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Walk around your basement – see those pipes? Would you consider those pipes to be hazardous waste? What about rain boots? Garden hose? Shower curtain? Traffic cones? All of these and more have the potential to be designated and handled as hazardous waste under a current petition to the United States Environmental Protection Agency (EPA) under the Resource Conservation and Recovery Act (RCRA) to designate discarded products containing polyvinyl chloride (PVC) as “hazardous waste.” Per a proposed Consent Decree, EPA will decide by January 2023. This is definitely an issue to watch.

RCRA provides cradle-to-grave management of hazardous wastes, imposing requirements for the generation, transportation, treatment, storage and disposal of hazardous waste. RCRA regulations define solid waste and hazardous waste and include a complex process that identifies specific substances known to be hazardous and provides criteria for including other materials in the regulated hazardous waste universe.[1] In the past year, most attention has been paid to the regulation of per-and polyfluoroalkyl substances (PFAS), including EPA’s acceptance of the Governor of New Mexico’s formal petition to designate PFAS as a RCRA hazardous waste. Less attention has been paid to a petition to designate discarded PVC products as a hazardous waste under RCRA, which could have wide-ranging and unanticipated impacts due to the ubiquity of PVC and PVC products as one of the most commonly used (and disposed of) plastics in world.[2]

The effort to designate discarded PVC and PVC products as a RCRA hazardous waste started eight years ago when the Center for Biological Diversity (CBD) filed a petition with EPA. The petition requested that EPA consider whether to designate discarded PVC and PVC products as a RCRA hazardous waste and, if so, that EPA revise the related solid waste management guidelines.[3] Among other claims, CBD alleged that discarded PVC products leach vinyl chloride and other chemical components into the environment as the products deteriorate with age in municipal solid waste landfills.[4]

Importantly, CBD’s petition not only requests the hazardous waste designation for PVC that may be generated at the manufacturing stage, but also requests designating finished materials and products that contain PVC as hazardous waste when discarded, potentially implicating a wide range of entities that may not otherwise come under the RCRA umbrella. These entities include retail establishments, the construction industry, aquaculture operations, sewage utilities and households that may dispose of PVC products in the general household trash.

EPA did not respond to CBD’s 2014 formal petition.[5] As a result, CBD filed an action

on August 19, 2021, alleging that EPA had failed to take a non-discretionary duty to respond to its petition.[6] On May 4, 2022, EPA announced that it had entered into a proposed Consent Decree with CBD to address its petition. The proposed Consent Decree requires EPA make a tentative decision on listing by January 20, 2023, and a final determination on listing by April 12, 2024.[7]

At this point, it is unclear whether EPA will grant CBD’s petition and proceed with rulemaking to designate discarded PVC products as RCRA hazardous waste. However, given the current regulatory climate, in which EPA (and other agencies) often ere on the side of more regulation regardless of potentially serious economic and practical considerations, interested parties should take this risk seriously. In addition, the proposed designation should be viewed in the light of the federal government and EPA’s goal to reduce the volume of plastic waste and the RCRA regulation of discarded PVC and PVC products creates a different pathway of cracking a regulation “nut” for these plastic materials.[8]

As a result, it is important to consider the potential impacts of RCRA regulation of PVC and PVC products as hazardous waste:

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