Appendix E

This subgroup report provides a full evaluation of Issue 4 of the Task Force’s main report (Disposal of Laboratory Wastewater).

Additionally this report identifies and discusses two other areas where regulatory or statutory changes are needed to relieve laboratories of unduly burdensome and anti-competitive regulation under California’s hazardous waste laws:

Issue: Should California become more consistent with Federal RCRA by permitting laboratories to discharge aqueous hazardous wastes to the sanitary sewer where such hazardous wastes are a small fraction of the total waste water flow to the local POTW?

Current DTSC Interpretation: Notwithstanding the exemption for certain laboratory wastewaters at 22 CCR 66261.3(a)(2)(iv)(E), “DTSC reportedly forbids the discharge of hazardous waste to an unauthorized point.” (H&SC sec. 25189.5).

Evaluation: For several reasons, the state prohibition imposes an inappropriate and anti-competitive hardship upon generators in California, particularly generators whose operations use small quantities of liquids that become hazardous wastes:

A. Most states have adopted the domestic sewage exclusion. The lack of an exemption in California means that generators in this state must incur disposal costs (and management overhead) that are not incurred by competitors in most other states. The incremental increased cost to California of having the same activity regulated by both the Clean Water Act and the hazardous waste laws is not justified by any significant incremental benefit to the environment.

B. The rationale for the RCRA domestic sewage exclusion is that waste discharged to the sanitary sewer is subject to regulation by the publicly owned treatment works (POTW) under the Clean Water Act, and, therefore, regulation under RCRA would be redundant and unnecessary. Because California has not adopted the exclusion, generators often find themselves subject to redundant, inconsistent and confusing regulations. For example, generators have had the experience of being informed by the local POTW that it is acceptable to discharge specific wastestreams to the sanitary sewer, only to be later told by DTSC inspectors that it is not acceptable to do so because the wastestream is a hazardous waste. Particularly with small generators, who heavily rely on the regulators, this situation is confusing, contributing to the perception that one hand of the state does not know what the other hand is doing. Moreover, because the prohibition on sewer disposal in California is unnecessary where the POTW has the capacity to treat the waste, this situation contributes to the perception that California imposes unnecessary burdens on industry.

C. In many cases, liquid laboratory wastes that are classified as “hazardous wastes” in California are so classified because of the broad toxicity characteristic tests under Title 22, particularly the highly sensitive aquatic toxicity test. Because sewers generally do not constitute a habitat for fish or wildlife, however, the application of these tests to wastes that would otherwise be disposed to the sewer appears illogical. The potential threat to the environment from such wastes exists at the discharge point from the POTW; and it is under the Clean Water Act and Porter-Cologne, not RCRA or the California Hazardous Waste Law, that POTWs establish limits on discharges to the sewers in order to meet environmental requirements applicable to the discharges from the POTWs.

D. For worker protection purposes, sanitary sewer disposal of these wastes can be the most appropriate and safe procedure. The laboratory worker generally handles the liquid in a test tube, beaker or other small container within or adjacent to a sink; and disposal to the sink drain may minimize the amount of dermal and respiratory exposure that the worker would incur. Because of the state prohibition, however, the worker must pour the small amounts of waste into a larger container and eventually remove this container from the sink or benchtop area to a central collection area. These actions greatly increase the potential of dermal and respiratory exposure, as well as introduce the possibility of spillage of much larger quantities of waste than could otherwise occur. In laboratory operations that use substantial amounts of chemicals, discharge of chemicals to sinks and sewers may raise three problems: mixing of incompatible that might result in harmful gasses or corrosion of facility pipes, control of vapors in the sink and facility piping for respiratory protection, and control of flammable vapors in the sink and facility piping for fire protection. Hazardous waste law is not the appropriate mechanism to address these issues, however, because it does not allow determinations to be made on a facility-specific basis as to if and when these problems may arise and how they should be handled. The issues are, fundamentally, fire safety and occupational health and safety issues, and can be best addressed on a facility-specific basis through fire regulations and the facility’s various health and safety plans (e.g., Chemical Hygiene Plan, business plan, etc.).

Alt. 1: The preferred solution is for the state to adopt the federal domestic sewage exclusion. This will benefit all generators who produce hazardous wastes that can be safely accepted by POTWs and, as explained above, will eliminate unnecessary and anti-competitive regulatory overlap with no increase in potential harm. Indeed, as discussed above, it often will decrease potential human exposure to harmful chemicals.

We recognize that adoption of the domestic sewage exclusion would constitute a major change in the state regulatory scheme. It is important to recognize, however, that the state’s regulatory scheme was first promulgated in the late 1970s, and at a time when POTWs in the state had little knowledge regarding the hazards of chemicals released to sewer systems. Since that time, POTWs have become far more regulated themselves, and far more sophisticated regarding chemical hazards. POTWs are now very capable of determining which hazardous wastes should be accepted and which cannot. Indeed, most current POTW ordinances already establish limits on the solvents that constitute the bulk of hazardous waste that would be discharged to the sewer if the exclusion was adopted. (Specifically, ordinances generally include a concentration limit for total organic solvents and/or establish specific concentration limits for the most commonly used solvents, such as acetone.)

Alt. 2: Adopt limited regulatory exemption for laboratories (e.g., create a domestic sewage exclusion for wastes that are discharged from “laboratory scale” operations, or expand 22 CCR 66261.3(a)(2)(E)(5) to ignitable wastes).

In the event that the preferred alternative is politically infeasible due to its breadth, an alternative solution would be adoption of an exemption that would permit laboratories to discharge hazardous wastes to the drain.

One basis for such a limited exclusion would be to implement a limited domestic sewage exclusion. An exclusion limited to the discharge of wastes from “laboratory scale” operations would be justifiable because, as discussed above, laboratory operations typically involve the handling of small quantities of chemicals in a manner where drain disposal often is the safest and most appropriate manner of disposal.

Another basis is the exclusion set forth at 22 CCR 66261.3(a)(2)(E)(5), which exempts listed wastes discharged from laboratories so long as their total concentration does not exceed one percent of the wastewater at the treatment plant’s “headworks.”

This exemption is taken from the federal RCRA regulations. Because many more chemical wastes are deemed hazardous in California than in the federal RCRA system due to the state’s broader characteristic tests for toxicity, the exemption is less useful to California laboratories than it is to laboratories in other states. To make the exemption useful, the exemption should be expended to include wastes that are deemed to be California hazardous wastes due to toxicity or ignitability.

In order to make the exemption useful, it also is important for DTSC to expressly clarify that the “one percent” limitation applies at the POTW’s headworks. Currently, the regulation is not clear as to whether it refers to the POTW’s headworks or the discharger’s headworks. The latter interpretation would make the provision useless to most laboratories.

Alt. 3: Adopt an exemption that permits the sewer discharge of those substances that are listed (individually or by characteristic category) in an industrial Wastewater discharge permit issued by the local POTW.

As noted above, “hazardous waste” as defined by Title 22 is not a meaningful classification in relation to sewer disposal. If DTSC is concerned about adopting a blanket exemption before evaluating each POTWs controls, then a logical way to approach the problem would be to place the burden on dischargers to obtain an express permit from POTWs allowing the discharge, and providing an exemption from hazardous waste regulation where such a permit has been obtained.

Issue: Is there a method by which the listing of hazardous wastes pursuant to this paragraph can occur in accordance with required norms of due process?

Current law: This provision of the California hazardous waste regulations states that a waste is a “hazardous waste” by toxicity where “it has been shown through experience or testing to pose a hazard to human health or environment because of its carcinogenicity, acute toxicity, chronic toxicity, bioaccumulative properties or persistence in the environment.” We understand that DTSC does not regard all carcinogens, etc., to be hazardous on the basis of this provision, but occasionally makes informal determinations that a waste is hazardous under this provision. A list of wastes that are hazardous due to this provision is not published in the California Code or Regulations.

Evaluation: Because DTSC does not publish in Title 22 the list of chemicals falling within this provision, labs, who are continuously encountering new chemicals, cannot be sure whether they are dealing with a waste that falls within this provision. DTSC’s lack of formal notice and comment regarding these wastes probably violates due process. At a minimum, current practice leads to confusion and ambiguity. Reportedly, a DTSC inspector informed one laboratory that ethidium bromide solution is a hazardous waste under this provision even though it does not fail any of the toxicity or other characteristic tests and, in standard solution, has not been clearly categorized as a carcinogen.

Alt. 1: Because the provision is not well-based in any specific scientific methodology that can be followed by a generator, this provision should be deleted.

Alt. 2: The regulation should be clarified to state that it is applicable only to those chemicals specifically listed by the state pursuant to objective tests that ere adopted pursuant to a notice and comment process. An appendix should be added to Title 22 listing the chemicals that fall within this clause and a threshold percentage above which the chemical is hazardous. Normal notice and comment procedures should be followed in adding chemicals to the list.

Issue: If treatment of hazardous wastes within laboratories is not effectively exempted from permit requirements by use of the “laboratory process unit” or other method, can the tiered permitting structure be revised regarding laboratories so that laboratories are not hindered from conducting environmentally appropriate treatment?

Current law: The law currently requires a laboratory to obtain a permit for treatment of hazardous wastes. For treatment of certain wastes in very small quantities, a lower tier of the tiered permit process may be applicable. In other cases, higher tiers may be applicable.

Evaluation: The current law creates a disincentive to treat or recycle such wastes. Tiered permitting has not eliminated this problem because (1) it does not include all treatment processes that laboratories may use to recycle or treat waste, and (2) the requirements under certain tiers are still too cumbersome. Most importantly, the current tiered permitting scheme is not effective for laboratories because laboratory treatment processes may fall into several different tiers, creating an administrative headache that many jobs cannot afford to deal with. Particular examples of other unduly cumbersome regulations include the following:

When applied to the small, desktop operations common to laboratories, the concept of “treatment” becomes trivial and unwieldy. One laboratory has had the experience of a regulator questioning whether dipping a sued pipette into bleach constituted “treatment” of a hazardous waste.

Because laboratories often change or add new processes, they regularly need to introduce new treatment and recycling processes in order to minimize wasters. Currently, under tiered permitting, the laboratory needs to amend its permit each time that it wishes to add recycling or treatment process, and unduly burdensome procedure.

Closure and financing requirements under tiered permitting discourage the use of the process.

Alt. 1: Exempt laboratories from the obligation of obtaining a permit for the treatment of non-RCRA wastes and RCRA wastes for which a permit if not required when treatment is conducted.

Alt. 2: Place all laboratory treatment that is currently subject to tiered permitting into the conditionally exempt tier.


	Business and Financial Affairs > Environmental Health and Safety > Hazardous Materials Management > Report to Cal/EPA >
	Environmental Health and Safety Hazardous Materials Management Report to Cal/EPA Department of Toxic Substances Control Recommendations of the Laboratory Regulatory Reform Task Force — 1995 Appendix E: Report of the Legislation and Regulation Subgroup This subgroup report provides a full evaluation of Issue 4 of the Task Force’s main report (Disposal of Laboratory Wastewater). Additionally this report identifies and discusses two other areas where regulatory or statutory changes are needed to relieve laboratories of unduly burdensome and anti-competitive regulation under California’s hazardous waste laws: 1. Drain Disposal of Hazardous Wastes Issue: Should California become more consistent with Federal RCRA by permitting laboratories to discharge aqueous hazardous wastes to the sanitary sewer where such hazardous wastes are a small fraction of the total waste water flow to the local POTW? Current DTSC Interpretation: Notwithstanding the exemption for certain laboratory wastewaters at 22 CCR 66261.3(a)(2)(iv)(E), “DTSC reportedly forbids the discharge of hazardous waste to an unauthorized point.” (H&SC sec. 25189.5). Evaluation: For several reasons, the state prohibition imposes an inappropriate and anti-competitive hardship upon generators in California, particularly generators whose operations use small quantities of liquids that become hazardous wastes: A. Most states have adopted the domestic sewage exclusion. The lack of an exemption in California means that generators in this state must incur disposal costs (and management overhead) that are not incurred by competitors in most other states. The incremental increased cost to California of having the same activity regulated by both the Clean Water Act and the hazardous waste laws is not justified by any significant incremental benefit to the environment. B. The rationale for the RCRA domestic sewage exclusion is that waste discharged to the sanitary sewer is subject to regulation by the publicly owned treatment works (POTW) under the Clean Water Act, and, therefore, regulation under RCRA would be redundant and unnecessary. Because California has not adopted the exclusion, generators often find themselves subject to redundant, inconsistent and confusing regulations. For example, generators have had the experience of being informed by the local POTW that it is acceptable to discharge specific wastestreams to the sanitary sewer, only to be later told by DTSC inspectors that it is not acceptable to do so because the wastestream is a hazardous waste. Particularly with small generators, who heavily rely on the regulators, this situation is confusing, contributing to the perception that one hand of the state does not know what the other hand is doing. Moreover, because the prohibition on sewer disposal in California is unnecessary where the POTW has the capacity to treat the waste, this situation contributes to the perception that California imposes unnecessary burdens on industry. C. In many cases, liquid laboratory wastes that are classified as “hazardous wastes” in California are so classified because of the broad toxicity characteristic tests under Title 22, particularly the highly sensitive aquatic toxicity test. Because sewers generally do not constitute a habitat for fish or wildlife, however, the application of these tests to wastes that would otherwise be disposed to the sewer appears illogical. The potential threat to the environment from such wastes exists at the discharge point from the POTW; and it is under the Clean Water Act and Porter-Cologne, not RCRA or the California Hazardous Waste Law, that POTWs establish limits on discharges to the sewers in order to meet environmental requirements applicable to the discharges from the POTWs. D. For worker protection purposes, sanitary sewer disposal of these wastes can be the most appropriate and safe procedure. The laboratory worker generally handles the liquid in a test tube, beaker or other small container within or adjacent to a sink; and disposal to the sink drain may minimize the amount of dermal and respiratory exposure that the worker would incur. Because of the state prohibition, however, the worker must pour the small amounts of waste into a larger container and eventually remove this container from the sink or benchtop area to a central collection area. These actions greatly increase the potential of dermal and respiratory exposure, as well as introduce the possibility of spillage of much larger quantities of waste than could otherwise occur. In laboratory operations that use substantial amounts of chemicals, discharge of chemicals to sinks and sewers may raise three problems: mixing of incompatible that might result in harmful gasses or corrosion of facility pipes, control of vapors in the sink and facility piping for respiratory protection, and control of flammable vapors in the sink and facility piping for fire protection. Hazardous waste law is not the appropriate mechanism to address these issues, however, because it does not allow determinations to be made on a facility-specific basis as to if and when these problems may arise and how they should be handled. The issues are, fundamentally, fire safety and occupational health and safety issues, and can be best addressed on a facility-specific basis through fire regulations and the facility’s various health and safety plans (e.g., Chemical Hygiene Plan, business plan, etc.). Recommendations: Alt. 1: The preferred solution is for the state to adopt the federal domestic sewage exclusion. This will benefit all generators who produce hazardous wastes that can be safely accepted by POTWs and, as explained above, will eliminate unnecessary and anti-competitive regulatory overlap with no increase in potential harm. Indeed, as discussed above, it often will decrease potential human exposure to harmful chemicals. We recognize that adoption of the domestic sewage exclusion would constitute a major change in the state regulatory scheme. It is important to recognize, however, that the state’s regulatory scheme was first promulgated in the late 1970s, and at a time when POTWs in the state had little knowledge regarding the hazards of chemicals released to sewer systems. Since that time, POTWs have become far more regulated themselves, and far more sophisticated regarding chemical hazards. POTWs are now very capable of determining which hazardous wastes should be accepted and which cannot. Indeed, most current POTW ordinances already establish limits on the solvents that constitute the bulk of hazardous waste that would be discharged to the sewer if the exclusion was adopted. (Specifically, ordinances generally include a concentration limit for total organic solvents and/or establish specific concentration limits for the most commonly used solvents, such as acetone.) Alt. 2: Adopt limited regulatory exemption for laboratories (e.g., create a domestic sewage exclusion for wastes that are discharged from “laboratory scale” operations, or expand 22 CCR 66261.3(a)(2)(E)(5) to ignitable wastes). In the event that the preferred alternative is politically infeasible due to its breadth, an alternative solution would be adoption of an exemption that would permit laboratories to discharge hazardous wastes to the drain. One basis for such a limited exclusion would be to implement a limited domestic sewage exclusion. An exclusion limited to the discharge of wastes from “laboratory scale” operations would be justifiable because, as discussed above, laboratory operations typically involve the handling of small quantities of chemicals in a manner where drain disposal often is the safest and most appropriate manner of disposal. Another basis is the exclusion set forth at 22 CCR 66261.3(a)(2)(E)(5), which exempts listed wastes discharged from laboratories so long as their total concentration does not exceed one percent of the wastewater at the treatment plant’s “headworks.” This exemption is taken from the federal RCRA regulations. Because many more chemical wastes are deemed hazardous in California than in the federal RCRA system due to the state’s broader characteristic tests for toxicity, the exemption is less useful to California laboratories than it is to laboratories in other states. To make the exemption useful, the exemption should be expended to include wastes that are deemed to be California hazardous wastes due to toxicity or ignitability. In order to make the exemption useful, it also is important for DTSC to expressly clarify that the “one percent” limitation applies at the POTW’s headworks. Currently, the regulation is not clear as to whether it refers to the POTW’s headworks or the discharger’s headworks. The latter interpretation would make the provision useless to most laboratories. Alt. 3: Adopt an exemption that permits the sewer discharge of those substances that are listed (individually or by characteristic category) in an industrial Wastewater discharge permit issued by the local POTW. As noted above, “hazardous waste” as defined by Title 22 is not a meaningful classification in relation to sewer disposal. If DTSC is concerned about adopting a blanket exemption before evaluating each POTWs controls, then a logical way to approach the problem would be to place the burden on dischargers to obtain an express permit from POTWs allowing the discharge, and providing an exemption from hazardous waste regulation where such a permit has been obtained. 2. Clarification of 22 CDR 66261.31(a)(8) Issue: Is there a method by which the listing of hazardous wastes pursuant to this paragraph can occur in accordance with required norms of due process? Current law: This provision of the California hazardous waste regulations states that a waste is a “hazardous waste” by toxicity where “it has been shown through experience or testing to pose a hazard to human health or environment because of its carcinogenicity, acute toxicity, chronic toxicity, bioaccumulative properties or persistence in the environment.” We understand that DTSC does not regard all carcinogens, etc., to be hazardous on the basis of this provision, but occasionally makes informal determinations that a waste is hazardous under this provision. A list of wastes that are hazardous due to this provision is not published in the California Code or Regulations. Evaluation: Because DTSC does not publish in Title 22 the list of chemicals falling within this provision, labs, who are continuously encountering new chemicals, cannot be sure whether they are dealing with a waste that falls within this provision. DTSC’s lack of formal notice and comment regarding these wastes probably violates due process. At a minimum, current practice leads to confusion and ambiguity. Reportedly, a DTSC inspector informed one laboratory that ethidium bromide solution is a hazardous waste under this provision even though it does not fail any of the toxicity or other characteristic tests and, in standard solution, has not been clearly categorized as a carcinogen. Recommendations: Alt. 1: Because the provision is not well-based in any specific scientific methodology that can be followed by a generator, this provision should be deleted. Alt. 2: The regulation should be clarified to state that it is applicable only to those chemicals specifically listed by the state pursuant to objective tests that ere adopted pursuant to a notice and comment process. An appendix should be added to Title 22 listing the chemicals that fall within this clause and a threshold percentage above which the chemical is hazardous. Normal notice and comment procedures should be followed in adding chemicals to the list. 3. Treatment of hazardous wastes within laboratories Issue: If treatment of hazardous wastes within laboratories is not effectively exempted from permit requirements by use of the “laboratory process unit” or other method, can the tiered permitting structure be revised regarding laboratories so that laboratories are not hindered from conducting environmentally appropriate treatment? Current law: The law currently requires a laboratory to obtain a permit for treatment of hazardous wastes. For treatment of certain wastes in very small quantities, a lower tier of the tiered permit process may be applicable. In other cases, higher tiers may be applicable. Evaluation: The current law creates a disincentive to treat or recycle such wastes. Tiered permitting has not eliminated this problem because (1) it does not include all treatment processes that laboratories may use to recycle or treat waste, and (2) the requirements under certain tiers are still too cumbersome. Most importantly, the current tiered permitting scheme is not effective for laboratories because laboratory treatment processes may fall into several different tiers, creating an administrative headache that many jobs cannot afford to deal with. Particular examples of other unduly cumbersome regulations include the following: When applied to the small, desktop operations common to laboratories, the concept of “treatment” becomes trivial and unwieldy. One laboratory has had the experience of a regulator questioning whether dipping a sued pipette into bleach constituted “treatment” of a hazardous waste. Because laboratories often change or add new processes, they regularly need to introduce new treatment and recycling processes in order to minimize wasters. Currently, under tiered permitting, the laboratory needs to amend its permit each time that it wishes to add recycling or treatment process, and unduly burdensome procedure. Closure and financing requirements under tiered permitting discourage the use of the process. Recommendations: Alt. 1: Exempt laboratories from the obligation of obtaining a permit for the treatment of non-RCRA wastes and RCRA wastes for which a permit if not required when treatment is conducted. Alt. 2: Place all laboratory treatment that is currently subject to tiered permitting into the conditionally exempt tier.
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Hazardous Materials Management

Report to Cal/EPA Department of Toxic Substances Control Recommendations of the Laboratory Regulatory Reform Task Force — 1995

Report to Cal/EPA Department of Toxic Substances Control
Recommendations of the Laboratory Regulatory Reform
Task Force — 1995