denial of the Petition. In the denial, the Agency explained that petitioners had not provided sufficient evidence to support a listing of discarded PVC as a RCRA hazardous waste as the Petition did not provide sufficient information that discarded PVC, under current waste management practices, ‘‘present[s] 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).’’ Rather, much of the information provided in the Petition concerned potential exposures during the use of PVC as a product. Based on the information provided in the Petition, the Agency proposed to determine that a listing of discarded PVC was unwarranted at this time. B. Summary of Comments Received The Agency received public comments on the tentative denial during the 30-day comment period that ran from January 12, 2023, through February 13, 2023. On February 23, 2023, after the comment period had closed, the E:\FR\FM\26APN1.SGM 26APN1 ddrumheller on DSK120RN23PROD with NOTICES1 Federal Register / Vol. 89, No. 82 / Friday, April 26, 2024 / Notices Agency received a request to extend the comment period for an additional thirty days following the train derailment in East Palestine, Ohio. The Agency chose not to reopen the comment period because the release in East Palestine, Ohio did not have a direct bearing on the Petition. Furthermore, the Agency had entered into a consent decree with the Center for Biological Diversity (see docket EPA–HQ–OGC–2022–0406) in which the EPA had committed to sign the final determination on the Petition by April 12, 2024 (which the parties subsequently stipulated to extend to April 26, 2024). The requested extension of the comment period could have interfered with meeting that commitment. The Agency received 4,543 comments on the tentative denial. 63 comments supported the tentative denial, including 2 letter writing campaigns representing approximately 52 of the comments, with 10 substantive and distinct comments. 4,480 comments were opposed to the denial, including a letter writing campaign covering approximately 4464 of the comments, with 3 substantive and distinct comments. The comments supporting the tentative denial largely echoed the language of EPA’s tentative denial, including the lack of evidence in the Petition that discarded PVC meets the 40 CFR 261.11 listing criteria, Agency discretion, the variable composition of PVC, other EPA efforts addressing plastic pollution, and the existing regulations on landfills, incinerators, and toxic contaminants. These commenters also cited recent EPA actions under the Toxic Substances Control Act (TSCA) related to the risk evaluations of vinyl chloride and phthalates and noted that the studies provided by the petitioner related to direct phthalate exposure which, the commenters argued, cannot substitute for evidence of potential exposure or effects from discarded PVC. Additional comments expressed concern about the potential regulatory burden and/or complexity of complying with the changes requested by the Petition, particularly with regard to generator status, regulated medical waste, and recycling/sustainability efforts. The comments opposed to the denial of the Petition echoed the language of CBD’s petition, expressing concern about potential releases of toxic constituents during the manufacture, use, and disposal of PVC. Specific concerns regarding disposal of PVC included plastic pollution and its effect on the environment, the scope of existing regulations, presence in VerDate Sep<11>2014 20:31 Apr 25, 2024 Jkt 262001 landfills and incinerators, and potential release of hazardous constituents from landfill leachate and incineration. Commenters expressed concern about the potential toxicity of discarded PVC resin apart from any consideration of additives (i.e., phthalate plasticizers and metals from heat stabilizers). Additionally, the petitioner submitted 30 additional scientific studies as support. Responses to specific comments may be found in the response to comments document published separately in this docket. IV. Reasons for EPA’s Final Denial of the Petition Pursuant to 40 CFR 260.20, the Petition, as supplemented by public comments, must provide sufficient information to justify the listing of discarded PVC as a hazardous waste. The Petition and public comments fail to do so. The Petition does not specifically request that EPA list discarded PVC as a hazardous waste pursuant to 40 CFR 261.11(a)(1). However, it does provide some information that could be construed as relevant to a request for such a listing. The Petition does specifically request that EPA conduct a hazardous waste listing pursuant to 40 CFR 261.11(a)(3). Accordingly, EPA has considered information to be relevant to the Petition if it is relevant to either 261.11(a)(1) or (a)(3). EPA proposed to deny the Petition based on the lack of information provided by Petitioners. After considering public comment on the tentative denial, EPA concludes that the Petition, even as supplemented by the information received through the public comment period, still provides insufficient information to justify a listing of discarded PVC as a hazardous waste at this time under either 261.11(a)(1) or 261.11(a)(3). With respect to 40 CFR 261.11(a)(1), the Petition states that PVC may contain any of the following hazardous contaminants found in Table 1 of 40 CFR 261.24: vinyl chloride monomer (D043), barium (D005), cadmium (D006), and lead (D008). Under EPA’s regulations, a solid waste exhibits the hazardous waste characteristic of toxicity (TC) when the values in Method 1311 (TCLP) exceed 0.2 milligrams per liter (mg/L), 100 mg/L, 1 mg/L, and 5 mg/L, respectively, for these contaminants. However, the Petition and comments are insufficient because they do not provide evidence that discarded PVC leaches these hazardous contaminants in excess of their TC regulatory levels. Additionally, EPA is also aware of at least one study PO 00000 Frm 00029 Fmt 4703 Sfmt 4703 32419 suggesting that discarded PVC may not exhibit the hazardous waste characteristic of toxicity for vinyl chloride. Specifically, a survey of American vinyl producers conducted in 2000 found concentrations of residual vinyl chloride monomer to be too low to exceed the vinyl chloride TC regulatory level (Borrelli et al. 2005). That is, the study found that residual vinyl chloride concentrations were less than twenty times the TC regulatory level for vinyl chloride (20 × 0.2 mg/L = 4 mg/L), which according to agency guidance may be classified as nonhazardous with respect to the presence of vinyl chloride without having to conduct a TCLP test (https:// www.epa.gov/hw-sw846/hazardouswaste-characteristics#question23). Therefore, given the insufficient information to determine whether hazardous contaminants in discarded PVC exceed their TC regulatory levels, EPA denies the Petition to the extent it requests a listing under 40 CFR 261.11(a)(1). With respect to 40 CFR 261.11(a)(3), the Petition does provide some evidence that discarded PVC may contain one or more toxic constituents listed in Appendix VIII. Specifically, petitioner provided evidence that discarded PVC contains residual vinyl chloride monomer, and may contain barium, cadmium, lead, DEHP, DBP, DEP, DMP, DnOP, and BBP. Nevertheless, the Petition, even as supplemented by the information received through the public comment period, does not provide sufficient information that discarded PVC is ‘‘capable of posing a substantial present or potential hazard to human health or the environment when improperly treated, stored, transported or disposed of, or otherwise managed’’ based on the eleven factors provided in 40 CFR 261.11(a)(3). 40 CFR 261.11(a)(3). To determine whether discarded PVC meets the 261.11(a)(3) criteria, EPA must consider eleven factors. The discussion below focusses on factors (ii), (iii), (vii), and (ix), detailing how the Petition and comments received provide insufficient information relevant to these criteria. Petitioner’s failure to provide compelling information on these factors is sufficient to support EPA’s final denial. EPA is not relying on an evaluation of, and does not intend to imply the sufficiency of, the evidence provided to support the other factors. EPA received mixed information relevant to factor (ii). Factor (ii) specifies that EPA will consider the concentration of the Appendix VIII constituent in the waste. The petitioner E:\FR\FM\26APN1.SGM 26APN1 ddrumheller on DSK120RN23PROD with NOTICES1 32420 Federal Register / Vol. 89, No. 82 / Friday, April 26, 2024 / Notices provided some evidence that discarded PVC may contain residual vinyl chloride monomer, and that the following toxic constituents may be present due to additives: barium, cadmium, lead, DEHP, DBP, DEP, DMP, DnOP, and BBP. To support this, petitioner claimed that barium, cadmium and lead additives are often present in PVC. Petitioner also made generalized claims from a number of limited sources that the listed phthalates are often used by the PVC industry and may constitute up to eighty percent by weight of certain PVC products. However, EPA also received public comments explaining that all of the toxic constituents that petitioners describe have been largely phased out of PVC in the United States over decades, such that, for example, less than 9 percent of new PVC contains any phthalates (including phthalates not listed on Appendix VIII), and the concentration of residual vinyl chloride monomer may be so low as to not be detectable (Vinyl Institute 2023 p 4, 13– 14). Given the conflicting information on the prevalence and concentrations constituents in PVC, EPA has determined that the Petition and comments received provide insufficient information to consider the concentration of Appendix VIII constituents in discarded PVC. EPA received insufficient information relevant to factor (vii). Factor (vii) specifies that EPA will consider plausible types of improper management to which discarded PVC could be subjected. In evaluating this factor, EPA does not consider spills, accidents, or other unlikely scenarios. See Dithiocarbamate Task Force v. EPA, 98 F.3d 1394, 1400–1401 (D.C. Cir. 1996); 63 FR 64383. Rather, EPA considers the current management practices for the waste at-issue and must identify ‘‘some factual support for a conclusion that a particular mismanagement scenario is plausible.’’ Dithiocarbamate Task Force at 1400. The Petition relies on the presence of plastic pollution and evidence of phthalate exposure as evidence that mismanagement of discarded PVC has occurred and characterizes—without further elaboration—a limited number of sources for the proposition that marine pollution results from flawed waste management techniques. These claims are insufficiently supported in several respects. First, management of discarded PVC depends on the type and source of PVC, but may include disposal in construction and demolition landfills, municipal solid waste landfills, or incineration as municipal solid waste. The Petition fails VerDate Sep<11>2014 20:31 Apr 25, 2024 Jkt 262001 to distinguish between the management practices applicable to the different sources of this PVC waste,1 and therefore, fails to properly identify potential improper management scenarios, or evaluate their plausibility. Second, the Petition fails to explain what amount of plastic pollution, including marine litter, can be attributed to PVC, as opposed to other forms of plastic. Third, the Petition also fails to explain the extent that this pollution has resulted from mismanagement of discarded PVC, as opposed to other sources such as uncontrolled litter or product use that occurs outside of the current waste management regime.2 For all of these reasons, the Petition and comments received provide insufficient evidence for EPA to consider the plausible types of improper management to which discarded PVC could be subjected. EPA also received insufficient information relevant to factors (iii) and (ix). Factor (iii) specifies that EPA will consider the potential of the constituent or any toxic degradation product of the constituent to migrate from the waste into the environment under the types of improper management considered in factor (vii); and factor (ix) specifies that EPA will consider the nature and severity of the human health and environmental damage that has occurred as a result of the improper management of wastes containing the constituent(s). Both of these factors require consideration of plausible mismanagement scenarios. However, as explained above, EPA received insufficient information about the plausible types of mismanagement to which discarded PVC could be subjected. The Petition and comments provided information about potential exposures from the use of PVC products. However, they did not explain why the information is germane to evaluating the potential of the constituent or any toxic degradation product of the constituent to migrate from waste (i.e., discarded PVC) into the environment under the particular environments found in waste management scenarios. Nor did they explain how it is relevant to human health or environmental damage occurring as a result of improper waste management. Finally, the Petition and comments fail to identify any cases or situations where substantial human 1 For example, as noted in unit II.B. of this notice, different federal standards apply to different classifications of non-hazardous waste landfills. 2 See Figure 10 of OECD 2022 for sources of aquatic plastic including product use; See also Table 8 of U.S. EPA 2020, which shows that discarded PVC is less than 3% of the plastic in municipal solid waste. PO 00000 Frm 00030 Fmt 4703 Sfmt 4703 health or environmental damage has occurred from exposure to hazardous constituents in PVC resulting from the management of discarded PVC. As such, the Petition fails to provide enough information to compel EPA to list discarded PVC as a hazardous waste. Nor do the Petition and comments include sufficient information of a potential hazard to human health or the environment that would otherwise justify, in the Agency’s discretion, initiating a rulemaking procedure to supplement the insufficient information provided in the petition and public comments. Accordingly, EPA has determined that the Petition, even as supplemented by the information received through the public comment period, provides insufficient information to justify granting the petition under 260.20. The petition is denied. 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. Borrelli, 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. Czoga5a, 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. 4. 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. 5. 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 E:\FR\FM\26APN1.SGM 26APN1 Federal Register / Vol. 89, No. 82 / Friday, April 26, 2024 / Notices ddrumheller on DSK120RN23PROD with NOTICES1 Hazardous Materials 344, 179–199. https://doi.org/10.1016/j.jhazmat. 2017.10.014. 6. 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. 7. Organisation for Economic Cooperation and Development (OECD). 2022. Global Plastics Outlook: Policy Scenarios to 2060—Policy Highlights. OECD Publishing, Paris. https://read.oecdilibrary.org/view/?ref=1143_114348188j1bxuktr&title=Global-PlasticsOutlook-Policy-Scenarios-to-2060-PolicyHighlights. 8. 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. 9. 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. 10. United States Environmental Protection Agency. 2023. Draft National Strategy to Prevent Plastic Pollution: Executive Summary, April 2023. https:// www.epa.gov/system/files/documents/ 2023-04/Draft_National_Strategy_to_ Prevent_Plastic_Pollution_Executive_ Summary.pdf. 11. United States Environmental Protection Agency. 2024a. Trash Free Waters Projects, Retrieved March 28, 2024. https://www.epa.gov/trash-free-waters/ trash-free-waters-projects. 12. United States Environmental Protection Agency. 2024b. Draft National Strategy to Prevent Plastic Pollution, Retrieved March 28, 2024. https://www.epa.gov/ circulareconomy/draft-national-strategyprevent-plastic-pollution. 13. Vinyl Institute. 2023. Public Comment. EPA–HQ–OLEM–2022–0971–0028 Attachment 1. Michael S. Regan, Administrator. [FR Doc. 2024–09031 Filed 4–25–24; 8:45 am] BILLING CODE 6560–50–P ENVIRONMENTAL PROTECTION AGENCY [EPA–HQ–OW–2003–0033; FRL—11929–01– OMS] Agency Information Collection Activities; Submission to the Office of Management and Budget for Review and Approval; Comment Request; Modification of Secondary Treatment Requirements for Discharges Into Marine Waters (Renewal) Environmental Protection Agency (EPA). ACTION: Notice. AGENCY: The Environmental Protection Agency (EPA) has submitted an information collection request (ICR), Modification of Secondary Treatment Requirements for Discharges into Marine Waters (EPA ICR Number 0138.13, OMB Control Number 2040– 0088) to the Office of Management and Budget (OMB) for review and approval in accordance with the Paperwork Reduction Act. This is a proposed extension of the ICR, which is currently approved through April 30, 2024. Public comments were previously requested via the Federal Register on August 4, 2023, during a 60-day comment period. This notice allows for an additional 30 days for public comments. DATES: Comments may be submitted on or before May 28, 2024. ADDRESSES: Submit your comments, referencing Docket ID Number EPA– HQ–OW–2003–0033, to EPA online using www.regulations.gov (our preferred method), by email to OWDocket@epa.gov, or by mail to: EPA Docket Center, Environmental Protection Agency, Mail Code 28221T, 1200 Pennsylvania Ave. NW, Washington, DC 20460. EPA’s policy is that all comments received will be included in the public docket without change including any personal information provided, unless the comment includes profanity, threats, information claimed to be Confidential Business Information (CBI) or other information whose disclosure is restricted by statute. Submit written comments and recommendations to OMB for the proposed information collection within 30 days of publication of this notice to www.reginfo.gov/public/do/PRAMain. Find this particular information collection by selecting ‘‘Currently under 30-day Review—Open for Public Comments’’ or by using the search function. SUMMARY: FOR FURTHER INFORMATION CONTACT: Virginia Fox-Norse, Oceans, Wetlands VerDate Sep<11>2014 20:31 Apr 25, 2024 Jkt 262001 PO 00000 Frm 00031 Fmt 4703 Sfmt 4703 32421 and Communities Division, Office of Water, (4504T), Environmental Protection Agency, 1200 Pennsylvania Ave. NW, Washington, DC 20460; telephone number: 202 566–1266; email address: fox-norse.virginia@epa.gov. SUPPLEMENTARY INFORMATION: This is a proposed extension of the ICR, which is currently approved through April 30, 2024. An agency may not conduct or sponsor and a person is not required to respond to a collection of information unless it displays a currently valid OMB control number. Public comments were previously requested via the Federal Register on August 4, 2023, during a 60-day comment period (88 FR 51813). This notice allows for an additional 30 days for public comments. Supporting documents, which explain in detail the information that EPA will be collecting, are available in the public docket for this ICR. The docket can be viewed online at www.regulations.gov or in person at EPA Docket Center, EPA West, Room 3334, 1301 Constitution Ave. NW, Washington, DC. The telephone number for the Docket Center is 202–566–1744. For additional information about EPA’s public docket, visit https://www.epa.gov/ dockets. Abstract: The Clean Water Act (CWA) section 301(h) allows for a case-by-case review of treatment requirements for publicly owned treatment works (POTW) discharges to marine waters. Eligible POTWs that met the set of environmentally stringent criteria in CWA section 301(h) received a modified National Pollutant Discharge Elimination System permit waiving the secondary treatment requirements for the conventional pollutants-biochemical oxygen demand, suspended solids, and pH. CWA section 301(h) only applies to the 25 POTWs that currently hold CWA 301(h) modified permits. No new applications are accepted. The CWA section 301(h) program involves collecting information from two sources: 1) the POTW, and 2) the state in which the POTW is located. The POTW holding or seeking to renew or revise a CWA section 301(h) modified permit provides application, reapplication, monitoring, and toxic control program information to demonstrate that its discharge meets and continues to meet all the CWA section 301(h) environmental criteria. The state provides state determination and certification information. Form Numbers: None. Respondents/affected entities: Municipalities that currently have CWA section 301(h) modifications from secondary treatment, or have applied for E:\FR\FM\26APN1.SGM 26APN1

Agencies

ENVIRONMENTAL PROTECTION AGENCY

[Federal Register Volume 89, Number 82 (Friday, April 26, 2024)]
[Notices]
[Pages 32416-32421]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2024-09031]


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ENVIRONMENTAL PROTECTION AGENCY

[EPA-HQ-OLEM-2022-0971; FRL-10181-02-OLEM]


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

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final petition response.

-----------------------------------------------------------------------

SUMMARY: The Environmental Protection Agency (EPA or the Agency) is 
responding to a rulemaking petition

[[Page 32417]]

from the Center for Biological Diversity requesting that discarded 
polyvinyl chloride be listed as a hazardous waste under the Resource 
Conservation and Recovery Act. The Agency published a tentative denial 
of the rulemaking petition on January 12, 2023. Today, after review of 
the public comments, EPA is affirming that decision. The petition is 
denied.

DATES: This final action is effective on April 26, 2024.

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. General Information
    A. Does this action apply to me?
    B. How can I get copies of this document and other related 
information?
    C. List of Abbreviations and Acronyms
    D. What action is the EPA taking?
    E. What is the EPA's authority for taking this action?
    F. What are the incremental costs and benefits of this action?
II. Background
    A. Background on Polyvinyl Chloride
    B. How is the EPA addressing discarded polyvinyl chloride?
    C. Regulatory Background
III. Petition for Rulemaking, EPA's Tentative Denial, and Comments 
Received
    A. Summary of the Petitioner's Requested Changes and EPA's 
Tentative Denial
    B. Summary of Comments Received
IV. Reasons for EPA's Final Denial of the Petition
V. References

I. General Information

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 denial of the 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. How can I get copies of this document and other related information?

    1. Docket. EPA has established a docket for this action under 
Docket ID No. EPA-HQ-OLEM-2022-0971. Publicly available docket 
materials are available either electronically through 
www.regulations.gov or in hard copy at the EPA Docket Center, WJC West 
Building, Room 3334, 1301 Constitution Ave. NW, Washington, DC. The 
Docket Center's hours of operations are 8:30 a.m.-4:30 p.m., Monday-
Friday (except Federal Holidays). For further information on the EPA 
Docket Center services and the current status, see: https://www.epa.gov/dockets.
    2. Electronic Access. You may access this Federal Register document 
electronically from https://www.federalregister.gov/documents/current.

C. List of Abbreviations and Acronyms

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
L liter
mg milligram
PVC Polyvinyl chloride
RCRA Resource Conservation and Recovery Act
TC Toxicity characteristic
TCLP Toxicity characteristic leaching procedure

D. What action is the EPA taking?

    The EPA is providing notice of and finalizing its 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 also publishing its response to public comments on the 
tentative denial.

E. 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 EPA's 
implementing regulations at 40 CFR part 260.20, 261.3, 261.10, and 
261.11. 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.

F. 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.

II. Background

A. Background on Polyvinyl Chloride

    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. Additives 
include stabilizers that limit degradation from sources such as oxygen, 
heat, light, and flame, and plasticizers that make the PVC more 
flexible.
    All PVC contains stabilizers. Some PVC contains stabilizers 
containing metals such as barium, cadmium, and/or lead. Other PVC 
contains stabilizers based on calcium, zinc, and/or tin (Hahladakis et 
al. 2018; European Commission 2022).
    PVC may contain plasticizers, with the concentration and identity 
of plasticizers varying widely based on the desired properties of the 
final material. Plasticizers that are phthalates include but are not 
limited to: di(2-ethylhexyl) phthalate (DEHP), dibutyl phthalate (DBP), 
diethyl phthalate (DEP), dimethyl phthalate (DMP), di-n-octylphthalate 
(DnOP), benzyl butyl phthalate (BBP), diisononyl phthalate (DINP) and 
diisodecyl phthalate (DIDP) (Hahladakis et al. 2018; Czoga[lstrok]a, 
Pankalla, and Turczyn 2021). Other plasticizers that are not phthalates 
include adipates and trimellitates. Rigid forms of PVC contain little 
to no plasticizers while more flexible forms require the addition of 
more plasticizers.
    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. 
Typically, plasticizers constitute from zero up to about 50 percent of 
the product by weight, although higher concentrations have been 
reported (Hahladakis et al. 2018; Kim et al. 2020; European Commission 
2022). Voluntary data from 2000 indicates at least two thirds of PVC is 
of rigid grades that do not typically contain any amount of 
plasticizers (Borrelli et al. 2005).

B. How is the EPA addressing discarded PVC?

    Separate from the Petition and EPA's action on it, the EPA 
regulates the management of solid waste, including discarded plastics 
such as PVC, under RCRA. EPA has established different standards for 
units accepting different types of non-hazardous waste, see 40

[[Page 32418]]

CFR parts 257-258, and RCRA generally prohibits non-compliant ``open 
dumping'' of non-hazardous solid waste. 42 U.S.C. 6945(a).
    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 that ``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 that ``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 that EPA will 
``[i]mplement 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/trash-free-waters-projects 
(EPA 2024a).
    In April of 2023 the EPA released for public comment and peer 
review a draft national strategy to prevent plastic pollution (EPA 
2023). Proposed actions from the draft national strategy to prevent 
plastic pollution (EPA 2024b) include to:
     Reduce the production and consumption of single-use, 
unrecyclable, or frequently littered plastic products.
     Minimize pollution across the life cycle of plastic 
products.
     Increase public understanding of the impact of plastic 
mismanagement and how to appropriately manage plastic products and 
other waste.
     Identify and implement policies, programs, technical 
assistance, and compliance assurance actions that effectively prevent 
trash/microplastics from getting into waterways or remove such waste 
from waterways once it is there.

C. Regulatory Background

    EPA defines hazardous waste for purposes of the RCRA hazardous 
waste regulations in 40 CFR 261.3. There are three ways by which a 
solid waste may be listed as hazardous waste under the RCRA hazardous 
waste regulations. See 40 CFR 261.11(a). Two of these are relevant to 
the Petition: 40 CFR 261.11(a)(1) and (a)(3).
    A solid waste may be listed as a hazardous waste pursuant to 40 CFR 
261.11(a)(1) if it ``exhibits any of the characteristics of a hazardous 
waste.'' The four characteristics of a hazardous waste are found in 40 
CFR 261.21-24. The most relevant to the Petition is the toxicity 
characteristic, found in 40 CFR 261.24. A solid waste exhibits the 
characteristic of toxicity if it leaches specified toxic contaminants 
in the toxicity characteristic leaching procedure (TCLP) in excess of 
the regulatory limit listed in Table 1 of 40 CFR 261.24. See 40 CFR 
261.24(a).
    A solid waste may be listed as a hazardous waste pursuant to 
261.11(a)(3) if ``it contains any of the toxic constituents listed in 
Appendix VIII [to 40 CFR part 261],'' and the Administrator concludes, 
after considering eleven factors, that it ``is capable of posing a 
substantial present or potential hazard to human health or the 
environment when improperly treated, stored, transported or disposed 
of, or otherwise managed.'' 40 CFR 261.11(a)(3). EPA lists hazardous 
constituents on Appendix VIII to 40 CFR part 261.
    Pursuant to 42 U.S.C. 6974, any person may petition the 
Administrator to conduct a RCRA rulemaking, including requesting a 
listing of a hazardous waste. EPA's regulations require that ``[a]fter 
evaluating all public comments the Administrator will make a final 
decision [on the petition] by publishing in the Federal Register a 
regulatory amendment or a denial of the petition.'' 40 CFR 260.20(e). 
The regulations require that every petition must include ``a statement 
of the need and justification for the proposed action, including any 
supporting tests, studies, or other information.'' 40 CFR 260.20(b)(4). 
While 40 CFR 260.20 does not provide specific information requirements 
for hazardous waste listing petitions, EPA has clarified that the 
information relevant to the listing criteria set forth in 261.11(a) is 
useful for petitioners to include in such a petition. See 45 FR 33070. 
Therefore, when a petition requesting a listing of a substance as a 
hazardous waste, as supplemented by the public comments, provides 
insufficient information to consider all of the relevant listing 
criteria under 261.11(a), EPA is not required to grant the petition and 
may deny the petition as a matter of its discretion for having provided 
an insufficient justification as required by 260.20(b)(4). EPA's 
discretion under 260.20 includes the choice of whether to pursue a 
matter beyond what is provided in the petition and any subsequent 
public comments, where they fail to provide sufficient indicia of a 
hazard to human health or the environment.

III. Petition for Rulemaking, EPA's Tentative Denial, and Comments 
Received

A. Summary of the Petitioner's Requested Changes and EPA's Tentative 
Denial

    On July 24, 2014, the Center for Biological Diversity (CBD) 
petitioned the EPA 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.'' In doing so, CBD requested 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.
    On January 12, 2023, the Agency published a tentative denial of the 
Petition. In the denial, the Agency explained that petitioners had not 
provided sufficient evidence to support a listing of discarded PVC as a 
RCRA hazardous waste as the Petition did not provide sufficient 
information that discarded PVC, under current waste management 
practices, ``present[s] 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).'' Rather, much of the information provided in the Petition 
concerned potential exposures during the use of PVC as a product. Based 
on the information provided in the Petition, the Agency proposed to 
determine that a listing of discarded PVC was unwarranted at this time.

B. Summary of Comments Received

    The Agency received public comments on the tentative denial during 
the 30-day comment period that ran from January 12, 2023, through 
February 13, 2023. On February 23, 2023, after the comment period had 
closed, the

[[Page 32419]]

Agency received a request to extend the comment period for an 
additional thirty days following the train derailment in East 
Palestine, Ohio. The Agency chose not to reopen the comment period 
because the release in East Palestine, Ohio did not have a direct 
bearing on the Petition. Furthermore, the Agency had entered into a 
consent decree with the Center for Biological Diversity (see docket 
EPA-HQ-OGC-2022-0406) in which the EPA had committed to sign the final 
determination on the Petition by April 12, 2024 (which the parties 
subsequently stipulated to extend to April 26, 2024). The requested 
extension of the comment period could have interfered with meeting that 
commitment.
    The Agency received 4,543 comments on the tentative denial. 63 
comments supported the tentative denial, including 2 letter writing 
campaigns representing approximately 52 of the comments, with 10 
substantive and distinct comments. 4,480 comments were opposed to the 
denial, including a letter writing campaign covering approximately 4464 
of the comments, with 3 substantive and distinct comments.
    The comments supporting the tentative denial largely echoed the 
language of EPA's tentative denial, including the lack of evidence in 
the Petition that discarded PVC meets the 40 CFR 261.11 listing 
criteria, Agency discretion, the variable composition of PVC, other EPA 
efforts addressing plastic pollution, and the existing regulations on 
landfills, incinerators, and toxic contaminants. These commenters also 
cited recent EPA actions under the Toxic Substances Control Act (TSCA) 
related to the risk evaluations of vinyl chloride and phthalates and 
noted that the studies provided by the petitioner related to direct 
phthalate exposure which, the commenters argued, cannot substitute for 
evidence of potential exposure or effects from discarded PVC. 
Additional comments expressed concern about the potential regulatory 
burden and/or complexity of complying with the changes requested by the 
Petition, particularly with regard to generator status, regulated 
medical waste, and recycling/sustainability efforts.
    The comments opposed to the denial of the Petition echoed the 
language of CBD's petition, expressing concern about potential releases 
of toxic constituents during the manufacture, use, and disposal of PVC. 
Specific concerns regarding disposal of PVC included plastic pollution 
and its effect on the environment, the scope of existing regulations, 
presence in landfills and incinerators, and potential release of 
hazardous constituents from landfill leachate and incineration. 
Commenters expressed concern about the potential toxicity of discarded 
PVC resin apart from any consideration of additives (i.e., phthalate 
plasticizers and metals from heat stabilizers). Additionally, the 
petitioner submitted 30 additional scientific studies as support.
    Responses to specific comments may be found in the response to 
comments document published separately in this docket.

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

    Pursuant to 40 CFR 260.20, the Petition, as supplemented by public 
comments, must provide sufficient information to justify the listing of 
discarded PVC as a hazardous waste. The Petition and public comments 
fail to do so.
    The Petition does not specifically request that EPA list discarded 
PVC as a hazardous waste pursuant to 40 CFR 261.11(a)(1). However, it 
does provide some information that could be construed as relevant to a 
request for such a listing. The Petition does specifically request that 
EPA conduct a hazardous waste listing pursuant to 40 CFR 261.11(a)(3). 
Accordingly, EPA has considered information to be relevant to the 
Petition if it is relevant to either 261.11(a)(1) or (a)(3). EPA 
proposed to deny the Petition based on the lack of information provided 
by Petitioners. After considering public comment on the tentative 
denial, EPA concludes that the Petition, even as supplemented by the 
information received through the public comment period, still provides 
insufficient information to justify a listing of discarded PVC as a 
hazardous waste at this time under either 261.11(a)(1) or 261.11(a)(3).
    With respect to 40 CFR 261.11(a)(1), the Petition states that PVC 
may contain any of the following hazardous contaminants found in Table 
1 of 40 CFR 261.24: vinyl chloride monomer (D043), barium (D005), 
cadmium (D006), and lead (D008). Under EPA's regulations, a solid waste 
exhibits the hazardous waste characteristic of toxicity (TC) when the 
values in Method 1311 (TCLP) exceed 0.2 milligrams per liter (mg/L), 
100 mg/L, 1 mg/L, and 5 mg/L, respectively, for these contaminants. 
However, the Petition and comments are insufficient because they do not 
provide evidence that discarded PVC leaches these hazardous 
contaminants in excess of their TC regulatory levels. Additionally, EPA 
is also aware of at least one study suggesting that discarded PVC may 
not exhibit the hazardous waste characteristic of toxicity for vinyl 
chloride. Specifically, a survey of American vinyl producers conducted 
in 2000 found concentrations of residual vinyl chloride monomer to be 
too low to exceed the vinyl chloride TC regulatory level (Borrelli et 
al. 2005). That is, the study found that residual vinyl chloride 
concentrations were less than twenty times the TC regulatory level for 
vinyl chloride (20 x 0.2 mg/L = 4 mg/L), which according to agency 
guidance may be classified as non-hazardous with respect to the 
presence of vinyl chloride without having to conduct a TCLP test 
(https://www.epa.gov/hw-sw846/hazardous-waste-characteristics#question23). Therefore, given the insufficient 
information to determine whether hazardous contaminants in discarded 
PVC exceed their TC regulatory levels, EPA denies the Petition to the 
extent it requests a listing under 40 CFR 261.11(a)(1).
    With respect to 40 CFR 261.11(a)(3), the Petition does provide some 
evidence that discarded PVC may contain one or more toxic constituents 
listed in Appendix VIII. Specifically, petitioner provided evidence 
that discarded PVC contains residual vinyl chloride monomer, and may 
contain barium, cadmium, lead, DEHP, DBP, DEP, DMP, DnOP, and BBP.
    Nevertheless, the Petition, even as supplemented by the information 
received through the public comment period, does not provide sufficient 
information that discarded PVC is ``capable of posing a substantial 
present or potential hazard to human health or the environment when 
improperly treated, stored, transported or disposed of, or otherwise 
managed'' based on the eleven factors provided in 40 CFR 261.11(a)(3). 
40 CFR 261.11(a)(3). To determine whether discarded PVC meets the 
261.11(a)(3) criteria, EPA must consider eleven factors. The discussion 
below focusses on factors (ii), (iii), (vii), and (ix), detailing how 
the Petition and comments received provide insufficient information 
relevant to these criteria. Petitioner's failure to provide compelling 
information on these factors is sufficient to support EPA's final 
denial. EPA is not relying on an evaluation of, and does not intend to 
imply the sufficiency of, the evidence provided to support the other 
factors.
    EPA received mixed information relevant to factor (ii). Factor (ii) 
specifies that EPA will consider the concentration of the Appendix VIII 
constituent in the waste. The petitioner

[[Page 32420]]

provided some evidence that discarded PVC may contain residual vinyl 
chloride monomer, and that the following toxic constituents may be 
present due to additives: barium, cadmium, lead, DEHP, DBP, DEP, DMP, 
DnOP, and BBP. To support this, petitioner claimed that barium, cadmium 
and lead additives are often present in PVC. Petitioner also made 
generalized claims from a number of limited sources that the listed 
phthalates are often used by the PVC industry and may constitute up to 
eighty percent by weight of certain PVC products. However, EPA also 
received public comments explaining that all of the toxic constituents 
that petitioners describe have been largely phased out of PVC in the 
United States over decades, such that, for example, less than 9 percent 
of new PVC contains any phthalates (including phthalates not listed on 
Appendix VIII), and the concentration of residual vinyl chloride 
monomer may be so low as to not be detectable (Vinyl Institute 2023 p 
4, 13-14). Given the conflicting information on the prevalence and 
concentrations constituents in PVC, EPA has determined that the 
Petition and comments received provide insufficient information to 
consider the concentration of Appendix VIII constituents in discarded 
PVC.
    EPA received insufficient information relevant to factor (vii). 
Factor (vii) specifies that EPA will consider plausible types of 
improper management to which discarded PVC could be subjected. In 
evaluating this factor, EPA does not consider spills, accidents, or 
other unlikely scenarios. See Dithiocarbamate Task Force v. EPA, 98 
F.3d 1394, 1400-1401 (D.C. Cir. 1996); 63 FR 64383. Rather, EPA 
considers the current management practices for the waste at-issue and 
must identify ``some factual support for a conclusion that a particular 
mismanagement scenario is plausible.'' Dithiocarbamate Task Force at 
1400. The Petition relies on the presence of plastic pollution and 
evidence of phthalate exposure as evidence that mismanagement of 
discarded PVC has occurred and characterizes--without further 
elaboration--a limited number of sources for the proposition that 
marine pollution results from flawed waste management techniques.
    These claims are insufficiently supported in several respects. 
First, management of discarded PVC depends on the type and source of 
PVC, but may include disposal in construction and demolition landfills, 
municipal solid waste landfills, or incineration as municipal solid 
waste. The Petition fails to distinguish between the management 
practices applicable to the different sources of this PVC waste,\1\ and 
therefore, fails to properly identify potential improper management 
scenarios, or evaluate their plausibility. Second, the Petition fails 
to explain what amount of plastic pollution, including marine litter, 
can be attributed to PVC, as opposed to other forms of plastic. Third, 
the Petition also fails to explain the extent that this pollution has 
resulted from mismanagement of discarded PVC, as opposed to other 
sources such as uncontrolled litter or product use that occurs outside 
of the current waste management regime.\2\ For all of these reasons, 
the Petition and comments received provide insufficient evidence for 
EPA to consider the plausible types of improper management to which 
discarded PVC could be subjected.
---------------------------------------------------------------------------

    \1\ For example, as noted in unit II.B. of this notice, 
different federal standards apply to different classifications of 
non-hazardous waste landfills.
    \2\ See Figure 10 of OECD 2022 for sources of aquatic plastic 
including product use; See also Table 8 of U.S. EPA 2020, which 
shows that discarded PVC is less than 3% of the plastic in municipal 
solid waste.
---------------------------------------------------------------------------

    EPA also received insufficient information relevant to factors 
(iii) and (ix). Factor (iii) specifies that EPA will consider the 
potential of the constituent or any toxic degradation product of the 
constituent to migrate from the waste into the environment under the 
types of improper management considered in factor (vii); and factor 
(ix) specifies that EPA will consider the nature and severity of the 
human health and environmental damage that has occurred as a result of 
the improper management of wastes containing the constituent(s). Both 
of these factors require consideration of plausible mismanagement 
scenarios. However, as explained above, EPA received insufficient 
information about the plausible types of mismanagement to which 
discarded PVC could be subjected. The Petition and comments provided 
information about potential exposures from the use of PVC products. 
However, they did not explain why the information is germane to 
evaluating the potential of the constituent or any toxic degradation 
product of the constituent to migrate from waste (i.e., discarded PVC) 
into the environment under the particular environments found in waste 
management scenarios. Nor did they explain how it is relevant to human 
health or environmental damage occurring as a result of improper waste 
management. Finally, the Petition and comments fail to identify any 
cases or situations where substantial human health or environmental 
damage has occurred from exposure to hazardous constituents in PVC 
resulting from the management of discarded PVC.
    As such, the Petition fails to provide enough information to compel 
EPA to list discarded PVC as a hazardous waste. Nor do the Petition and 
comments include sufficient information of a potential hazard to human 
health or the environment that would otherwise justify, in the Agency's 
discretion, initiating a rulemaking procedure to supplement the 
insufficient information provided in the petition and public comments. 
Accordingly, EPA has determined that the Petition, even as supplemented 
by the information received through the public comment period, provides 
insufficient information to justify granting the petition under 260.20. 
The petition is denied.

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. Borrelli, 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. 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.
4. 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.
5. 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

[[Page 32421]]

Hazardous Materials 344, 179-199. https://doi.org/10.1016/j.jhazmat.2017.10.014.
6. 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.
7. Organisation for Economic Cooperation and Development (OECD). 
2022. Global Plastics Outlook: Policy Scenarios to 2060--Policy 
Highlights. OECD Publishing, Paris. https://read.oecd-ilibrary.org/view/?ref=1143_1143481-88j1bxuktr&title=Global-Plastics-Outlook-Policy-Scenarios-to-2060-Policy-Highlights.
8. 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.
9. 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.
10. United States Environmental Protection Agency. 2023. Draft 
National Strategy to Prevent Plastic Pollution: Executive Summary, 
April 2023. https://www.epa.gov/system/files/documents/2023-04/Draft_National_Strategy_to_Prevent_Plastic_Pollution_Executive_Summary.pdf.
11. United States Environmental Protection Agency. 2024a. Trash Free 
Waters Projects, Retrieved March 28, 2024. https://www.epa.gov/trash-free-waters/trash-free-waters-projects.
12. United States Environmental Protection Agency. 2024b. Draft 
National Strategy to Prevent Plastic Pollution, Retrieved March 28, 
2024. https://www.epa.gov/circulareconomy/draft-national-strategy-prevent-plastic-pollution.
13. Vinyl Institute. 2023. Public Comment. EPA-HQ-OLEM-2022-0971-
0028 Attachment 1.

Michael S. Regan,
Administrator.
[FR Doc. 2024-09031 Filed 4-25-24; 8:45 am]
BILLING CODE 6560-50-P

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