Existing law requires the Department of Toxic Substances Control to regulate the handling and management of hazardous waste. Existing law requires the department to develop and adopt by regulation criteria and guidelines for the identification of hazardous wastes and extremely hazardous wastes. Existing regulations adopted pursuant to that provision provide that a waste exhibits the characteristic of toxicity if representative samples of the waste have any of specified properties, including, among others, that a concentration of the waste of less than 500 milligrams per liter in soft water results in a 50% mortality rate of specified fish species after 96 hours of exposure, pursuant to specified procedures.

This bill would authorize the department, to the extent that funds are available for this purpose, to evaluate any of specified tests to determine whether the tests can be adapted to be appropriate for use in identifying substances as hazardous waste or extremely hazardous waste, consistent with the requirements of the hazardous waste control laws. The bill would require the department, if it finds that any of the specified tests can be adapted, to authorize the use of each test found appropriate, as adapted, as an alternative to the fish mortality testing method described above.

Existing law requires the Department of Toxic Substances Control to regulate the handling and management of hazardous waste. Existing law requires the department to develop and adopt by regulation criteria and guidelines for the identification of hazardous wastes and extremely hazardous wastes. Existing regulations adopted pursuant to that provision provide that a waste exhibits the characteristic of toxicity if representative samples of the waste have any of specified properties, including, among others, that a concentration of the waste of less than 500 milligrams per liter in soft water results in a 50% mortality rate of specified fish species after 96 hours of exposure, pursuant to specified procedures.

This bill would authorize the department, to the extent that funds are available for this purpose, to evaluate whether either or both any of specified tests to determine whether the tests can be adapted to be appropriate for use in identifying substances as hazardous waste or extremely hazardous waste, consistent with the requirements of the hazardous waste control laws. The bill would require the department, if it finds that one or both any of the specified tests can be adapted, to authorize the use of each test found appropriate, as adapted, as an alternative to the fish mortality testing method described above.

Existing law requires the Department of Toxic Substances Control to regulate the handling and management of hazardous waste. Existing law requires the department to develop and adopt by regulation criteria and guidelines for the identification of hazardous wastes and extremely hazardous wastes. Existing regulations adopted pursuant to that provision provide that a waste exhibits the characteristic of toxicity if representative samples of the waste have any of specified properties, including, among others, that a concentration of the waste of less than 500 milligrams per liter in soft water results in a 50% mortality rate of specified fish species after 96 hours of exposure, pursuant to specified procedures.

This bill would require the department, on or before January 1, 2021, authorize the department, to the extent that funds are available for this purpose, to evaluate whether either or both of specified tests can be adapted to be appropriate for use in identifying substances as hazardous waste or extremely hazardous waste, consistent with the requirements of the hazardous waste control laws. The bill would require the department, if it finds that one or both of the specified tests can be adapted, to authorize the use of each test found appropriate, as adapted, as an alternative to the fish mortality testing method described above.

Existing law requires the Department of Toxic Substances Control to regulate the handling and management of hazardous waste. Existing law requires the department to develop and adopt by regulation criteria and guidelines for the identification of hazardous wastes and extremely hazardous wastes. Existing regulations adopted pursuant to that provision provide that a waste exhibits the characteristic of toxicity if representative samples of the waste have any of specified properties, including, among others, that a concentration of the waste of less than 500 milligrams per liter in soft water results in a 50% mortality rate of specified fish species after 96 hours of exposure, pursuant to specified procedures.

This bill would require the department, on or before January 1, 2021, to update that regulation to adopt as the acute aquatic toxicity test the fish embryo acute toxicity test adopted by the Organisation for Economic Co-operation and Development, as provided. evaluate whether either or both of specified tests can be adapted to be appropriate for use in identifying substances as hazardous waste or extremely hazardous waste, consistent with the requirements of the hazardous waste control laws. The bill would require the department, if it finds that one or both of the specified tests can be adapted, to authorize the use of each test found appropriate, as adapted, as an alternative to the fish mortality testing method described above.

Existing law, as part of the hazardous waste control laws, requires a person wishing to operate as a certified appliance recycler to apply to obtain or renew certification from the Department of Toxic Substances Control. Existing law requires the department to review the application and, if the application is complete and meets specified requirements, to issue a numbered certificate to the applicant. Existing law requires the department, upon issuance of a certificate, to transmit the application and certification to the certified unified program agency in whose jurisdiction the person is located. Existing law requires the certified unified program agency to inspect the certified appliance recycling facility, as specified.

This bill would require a certified unified program agency, following an inspection of a certified appliance recycling facility, to transmit the results of the inspection to the department and would authorize the department to take any authorized enforcement action based on the results of the inspection and any other pertinent information. By imposing a new duty on certified unified program agencies, the bill would impose a state-mandated local program. The bill would also make nonsubstantive corrections.

The California Constitution requires the state to reimburse local agencies and school districts for certain costs mandated by the state. Statutory provisions establish procedures for making that reimbursement.

This bill would provide that no reimbursement is required by this act for a specified reason.

GOVERNOR'S VETO

GV Bill Id:AB 2474

Author:(Quirk)

As Enrolled Ver:September 7, 2018

2/3 vote

Original Committee Reference: E.S. & T.M.

SUMMARY: Authorizes the Department of Toxic Substance Control (DTSC) to adopt an optional, humane version of the acute aquatic toxicity test used in hazardous waste identification, should a test be found suitable for this purpose after evaluation by DTSC. Specifically, this bill:

1. Authorizes, to the extent funds are available, DTSC to evaluate the suitability of two acute aquatic toxicity test protocols, one testing for toxicity to fish embryos (fish embryo test) and the other for toxicity to daphnids (daphnid test), for hazardous waste identification.
2. Requires, if it finds that one or both tests is suitable and to the extent funds are available, DTSC to provide one or both of the tests as optional alternatives to the acute aquatic toxicity test currently in its regulations, which is performed on fish (fish test), after making any necessary adjustments to the test methods.

The Senate amendments make technical changes to accurately name the acute aquatic toxicity test on daphnids that the bill references.

EXISTING LAW: Requires DTSC to develop and adopt regulatory criteria and guidelines for the identification of hazardous wastes and extremely hazardous wastes.

FISCAL EFFECT: According to the Senate Appropriations Committee, while the bill does not mandate that DTSC conduct an evaluation, it is likely that it would result in cost pressures on the department. The evaluation described in the bill could cost up to $4.8 million over three years to develop a work plan for testing, conduct a comparative study, and potentially adopt regulations.

COMMENTS:

Hazardous waste identification: There are more than 100,000 businesses that generate hazardous waste in California. Waste generators are responsible for determining whether a waste is hazardous or non-hazardous and disposing of the waste accordingly. In California, a hazardous waste is any waste on a federally maintained Resource Conservation and Recovery Act (RCRA) list of hazardous wastes (e.g. some manufacturing wastes or discarded industrial chemicals, pharmaceuticals, and pesticides); that is derived from the RCRA wastes; or that is ignitable, corrosive, reactive, or toxic.

Defining a waste's toxicity in California: In California, a waste is classified as hazardous due to toxic properties if it is identified as having one or more of eight types of toxicity, including acute oral toxicity, acute dermal toxicity, acute inhalation toxicity, acute aquatic toxicity, or carcinogenicity. All of these types of toxicity can be determined using knowledge about the toxicity of constituent components of the waste except for acute aquatic toxicity.

Under current state regulations, acute aquatic toxicity is determined via the fish test by measuring a waste's toxicity to one of three types of fish (minnows, shiners, or trout) though, in practice, only minnows are used. In concept, a waste fails the acute aquatic fish test if, in a tank containing fish and waste, half of the fish in the tank are dead after 96-hours. Along with wastes containing intuitively toxic substances, such as arsenic, many household products (e.g. soaps) fail this test as well. Other than Washington State, there are not any other states that use acute aquatic toxicity testing as part of hazardous waste determination.

Welfare concerns and fish: Fish have pain receptors (nociceptors), which are a prerequisite for pain sensation but do not rule out that apparent pain responses are essentially unexperienced and mechanical. When injected with an irritating, but not injurious acid, fish eat less and do not flee objects they normally avoid. However, when also injected with morphine, their behavior remains closer to normal. The American Veterinary Medical Association's (AVMA) 2013 "Guidelines for the Euthanasia of Animals" state that, "…the preponderance of accumulated evidence supports the position that [fish] should be accorded the same considerations as terrestrial vertebrates in regard to relief from pain."

Consumer concern and over-classification of hazardous waste: Many people oppose animal testing. While there is no legal definition of "cruelty free" and "not tested on animals," many companies only use these labels if their products, when discarded, are not assessed using the fish test. Companies that do not test discarded products using the fish test treat their waste as hazardous by default, or risk liability under the California Hazardous Waste Control Law. Consequently, the lack of a humane option for hazardous waste identification leads to over-identification of hazardous waste.

SB 423 (Bates), Chapter 771, Statutes of 2016, required DTSC to convene a Retail Waste Workgroup (Workgroup) tasked with identifying regulatory and policy directives that need clarification for managing consumer products. In the Workgroup's final report to the legislature, the regulated community estimated that, "About 30% of the total hazardous waste generated in California is 'California-only' hazardous waste [i.e. waste that is only classified as hazardous because of the fish test] that could fail the [fish test]." The Personal Care Products Council estimates that 25% of their products are hazardous waste when discarded under RCRA, but 100% of their products are considered hazardous under California law. The regulated community noted that managing this waste as hazardous is costly and reduces opportunities for recycling. They identified the fish embryo test as a humane and modern alternative to the fish test. This bill seeks to continue and build off the efforts of the Workgroup by providing a humane alternative to the fish test.

Humane alternatives: This states that DTSC may, to the extent funds are available, evaluate whether two types of humane acute aquatic toxicity tests could be adapted for hazardous waste identification and, if so, requires DTSC to adopt, as adapted, the test(s) as optional alternatives to the fish test. The two types of test use either fish embryos or daphnids (an ecologically important microscopic crustacean that, like minnows, are already used in California to assess acute toxicity of waste water effluent).

Animal deaths, burdens on businesses committed to avoiding animal testing, and over-classification of hazardous waste could be avoided with the adoption of the fish embryo test or daphnid test as an optional alternative to the fish test.

GOVERNOR'S VETO MESSAGE:

This bill authorizes the Department of Toxic Substance Control to evaluate alternative methods from its standard bioassay procedure when determining if a product is hazardous waste.

The Department currently has the authority to establish alternative methods of testing a product's toxicity to aquatic life. Despite this, it has not exercised this option because such tests are too expensive. The Department has a structural deficit and I am not inclined to sign legislation that creates additional cost pressures.

Analysis Prepared by: Amy Gilson / E.S. & T.M. / (916) 319-3965 FN: 0005326

CONCURRENCE IN SENATE AMENDMENTS

CSA1 Bill Id:AB 2474

Author:(Quirk)

As Amended Ver:June 11, 2018

Majority vote

Original Committee Reference: E.S. & T.M.

SUMMARY: Authorizes the Department of Toxic Substance Control (DTSC) to adopt an optional, humane version of the acute aquatic toxicity test used in hazardous waste identification, should a test be found suitable for this purpose after evaluation by DTSC. Specifically, this bill:

1. Authorizes, to the extent funds are available, DTSC to evaluate the suitability of two acute aquatic toxicity test protocols, one testing for toxicity to fish embryos (fish embryo test) and the other for toxicity to daphnids (daphnid test), for hazardous waste identification.
2. Requires, if it finds that one or both tests is suitable and to the extent funds are available, DTSC to provide one or both of the tests as optional alternatives to the acute aquatic toxicity test currently in its regulations, which is performed on fish (fish test), after making any necessary adjustments to the test methods.

The Senate amendments make technical changes to accurately name the acute aquatic toxicity test on daphnids that the bill references.

EXISTING LAW: Requires DTSC to develop and adopt regulatory criteria and guidelines for the identification of hazardous wastes and extremely hazardous wastes.

FISCAL EFFECT: According to the Senate Appropriations Committee, while the bill does not mandate that DTSC conduct an evaluation, it is likely that it would result in cost pressures on the department. The evaluation described in the bill could cost up to $4.8 million over three years to develop a work plan for testing, conduct a comparative study, and potentially adopt regulations.

COMMENTS:

Hazardous waste identification: There are more than 100,000 businesses that generate hazardous waste in California. Waste generators are responsible for determining whether a waste is hazardous or non-hazardous and disposing of the waste accordingly. In California, a hazardous waste is any waste on a federally maintained Resource Conservation and Recovery Act (RCRA) list of hazardous wastes (e.g. some manufacturing wastes or discarded industrial chemicals, pharmaceuticals, and pesticides); that is derived from the RCRA wastes; or that is ignitable, corrosive, reactive, or toxic.

Defining a waste's toxicity in California: In California, a waste is classified as hazardous due to toxic properties if it is identified as having one or more of eight types of toxicity, including acute oral toxicity, acute dermal toxicity, acute inhalation toxicity, acute aquatic toxicity, or carcinogenicity. All of these types of toxicity can be determined using knowledge about the toxicity of constituent components of the waste except for acute aquatic toxicity.

Under current state regulations, acute aquatic toxicity is determined via the fish test by measuring a waste's toxicity to one of three types of fish (minnows, shiners, or trout) though, in practice, only minnows are used. In concept, a waste fails the acute aquatic fish test if, in a tank containing fish and waste, half of the fish in the tank are dead after 96-hours. Along with wastes containing intuitively toxic substances, such as arsenic, many household products (e.g. soaps) fail this test as well. Other than Washington State, there are not any other states that use acute aquatic toxicity testing as part of hazardous waste determination.

Welfare concerns and fish: Fish have pain receptors (nociceptors), which are a prerequisite for pain sensation but do not rule out that apparent pain responses are essentially unexperienced and mechanical. When injected with an irritating, but not injurious acid, fish eat less and do not flee objects they normally avoid. However, when also injected with morphine, their behavior remains closer to normal. The American Veterinary Medical Association's (AVMA) 2013 "Guidelines for the Euthanasia of Animals" state that, "…the preponderance of accumulated evidence supports the position that [fish] should be accorded the same considerations as terrestrial vertebrates in regard to relief from pain."

Consumer concern and over-classification of hazardous waste: Many people oppose animal testing. While there is no legal definition of "cruelty free" and "not tested on animals," many companies only use these labels if their products, when discarded, are not assessed using the fish test. Companies that do not test discarded products using the fish test treat their waste as hazardous by default, or risk liability under the California Hazardous Waste Control Law. Consequently, the lack of a humane option for hazardous waste identification leads to over-identification of hazardous waste.

SB 423 (Bates), Chapter 771, Statutes of 2016, required DTSC to convene a Retail Waste Workgroup (Workgroup) tasked with identifying regulatory and policy directives that need clarification for managing consumer products. In the Workgroup's final report to the legislature, the regulated community estimated that, "About 30% of the total hazardous waste generated in California is 'California-only' hazardous waste [i.e. waste that is only classified as hazardous because of the fish test] that could fail the [fish test]." The Personal Care Products Council estimates that 25% of their products are hazardous waste when discarded under RCRA, but 100% of their products are considered hazardous under California law. The regulated community noted that managing this waste as hazardous is costly and reduces opportunities for recycling. They identified the fish embryo test as a humane and modern alternative to the fish test. This bill seeks to continue and build off the efforts of the Workgroup by providing a humane alternative to the fish test.

Humane alternatives: This states that DTSC may, to the extent funds are available, evaluate whether two types of humane acute aquatic toxicity tests could be adapted for hazardous waste identification and, if so, requires DTSC to adopt, as adapted, the test(s) as optional alternatives to the fish test. The two types of test use either fish embryos or daphnids (an ecologically important microscopic crustacean that, like minnows, are already used in California to assess acute toxicity of waste water effluent).

Animal deaths, burdens on businesses committed to avoiding animal testing, and over-classification of hazardous waste could be avoided with the adoption of the fish embryo test or daphnid test as an optional alternative to the fish test.

Analysis Prepared by: Amy Gilson / E.S. & T.M. / (916) 319-3965 FN: 0004352

 THIRD READING  

Bill No: AB 2474

Author:

:

Vote:

SENATE ENVIRONMENTAL QUALITY COMMITTEE: 7-0, 6/20/18

AYES: Wieckowski, Stone, Gaines, Hill, Lara, Skinner, Stern

SENATE APPROPRIATIONS COMMITTEE: 7-0, 8/16/18

AYES: Portantino, Bates, Beall, Bradford, Hill, Nielsen, Wiener

ASSEMBLY FLOOR: 75-0, 5/30/18 - See last page for vote

SUBJECT:

SOURCE: Physicians Committee for Responsible Medicine

Social Compassion in Legislation

DIGEST:

This bill requires the Department of Toxic Substance Control (DTSC) to adopt a humane version of the acute aquatic toxicity test used in hazardous waste identification, should a test be found suitable for this purpose after an evaluation by DTSC.

ANALYSIS:

Existing law, the Hazardous Waste Control Law (HWCL):

1. Requires the DTSC to:
   
   1. Regulate the handling and management of hazardous waste.
      
   2. Develop and adopt by regulation criteria and guidelines for the identification of hazardous wastes and extremely hazardous wastes.
      
2. Defines “waste” as any solid, liquid, semisolid, or contained gaseous discarded material.
   
3. Provides, pursuant to regulations adopted pursuant to HWCL, that a waste exhibits the characteristic of toxicity if representative samples of the waste have any of specified properties, including, among others, that a concentration of the waste of less than 500 milligrams per liter in soft water results in a 50% mortality rate of specified fish species after 96 hours of exposure, pursuant to specified procedures.

This bill:

1. Authorizes DTSC, to the extent that funds are available for this purpose, to evaluate any of specified tests to determine whether the tests can be adapted to be appropriate for use in identifying substances as hazardous waste or extremely hazardous waste, consistent with the requirements of the hazardous waste control laws.
   
2. Requires DTSC, if it finds that any of the specified tests can be adapted, to authorize the use of each test found appropriate, as adapted, as an alternative to the fish mortality testing method described above.

Background

1. Defining a waste’s toxicity in California: In California, a waste is classified as hazardous due to toxic properties if it is identified as having one or more of eight types of toxicity, including acute oral toxicity, acute dermal toxicity, acute inhalation toxicity, acute aquatic toxicity, or carcinogenicity. (22 CCR 66261.24). With the exception of acute aquatic toxicity, all of these types of toxicity can be determined using knowledge about the toxicity of constituent components of the waste.
   
   Under current state regulations, acute aquatic toxicity is determined via the fish test by measuring a waste’s toxicity to one of three types of fish- minnows, shiners, or trout. It is most commonly performed on minnows (pimephales promelas) and colloquially referred to as the “minnow test.” This species of minnow is native to North America, but not to California. However, according to DTSC’s final statement of reasons justifying its criteria for hazardous waste identification (statement of reasons), issued in 1984, “none of the acute toxicity criteria is to be interpreted as predictive possible hazards of wastes only to specific organisms or in specific environments.” Other than Washington State, the committee is not aware of any other states that use acute aquatic toxicity testing as part of hazardous waste determination.
   
2. How DTSC selected the fish test: According to the statement of reasons, the fish test was selected to test acute aquatic toxicity because it was based on well-established methods and performed on common test organisms; would be useful for protecting the environment; and would be reflective of general toxicity. DTSC reasoned that testing on live organisms detects toxic characteristics of wastes that may not be captured in lists either because toxicity of constituent substances is unknown or because of synergistic toxicity of multiple constituent substances. In one case, a printing company dumped waste ink sludge at a municipal landfill not authorized to receive hazardous wastes. Analysis of the waste did not establish the presence of toxic materials; however, the acute aquatic fish toxicity test showed the sludge was highly toxic to fish. It was speculated that the ink contained a fungicide to prevent mildew. In several cases, DTSC noted that accidental or illegal discharge of hazardous waste resulted in fish kills. The statement of reasons also noted that the fish test may serve as an indicator of general toxicity of a waste, including to humans, in the view that fish are generally more sensitive to toxic substances than mammals.
   
3. Fish test protocol: The fish test seems to be based on methods for examining wastewater and special protocols that were developed for “materials that do not readily lend themselves to standard toxicity testing” including oily samples and samples containing sediment. In concept, a waste fails the acute aquatic fish toxicity test if, in a tank containing fish and 500 mg of waste/L, 50% of the fish in the tank are dead after 96-hours. In order to produce reliable results, this procedure must be performed multiple times at the 500 mg/L concentration, and at concentrations above and below 500 mg/L, each time using a minimum of twenty fish. Along with wastes containing intuitively toxic substances, such as arsenic, based on data from the Draft Retail Waste Aquatic Toxicity Project available on DTSC’s Internet Web site, many household products fail this test as well. Based on a retail waste aquatic toxicity testing project, these include ginko, ginger, zinc, and most if not all soaps and shampoos tested.
   
4. Welfare concerns and fish: Fish have pain receptors (nociceptors), which are a prerequisite for pain sensation but do not rule out that apparent pain responses are essentially unexperienced and mechanical. When injected with an irritating, but not injurious, acid, fish eat less and do not flee objects they normally avoid. However, when also injected with morphine, their behavior remains closer to normal. Fish learn, however in laboratory experiments, fish that naturally live in groups learn more slowly after having been kept in isolation.
   
   The American Veterinary Medical Association’s (AVMA) 2013 “Guidelines for the Euthanasia of Animals” state that, “Suggestions that finfish responses to pain merely represent simple reflexes have been refuted by studies demonstrating forebrain and midbrain electrical activity in response to stimulation and differing with type of nociceptor stimulation. Learning and memory consolidation in trials where finfish are taught to avoid noxious stimuli have moved the issue of finfish cognition and sentience forward to the point where the preponderance of accumulated evidence supports the position that finfish should be accorded the same considerations as terrestrial vertebrates in regard to relief from pain.”
   
5. Consumer concern and over-classification of hazardous waste: Many people oppose animal testing. While there is no legal definition of “Cruelty Free” and “Not Tested on Animals,” many companies only use these labels if their products, when discarded, are not assessed using the fish test. Companies that do not test discarded products using the fish test treat their waste as hazardous by default, or risk liability. Violations of the Hazardous Waste Control Law can lead to penalties up to $70,000 per day for each violation (HSC § 25188). Consequently, the lack of a humane option for hazardous waste identification leads to over-identification of hazardous waste.
   
   SB 423 (Bates, Chapter 771, Statutes of 2016) required DTSC to convene a Retail Waste Workgroup (Workgroup) tasked with identifying regulatory and policy directives that need clarification for managing consumer products. Over an eight-month period (October 2016 through May 2017), the Workgroup identified problems faced by the retail industry in applying the hazardous waste management standards in California and worked to identify possible solutions. In the Workgroup’s final report to the legislature, the regulated community estimated that, “About 30% of the total hazardous waste generated in California is ‘California-only’ hazardous waste [i.e. waste that is only classified as hazardous because of the fish test] that could fail the [fish test]. The percentages for retailer waste can be much higher, with some retailers managing up to 67% of their hazardous waste as ‘California-only’ hazardous waste.” The Personal Care Products Council estimates that 25% of their products are hazardous waste when discarded under RCRA, but 100% of their products are considered hazardous under California law. The regulated community noted that managing this waste as hazardous is costly and reduces opportunities for recycling and identified the fish embryo test (see below) as a humane and modern alternative to the fish test. AB 2474 seeks to continue and build off the efforts of the Workgroup by providing a humane alternative to the fish test.
   
6. Development of the fish embryo test: The fish embryo test measures toxicity to fish embryos (fertilized fish eggs) instead of adult fish. It was developed by the European Union (EU) to alleviate the need for the fish test because EU policy requires avoiding unnecessary animal testing where the same results can be obtained by other scientifically satisfactory methods. The method was officially adopted in 2013 as the “Organization for Economic Co-operation and Development (OECD) test guideline (236) for fish embryo acute toxicity (FET)” (OECD 236 Guidelines). OECD 236 is being incorporated into the EU regulatory framework as part of a weight of evidence approach to evaluating the toxicity of substances sold in the EU.
   
7. Fish embryo test protocol: The fish embryo test is based on the same principle as the fish test. Newly fertilized eggs are exposed to a test substance for a period of 96 hours and the concentration of substance sufficient for killing half the embryos by the end of this period is determined. However, the procedure for determining when the fish embryo has died involves examining the fish embryos every 24 hours for up to four signs of lethality, including lack of heartbeat.
   
8. Comparing the California fish test and OECD fish embryo tests: In Europe, the fish test is performed on zebra fish, a species native to the Himalaya region that is ubiquitous in scientific research, including in California, but does not seem to be used at the federal or state level for toxicity testing. The embryo fish test described in the OECD 236 test was developed for zebra fish embryos and likely cannot be applied directly to minnows. However, given the fact that the results of any aquatic toxicity test are not intended to be predictive of toxicity only of a single species, as described in DTSC’s statement of reasons, this does not seem to be a fatal flaw.
   
   Next, consider the difference between testing on fish embryos as opposed to mature fish. Over the course of an organism’s lifetime, its susceptibility to various toxins may increase or decrease. Lead provides a well-known example of this in humans; children are more adversely affected by lead than adults. However, studies have found a good correlation and similar sensitivity between the results of the fish embryo and adult fish tests, though, at least in zebrafish, the fish embryo may be slightly less sensitive.
9. Considerations: It is unclear how conflicting acute aquatic toxicity test results would be handled under current regulation, for example, if a waste passes when tested on minnows but fails when tested on trout.

Comments

Purpose of Bill. According to the author, “Waste generators are responsible for determining whether a waste is hazardous or non-hazardous. DTSC has a list of requirements generators must meet in order to handle waste as non-hazardous. One component of this determination is commonly referred to as the ‘minnow test,’ which proceeds by measuring the lethal dose of a waste to fish. The goal of the minnow test is to protect California’s environment by making sure wastes that are toxic to aquatic life are handled appropriately. If a product passes this, and the other hazardous waste requirements, a company can avoid onerous handling of the product but cannot label it ‘cruelty free’ or ‘not tested on animals.’ Companies that share the concern regarding animal testing must treat their waste as hazardous by default. This allows companies to label their products ‘cruelty free’ or ‘not tested on animals’ but now must treat their product differently for purposes of waste. Consequently, the lack of a humane option for hazardous waste identification leads to over-identification of hazardous waste. My bill would provide a humane and optional alternative to the minnow test, and as a result, lead to more accurate hazardous waste determinations.”

FISCAL EFFECT: Appropriation: Fiscal Com.: Local:

According to the Senate Appropriations Committee, while the bill does not mandate that DTSC conduct an evaluation, it is likely that it would result in cost pressures on the department. The evaluation described in the bill would cost of $4.8 million over three years to develop a work plan for testing, conduct a comparative study, and potentially adopt regulations.

SUPPORT: (Verified 8/18/18)

Physicians Committee for Responsible Medicine (source)

Social Compassion in Legislation (source)

California Chamber of Commerce

Personal Care Products Council

PETA International Science Consortium

Southwest California Legislative Council

The Humane Society of the United States

OPPOSITION: (Verified 8/18/18)

None received

ASSEMBLY FLOOR: 75-0, 5/30/18

AYES: Acosta, Travis Allen, Arambula, Baker, Berman, Bigelow, Bloom, Bonta, Brough, Burke, Caballero, Calderon, Carrillo, Cervantes, Chau, Chávez, Chen, Chiu, Choi, Chu, Cooley, Cunningham, Dahle, Daly, Eggman, Flora, Fong, Frazier, Friedman, Gallagher, Cristina Garcia, Eduardo Garcia, Gipson, Gloria, Gonzalez Fletcher, Gray, Grayson, Harper, Holden, Irwin, Jones-Sawyer, Kalra, Kamlager-Dove, Kiley, Lackey, Levine, Limón, Low, Maienschein, Mathis, Mayes, Medina, Melendez, Mullin, Muratsuchi, Nazarian, Obernolte, O'Donnell, Patterson, Quirk, Quirk-Silva, Reyes, Rodriguez, Rubio, Salas, Santiago, Steinorth, Mark Stone, Thurmond, Ting, Voepel, Waldron, Weber, Wood, Rendon

NO VOTE RECORDED: Aguiar-Curry, Cooper, McCarty

Prepared by:

8/18/18 16:17:24

**** END ****

SENATE COMMITTEE ON

Senator Anthony Portantino, Chair

2017 - 2018 Regular Session

AB 2474 (Quirk) - Hazardous waste: identification: testing

This bill meets the criteria for referral to the Suspense File.

Bill Summary:

This bill would require the Department of Toxic Substance Control (DTSC) to adopt a humane version of the acute aquatic toxicity test used in hazardous waste identification, should a test be found suitable for this purpose after an evaluation by DTSC. Specifically, this bill:

Fiscal Impact:

While the bill does not mandate that DTSC conduct an evaluation, it is likely that it would result in cost pressures on the department. The evaluation described in the bill would cost of $4.8 million over three years to develop a work plan for testing, conduct a comparative study, and potentially adopt regulations.

Background: Existing law charges DTSC with regulating the generation, management, and disposal of hazardous wastes, which are solids wastes that may, because of its quantity, concentration, or physical, chemical, or infectious characteristics may: Cause or significantly contribute to an increase in mortality or an increase in serious irreversible or incapacitating reversible illness; or, Pose a substantial present or potential hazard to human health or the environment when improperly treated, stored, transported, or disposed of, or otherwise managed. Existing California regulations characterize a waste as hazardous if it has a high acutely aquatic toxicity, as measured by a fish test on minnows, shiners, or trout.

To determine if a product will be a hazardous waste at the end of its useful life, manufacturers must submit their products to a number of different tests, including a "minnow test" to determine if the product will have a high acute aquatic toxicity. The minnow test serves as an indicator of toxicity because fish are typically more sensitive to toxic substances than are mammals.

The U.S. Environmental Protection Agency allows the use of a daphnid test to evaluate the toxicity of effluents. Adopted in 2002, the test exposes daphnids, tiny invertebrates commonly called water fleas, to various effluent wastes. Daphnids are small planktonic crustaceans up to 5mm long that feed on algae and serve as food for small fish.

Proposed Law:

This bill would require the Department of Toxic Substance Control (DTSC) to adopt a humane version of the acute aquatic toxicity test used in hazardous waste identification, should a test be found suitable for this purpose after an evaluation by DTSC. Specifically, this bill would:

1. Requires DTSC to evaluate the suitability of two acute aquatic toxicity test protocols, one testing for toxicity to fish embryos (fish embryo test) and the other for toxicity to daphnids (daphnid test), for hazardous waste identification.
2. Requires DTSC, should it find one or both tests is suitable, to provide one or both of the tests as optional alternatives to the acute aquatic toxicity test (fish test) currently in its regulations.

Staff Comments:

Staff notes that DTSC’s main special fund, the Hazardous Waste Control Account, has a significant structural deficit and is likely to be depleted within the current year.

-- END --

SENATE COMMITTEE ON ENVIRONMENTAL QUALITY

Senator Wieckowski, Chair

2017 - 2018 Regular

Bill No: AB 2474

SUBJECT: Hazardous waste: identification: testing

ANALYSIS:

Existing law, the Hazardous Waste Control Law (HWCL):

1. Requires the Department of Toxic Substances Control (DTSC) to:
   
   1. Regulate the handling and management of hazardous waste.
      
   2. Develop and adopt by regulation criteria and guidelines for the identification of hazardous wastes and extremely hazardous wastes.
      
2. Defines “waste” as any solid, liquid, semisolid, or contained gaseous discarded material.
   
3. Pursuant to regulations adopted pursuant to HWCL, provides that a waste exhibits the characteristic of toxicity if representative samples of the waste have any of specified properties, including, among others, that a concentration of the waste of less than 500 milligrams per liter in soft water results in a 50% mortality rate of specified fish species after 96 hours of exposure, pursuant to specified procedures.

This bill:

1. Authorizes DTSC, to the extent that funds are available for this purpose, to evaluate any of specified tests to determine whether the tests can be adapted to be appropriate for use in identifying substances as hazardous waste or extremely hazardous waste, consistent with the requirements of the hazardous waste control laws.
   
2. Requires DTSC, if it finds that any of the specified tests can be adapted, to authorize the use of each test found appropriate, as adapted, as an alternative to the fish mortality testing method described above.

Background

1. Defining a waste’s toxicity in California: In California, a waste is classified as hazardous due to toxic properties if it is identified as having one or more of eight types of toxicity, including acute oral toxicity, acute dermal toxicity, acute inhalation toxicity, acute aquatic toxicity, or carcinogenicity. (22 CCR 66261.24). With the exception of acute aquatic toxicity, all of these types of toxicity can be determined using knowledge about the toxicity of constituent components of the waste.
   
   Under current state regulations, acute aquatic toxicity is determined via the fish test by measuring a waste’s toxicity to one of three types of fish- minnows, shiners, or trout. It is most commonly performed on minnows (pimephales promelas) and colloquially referred to as the “minnow test.” This species of minnow is native to North America, but not to California. However, according to DTSC’s final statement of reasons justifying its criteria for hazardous waste identification (statement of reasons), issued in 1984, “none of the acute toxicity criteria is to be interpreted as predictive possible hazards of wastes only to specific organisms or in specific environments.” Other than Washington State, the committee is not aware of any other states that use acute aquatic toxicity testing as part of hazardous waste determination.
   
2. How DTSC selected the fish test: According to the statement of reasons, the fish test was selected to test acute aquatic toxicity because it was based on well-established methods and performed on common test organisms; would be useful for protecting the environment; and would be reflective of general toxicity. DTSC reasoned that testing on live organisms detects toxic characteristics of wastes that may not be captured in lists either because toxicity of constituent substances is unknown or because of synergistic toxicity of multiple constituent substances. In one case, a printing company dumped waste ink sludge at a municipal landfill not authorized to receive hazardous wastes. Analysis of the waste did not establish the presence of toxic materials; however, the acute aquatic fish toxicity test showed the sludge was highly toxic to fish. It was speculated that the ink contained a fungicide to prevent mildew. In several cases, DTSC noted that accidental or illegal discharge of hazardous waste resulted in fish kills. The statement of reasons also noted that the fish test may serve as an indicator of general toxicity of a waste, including to humans, in the view that fish are generally more sensitive to toxic substances than mammals.
   
3. Fish test protocol: The fish test seems to be based on methods for examining wastewater and special protocols that were developed for “materials that do not readily lend themselves to standard toxicity testing” including oily samples and samples containing sediment. In concept, a waste fails the acute aquatic fish toxicity test if, in a tank containing fish and 500 mg of waste/L, 50% of the fish in the tank are dead after 96-hours. In order to produce reliable results, this procedure must be performed multiple times at the 500 mg/L concentration, and at concentrations above and below 500 mg/L, each time using a minimum of twenty fish. Along with wastes containing intuitively toxic substances, such as arsenic, based on data from the Draft Retail Waste Aquatic Toxicity Project available on DTSC’s Internet Website, many household products fail this test as well. Based on a retail waste aquatic toxicity testing project, these include ginko, ginger, zinc, and most if not all soaps and shampoos tested.
   
4. Welfare concerns and fish: Fish have pain receptors (nociceptors), which are a prerequisite for pain sensation but do not rule out that apparent pain responses are essentially unexperienced and mechanical. When injected with an irritating, but not injurious, acid, fish eat less and do not flee objects they normally avoid. However, when also injected with morphine, their behavior remains closer to normal. Fish learn, however in laboratory experiments, fish that naturally live in groups learn more slowly after having been kept in isolation.
   
   The American Veterinary Medical Association’s (AVMA) 2013 “Guidelines for the Euthanasia of Animals” state that, “Suggestions that finfish responses to pain merely represent simple reflexes have been refuted by studies demonstrating forebrain and midbrain electrical activity in response to stimulation and differing with type of nociceptor stimulation. Learning and memory consolidation in trials where finfish are taught to avoid noxious stimuli have moved the issue of finfish cognition and sentience forward to the point where the preponderance of accumulated evidence supports the position that finfish should be accorded the same considerations as terrestrial vertebrates in regard to relief from pain.”
   
5. Consumer concern and over-classification of hazardous waste: Many people oppose animal testing. While there is no legal definition of “Cruelty Free” and “Not Tested on Animals,” many companies only use these labels if their products, when discarded, are not assessed using the fish test. Companies that do not test discarded products using the fish test treat their waste as hazardous by default, or risk liability. Violations of the Hazardous Waste Control Law can lead to penalties up to $70,000 per day for each violation (HSC § 25188). Consequently, the lack of a humane option for hazardous waste identification leads to over-identification of hazardous waste.
   
   SB 423 (Bates, Chapter 771, Statutes of 2016) required DTSC to convene a Retail Waste Workgroup (Workgroup) tasked with identifying regulatory and policy directives that need clarification for managing consumer products. Over an eight-month period (October 2016 through May 2017), the Workgroup identified problems faced by the retail industry in applying the hazardous waste management standards in California and worked to identify possible solutions. In the Workgroup’s final report to the legislature, the regulated community estimated that, “About 30% of the total hazardous waste generated in California is ‘California-only’ hazardous waste [i.e. waste that is only classified as hazardous because of the fish test] that could fail the [fish test]. The percentages for retailer waste can be much higher, with some retailers managing up to 67% of their hazardous waste as ‘California-only’ hazardous waste.” The Personal Care Products Council estimates that 25% of their products are hazardous waste when discarded under RCRA, but 100% of their products are considered hazardous under California law. The regulated community noted that managing this waste as hazardous is costly and reduces opportunities for recycling and identified the fish embryo test (see below) as a humane and modern alternative to the fish test. AB 2474 seeks to continue and build off the efforts of the Workgroup by providing a humane alternative to the fish test.
   
6. Development of the fish embryo test: The fish embryo test measures toxicity to fish embryos (fertilized fish eggs) instead of adult fish. It was developed by the European Union (EU) to alleviate the need for the fish test because EU policy requires avoiding unnecessary animal testing where the same results can be obtained by other scientifically satisfactory methods. The method was officially adopted in 2013 as the “Organization for Economic Co-operation and Development (OECD) test guideline (236) for fish embryo acute toxicity (FET)” (OECD 236 Guidelines). OECD 236 is being incorporated into the EU regulatory framework as part of a weight of evidence approach to evaluating the toxicity of substances sold in the EU.
   
7. Fish embryo test protocol: The fish embryo test is based on the same principle as the fish test. Newly fertilized eggs are exposed to a test substance for a period of 96 hours and the concentration of substance sufficient for killing half the embryos by the end of this period is determined. However, the procedure for determining when the fish embryo has died involves examining the fish embryos every 24 hours for up to four signs of lethality, including lack of heartbeat.
   
8. Comparing the California fish test and OECD fish embryo tests: In Europe, the fish test is performed on zebra fish, a species native to the Himalaya region that is ubiquitous in scientific research, including in California, but does not seem to be used at the federal or state level for toxicity testing. The embryo fish test described in the OECD 236 test was developed for zebra fish embryos and likely cannot be applied directly to minnows. However, given the fact that the results of any aquatic toxicity test are not intended to be predictive of toxicity only of a single species, as described in DTSC’s statement of reasons, this does not seem to be a fatal flaw.
   
   Next, consider the difference between testing on fish embryos as opposed to mature fish. Over the course of an organism’s lifetime, its susceptibility to various toxins may increase or decrease. Lead provides a well-known example of this in humans; children are more adversely affected by lead than adults. However, studies have found a good correlation and similar sensitivity between the results of the fish embryo and adult fish tests, though, at least in zebrafish, the fish embryo may be slightly less sensitive.
9. Considerations: It is unclear how conflicting acute aquatic toxicity test results would be handled under current regulation, for example, if a waste passes when tested on minnows but fails when tested on trout.

Comments

1. Purpose of Bill. According to the author, “Waste generators are responsible for determining whether a waste is hazardous or non-hazardous. DTSC has a list of requirements generators must meet in order to handle waste as non-hazardous. One component of this determination is commonly referred to as the ‘minnow test,’ which proceeds by measuring the lethal dose of a waste to fish. The goal of the minnow test is to protect California’s environment by making sure wastes that are toxic to aquatic life are handled appropriately. If a product passes this, and the other hazardous waste requirements, a company can avoid onerous handling of the product but cannot label it ‘cruelty free’ or ‘not tested on animals.’ Companies that share the concern regarding animal testing must treat their waste as hazardous by default. This allows companies to label their products ‘cruelty free’ or ‘not tested on animals’ but now must treat their product differently for purposes of waste. Consequently, the lack of a humane option for hazardous waste identification leads to over-identification of hazardous waste. My bill would provide a humane and optional alternative to the minnow test, and as a result, lead to more accurate hazardous waste determinations.”

SOURCE:

Social Compassion in Legislation

Physicians Committee for Responsible Medicine

SUPPORT:

California Chamber of Commerce

Humane Society of the United States

Personal Care Products Council

PETA International Science Consortium*

Physicians Committee for Responsible Medicine

Social Compassion in Legislation

1 Individual*

OPPOSITION:

None received

-- END --

ASSEMBLY THIRD READING

ATR Bill Id:AB 2474

Author:(Quirk)

As Amended Ver:May 25, 2018

Majority vote

SUMMARY: Authorizes the Department of Toxic Substance Control (DTSC) to adopt an optional, humane version of the acute aquatic toxicity test used in hazardous waste identification, should a test be found suitable for this purpose after evaluation by DTSC. Specifically, this bill:

1. Authorizes, to the extent funds are available, DTSC to evaluate the suitability of two acute aquatic toxicity test protocols, one testing for toxicity to fish embryos (fish embryo test) and the other for toxicity to daphnids (daphnid test), for hazardous waste identification.
2. Requires, if it finds that one or both tests is suitable and to the extent funds are available, DTSC to provide one or both of the tests as optional alternatives to the acute aquatic toxicity test currently in its regulations, which is performed on fish (fish test), after making any necessary adjustments to the test methods.

FISCAL EFFECT: According to the Assembly Appropriations Committee, enactment of this bill would have no fiscal impact on the state.

COMMENTS:

Need for the bill: According to the author,

Waste generators are responsible for determining whether a waste is hazardous or non-hazardous. DTSC has a list of requirements generators must meet in order to handle waste as non-hazardous. One component of this determination is commonly referred to as the 'minnow test,' which proceeds by measuring the lethal dose of a waste to fish. The goal of the minnow test is to protect California's environment by making sure wastes that are toxic to aquatic life are handled appropriately. If a product passes this, and the other hazardous waste requirements, a company can avoid onerous handling of the product but cannot label it 'cruelty free' or 'not tested on animals.' Companies that are the concerned about animal testing chose not to use this minnow test and must treat their waste as hazardous by default. This allows companies to label their products 'cruelty free' or 'not tested on animals' but now they must treat their product differently for purposes of waste. Consequently, the lack of a humane option for hazardous waste identification leads to over-identification of hazardous waste. My bill could provide a humane and optional alternative to the minnow test, and as a result, lead to more accurate hazardous waste determinations.

Hazardous waste identification: There are more than 100,000 businesses that generate hazardous waste in California. Waste generators are responsible for determining whether a waste is hazardous or non-hazardous and disposing of the waste accordingly. In California, a hazardous waste is any waste on a federally maintained Resource Conservation and Recovery Act (RCRA) list of hazardous wastes (e.g. some manufacturing wastes or discarded industrial chemicals, pharmaceuticals, and pesticides); that is derived from these wastes; or that is ignitable, corrosive, reactive, or toxic.

Defining a waste's toxicity in California: In California, a waste is classified as hazardous due to toxic properties if it is identified as having one or more of eight types of toxicity, including acute oral toxicity, acute dermal toxicity, acute inhalation toxicity, acute aquatic toxicity, or carcinogenicity. All of these types of toxicity can be determined using knowledge about the toxicity of constituent components of the waste except for acute aquatic toxicity.

Under current state regulations, acute aquatic toxicity is determined via the fish test by measuring a waste's toxicity to one of three types of fish (minnows, shiners, or trout) though, in practice, only minnows are used. In concept, a waste fails the acute aquatic fish test if, in a tank containing fish and waste, half of the fish in the tank are dead after 96-hours. Along with wastes containing intuitively toxic substances, such as arsenic, many household products (e.g. soaps) fail this test as well. Other than Washington State, there are not any other states that use acute aquatic toxicity testing as part of hazardous waste determination.

Welfare concerns and fish: Fish have pain receptors (nociceptors), which are a prerequisite for pain sensation but do not rule out that apparent pain responses are essentially unexperienced and mechanical. When injected with an irritating, but not injurious acid, fish eat less and do not flee objects they normally avoid. However, when also injected with morphine, their behavior remains closer to normal. The American Veterinary Medical Association's (AVMA) 2013 "Guidelines for the Euthanasia of Animals" state that, "…the preponderance of accumulated evidence supports the position that [fish] should be accorded the same considerations as terrestrial vertebrates in regard to relief from pain."

Consumer concern and over-classification of hazardous waste: Many people oppose animal testing. While there is no legal definition of "cruelty free" and "not tested on animals," many companies only use these labels if their products, when discarded, are not assessed using the fish test. Companies that do not test discarded products using the fish test treat their waste as hazardous by default, or risk liability under the Hazardous Waste Control Law. Consequently, the lack of a humane option for hazardous waste identification leads to over-identification of hazardous waste.

SB 423 (Bates), Chapter 771, Statutes of 2016, required DTSC to convene a Retail Waste Workgroup (Workgroup) tasked with identifying regulatory and policy directives that need clarification for managing consumer products. In the Workgroup's final report to the legislature, the regulated community estimated that, "About 30% of the total hazardous waste generated in California is 'California-only' hazardous waste [i.e. waste that is only classified as hazardous because of the fish test] that could fail the [fish test]." The Personal Care Products Council estimates that 25% of their products are hazardous waste when discarded under RCRA, but 100% of their products are considered hazardous under California law. The regulated community noted that managing this waste as hazardous is costly and reduces opportunities for recycling. They identified the fish embryo test as a humane and modern alternative to the fish test. AB 2474 seeks to continue and build off the efforts of the Workgroup by providing a humane alternative to the fish test.

Humane alternatives: This states that DTSC may, to the extent funds are available, evaluate whether two types of humane acute aquatic toxicity tests could be adapted for hazardous waste identification and, if so, requires DTSC to adopt, as adapted, the test(s) as optional alternatives to the fish test. The two types of test use either fish embryos or daphnids (an ecologically important microscopic crustacean that, like minnows, are already used in California to assess acute toxicity of waste water effluent).

Animal deaths, burdens on businesses committed to avoiding animal testing, and over-classification of hazardous waste could be avoided with the adoption of the fish embryo test or daphnid test as an optional alternative to the fish test.

Analysis Prepared by: Amy Gilson / E.S. & T.M. / (916) 319-3965 FN: 0003449

Date of Hearing: May 23, 2018

ASSEMBLY COMMITTEE ON APPROPRIATIONS

Lorena Gonzalez Fletcher, Chair

ABPCA Bill Id:AB 2474

Author:(Quirk) – As Amended Ver:April 17, 2018

Urgency: No State Mandated Local Program: No Reimbursable: No

SUMMARY:

This bill requires the Department of Toxic Substance Control (DTSC) to adopt a humane version of the acute aquatic toxicity test used in hazardous waste identification, should a test be found suitable for this purpose after an evaluation by DTSC. Specifically, this bill:

1. Requires DTSC to evaluate the suitability of two acute aquatic toxicity test protocols, one testing for toxicity to fish embryos (fish embryo test) and the other for toxicity to daphnids (daphnid test), for hazardous waste identification.
2. Requires DTSC, should it find one or both tests is suitable, to provide one or both of the tests as optional alternatives to the acute aquatic toxicity test (fish test) currently in its regulations.

FISCAL EFFECT:

One-time DTSC costs of $4.8 million over three years to develop a work plan for testing, conduct a comparative study, and potentially adopt regulations. Additionally, DTSC would need to contract with an external lab (GF or special fund).

COMMENTS:

1. Background. In California, a waste is classified as hazardous if it has one or more types of toxicity, including acute oral toxicity, acute dermal toxicity, acute inhalation toxicity, acute aquatic toxicity, or carcinogenicity. All types of toxicity can be determined using knowledge about the toxicity of constituent components, except for acute aquatic toxicity.

Under current state regulations, acute aquatic toxicity is determined by the fish test which measures a waste’s toxicity to one of three types of fish--minnows, shiners, or trout, but is most commonly performed on minnows.

Many people oppose animal testing. While there is no legal definition of "Cruelty Free" and "Not Tested on Animals," many companies only use these labels if their products, when discarded, are not assessed using the fish test. Companies that do not test discarded products using the fish test treat their waste as hazardous by default or risk liability. Because violations of the Hazardous Waste Control Law can lead to penalties of up to $70,000 per day for each violation, the lack of a humane testing option leads to the over-identification of hazardous waste to avoid such penalties.

1. Purpose. SB 423 (Bates), Chapter 771, Statutes of 2016, required DTSC to convene a Retail Waste Workgroup (Workgroup) to identify regulatory and policy directives for managing consumer products. Over an eight-month period (October 2016 through May 2017), the Workgroup identified problems faced by the retail industry in applying the hazardous waste management standards in California and worked to identify possible solutions.

In the Workgroup’s final report to the Legislature, the regulated community estimated, "About 30% of the total hazardous waste generated in California is ‘California-only’ hazardous waste (i.e. waste that is only classified as hazardous because of the fish test).”

Acute aquatic toxicity can be measured for species other than fish, and the US EPA acute toxicity whole effluent testing methods, adopted in 2002 and used in California, provide test methods for several daphnid species along with those for minnow, shiners, and trout.

Daphnids are tiny invertebrate animals less than 5 millimeters long that are commonly called "water fleas" because of their bug-like appearance under magnification. Adopting a daphnid test as an optional alternative that would have the advantage of avoiding testing on vertebrate species altogether and building off of methods already widely used in the state. Animal deaths, burdens on businesses committed to avoiding animal testing, and over-classification of hazardous waste could be avoided with the adoption of the daphnid test as an optional alternative to the fish test.

According to the author, “The lack of humane options for hazardous waste identification leads to the over-identification of hazardous waste. AB 2474 provides a humane alternative to the minnow test, and will lead to more accurate hazardous waste determinations."

Analysis Prepared by: Jennifer Galehouse / APPR. / (916) 319-2081

Date of Hearing: April 24, 2018

ASSEMBLY COMMITTEE ON ENVIRONMENTAL SAFETY AND TOXIC MATERIALS

Bill Quirk, Chair

ABPCA Bill Id:AB 2474 (

Author:Quirk) – As Amended Ver:April 17, 2018

SUBJECT: Hazardous waste: identification: testing

SUMMARY: Requires the Department of Toxic Substance Control (DTSC) to adopt as an option, a humane version of the acute aquatic toxicity test used in hazardous waste identification, should a test be found suitable for this purpose after evaluation by DTSC. Specifically, this bill:

1. Requires DTSC to evaluate the suitability of two acute aquatic toxicity test protocols, one testing for toxicity to fish embryos (fish embryo test) and the other for toxicity to daphnids (daphnid test), for hazardous waste identification.
2. Requires DTSC, should it find that one or both tests is suitable and after making any necessary adjustments to the test methods, to provide one or both of the tests as optional alternatives to the acute aquatic toxicity test currently in its regulations, which is performed on fish (fish test).

EXISTING LAW:

Under Federal Law:

1. Creates the framework for management of hazardous and non-hazardous solid waste under The Resource Conservation and Recovery Act (RCRA). (42 U.S.C. §6901)

Under State Law:

1. Creates the Hazardous Waste Control Law (HWCL), which authorizes the DTSC to regulate the management of hazardous wastes in California. (Health and Safety Code (HSC) § 25100 et. seq.)
2. Defines "waste" as any solid, liquid, semisolid, or contained gaseous discarded material. (HSC § 25124)
3. Requires DTSC to develop and adopt regulatory criteria and guidelines for the identification of hazardous wastes and extremely hazardous wastes. Specifies that a waste may be hazardous because of its quantity, concentration, physical, chemical, or infectious characteristics, if it:
   1. Causes, or significantly contributes to an increase in mortality or an increase in serious irreversible, or incapacitating reversible, illness; or
   2. Poses a substantial present or potential hazard to human health or the environment, due to factors including, but not limited to, carcinogenicity, acute toxicity, chronic toxicity, bio accumulative properties, or persistence in the environment, when improperly treated, stored, transported, or disposed of, or otherwise managed. (HSC § 25141)
4. Specifies that a waste is a toxic hazardous waste if it meets one or more of several criteria, including if it is characterized as having a high acutely aquatic toxicity as measured by the prescribed test. (22 California Code of Regulation (CCR) § 66261.24)
5. Authorizes DTSC to conduct inspections, conduct sampling activities, inspect and copy documents, and take photographs at sites or establishments where hazardous wastes are stored, handled, processed, treated, or disposed. (HSC § 25185)

FISCAL EFFECT: Unknown.

COMMENTS:

Need for the bill: According to the author,

"Waste generators are responsible for determining whether a waste is hazardous or non-hazardous. DTSC has a list of requirements generators must meet in order to handle waste as non-hazardous. One component of this determination is commonly referred to as the ‘minnow test,’ which proceeds by measuring the lethal dose of a waste to fish. The goal of the minnow test is to protect California’s environment by making sure wastes that are toxic to aquatic life are handled appropriately. If a product passes this, and the other hazardous waste requirements, a company can avoid onerous handling of the product but cannot label it ‘cruelty free’ or ‘not tested on animals.’ Companies that share the concern regarding animal testing must treat their waste as hazardous by default. This allows companies to label their products ‘cruelty free’ or ‘not tested on animals’ but now must treat their product differently for purposes of waste. Consequently, the lack of a humane option for hazardous waste identification leads to over-identification of hazardous waste. My bill would provide a humane and optional alternative to the minnow test, and as a result, lead to more accurate hazardous waste determinations."

Hazardous waste identification: There are more than 100,000 businesses that generate hazardous waste in California. Waste generators are responsible for determining whether a waste is hazardous or non-hazardous and disposing of the waste accordingly. In California, a hazardous waste is any waste on a federally maintained RCRA list of hazardous wastes, that is derived from these wastes, or that is ignitable, corrosive, reactive, or toxic. In order to list a waste, the United State Environmental Protection Agency (US EPA) assesses whether the waste:

1. Exhibits any of the characteristics, i.e., ignitability, corrosivity, reactivity, or toxicity;
2. Is fatal to humans or animals at low doses i.e. is acutely toxic; or,
3. 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.

The listed wastes are named in the following:

1. F-list: Wastes common to many manufacturing and industrial processes, such as solvent used for cleaning.
2. K-list: Wastes generated by specific industries, including petroleum refining and pesticide manufacturing.
3. P-list and U-list: Commercial products, such as industrial chemicals or pharmaceuticals, that have not been used and will be discarded.
4. M-list: Wastes known to contain mercury, such as fluorescent lamps.

Defining a waste’s toxicity in California: In California, a waste is classified as hazardous due to toxic properties if it is identified as having one or more of eight types of toxicity, including acute oral toxicity, acute dermal toxicity, acute inhalation toxicity, acute aquatic toxicity, or carcinogenicity. (22 CCR 66261.24). All of these types of toxicity can be determined using knowledge about the toxicity of constituent components of the waste except for acute aquatic toxicity.

Under current state regulations, acute aquatic toxicity is determined via the fish test by measuring a waste’s toxicity to one of three types of fish- minnows, shiners, or trout. It is most commonly performed on minnows (pimephales promelas) and colloquially referred to as the "minnow test." This species of minnow is native to North America, but not to California. However, according to DTSC’s final statement of reasons justifying its criteria for hazardous waste identification (statement of reasons), issued in 1984, "none of the acute toxicity criteria is to be interpreted as predictive possible hazards of wastes only to specific organisms or in specific environments." Other than Washington State, the committee is not aware of any other states that use acute aquatic toxicity testing as part of hazardous waste determination.

How DTSC selected the fish test: According to the statement of reasons, the fish test was selected to test acute aquatic toxicity because it was based on well-established methods and performed on common test organisms; would be useful for protecting the environment; and would be reflective of general toxicity. DTSC reasoned that testing on live organisms detects toxic characteristics of wastes that may not be captured in lists either because toxicity of constituent substances is unknown or because of synergistic toxicity of multiple constituent substances. In one case, a printing company dumped waste ink sludge at a municipal landfill not authorized to receive hazardous wastes. Analysis of the waste did not establish the presence of toxic materials; however, the acute aquatic fish toxicity test showed the sludge was highly toxic to fish. It was speculated that the ink contained a fungicide to prevent mildew. In several cases, DTSC noted that accidental or illegal discharge of hazardous waste resulted in fish kills. The statement of reasons also noted that the fish test may serve as an indicator of general toxicity of a waste, including to humans, in the view that fish are generally more sensitive to toxic substances than mammals.

Fish test protocol: The fish test seems to be based on methods for examining wastewater and special protocols were developed for "materials that do not readily lend themselves to standard toxicity testing" including oily samples, samples containing sediment. In concept, a waste fails the acute aquatic fish toxicity test if, in a tank containing fish and 500 mg of waste/L, 50% of the fish in the tank are dead after 96-hours. In order to produce reliable results, this procedure must be performed multiple times at the 500 mg/L concentration, and at concentrations above and below 500 mg/L, each time using a minimum of twenty fish. Along with wastes containing intuitively toxic substances, such as arsenic, based on data from the Draft Retail Waste Aquatic Toxicity Project available on DTSC’s Internet Website, many household products fail this test as well. Based on a retail waste aquatic toxicity testing project, these include ginko, ginger, zinc, and most if not all soaps and shampoos tested.

Welfare concerns and fish: Fish have pain receptors (nociceptors), which are a prerequisite for pain sensation but do not rule out that apparent pain responses are essentially unexperienced and mechanical. When injected with an irritating, but not injurious, acid, fish eat less and do not flee objects they normally avoid. However, when also injected with morphine, their behavior remains closer to normal. Fish learn, however in laboratory experiments, fish that naturally live in groups learn more slowly after having been kept in isolation.

The American Veterinary Medical Association’s (AVMA) 2013 "Guidelines for the Euthanasia of Animals" state that, "Suggestions that finfish responses to pain merely represent simple reflexes have been refuted by studies demonstrating forebrain and midbrain electrical activity in response to stimulation and differing with type of nociceptor stimulation. Learning and memory consolidation in trials where finfish are taught to avoid noxious stimuli have moved the issue of finfish cognition and sentience forward to the point where the preponderance of accumulated evidence supports the position that finfish should be accorded the same considerations as terrestrial vertebrates in regard to relief from pain."

Consumer concern and over-classification of hazardous waste: Many people oppose animal testing. While there is no legal definition of "Cruelty Free" and "Not Tested on Animals," many companies only use these labels if their products, when discarded, are not assessed using the fish test. Companies that do not test discarded products using the fish test treat their waste as hazardous by default, or risk liability. Violations of the Hazardous Waste Control Law can lead to penalties up to $70,000 per day for each violation (HSC § 25188). Consequently, the lack of a humane option for hazardous waste identification leads to over-identification of hazardous waste.

SB 423 (Bates, Chapter 771, Statutes of 2016) required DTSC to convene a Retail Waste Workgroup (Workgroup) tasked with identifying regulatory and policy directives that need clarification for managing consumer products. Over an eight-month period (October 2016 through May 2017), the Workgroup identified problems faced by the retail industry in applying the hazardous waste management standards in California and worked to identify possible solutions. In the Workgroup’s final report to the legislature, the regulated community estimated that, "About 30% of the total hazardous waste generated in California is ‘California-only’ hazardous waste [i.e. waste that is only classified as hazardous because of the fish test] that could fail the [fish test]. The percentages for retailer waste can be much higher, with some retailers managing up to 67% of their hazardous waste as ‘California-only’ hazardous waste." The Personal Care Products Council estimates that 25% of their products are hazardous waste when discarded under RCRA, but 100% of their products are considered hazardous under California law. The regulated community noted that managing this waste as hazardous is costly and reduces opportunities for recycling and identified the fish embryo test as a humane and modern alternative to the fish test. AB 2474 seeks to continue and build off the efforts of the Workgroup by providing a humane alternative to the fish test.

Development of the fish embryo test: The fish embryo test measures toxicity to fish embryos (fertilized fish eggs) instead of adult fish. It was developed by the European Union (EU) to alleviate the need for the fish test because EU policy requires avoiding unnecessary animal testing where the same results can be obtained by other scientifically satisfactory methods. The method was officially adopted in 2013 as the "Organization for Economic Co-operation and Development (OECD) test guideline (236) for fish embryo acute toxicity (FET)" (OECD 236 Guidelines). OECD 236 is being incorporated into the EU regulatory framework as part of a weight of evidence approach to evaluating the toxicity of substances sold in the EU.

Fish embryo test protocol: The fish embryo test is based on the same principle as the fish test. Newly fertilized eggs are exposed to a test substance for a period of 96 hours and the concentration of substance sufficient for killing half the embryos by the end of this period is determined. However, the procedure for determining when the fish embryo has died involves examining the fish embryos every 24 hours for up to four signs of lethality, including lack of heartbeat.

Comparing the California fish test and OECD fish embryo tests: In Europe, the fish test is performed on zebra fish, a species native to the Himalaya region that is ubiquitous in scientific research, including in California, but does not seem to be used at the federal or state level for toxicity testing. The embryo fish test described in the OECD 236 test was developed for zebra fish embryos and likely cannot be applied directly to minnows. However, given the fact that the results of any aquatic toxicity test are not intended to be predictive of toxicity only of a single species, as described in DTSC’s statement of reasons, this does not seem to be a fatal flaw.

Next, consider the difference between testing on fish embryos as opposed to mature fish. Over the course of an organism’s lifetime, its susceptibility to various toxins may increase or decrease. Lead provides a well-known example of this in humans; children are more adversely affected by lead than adults. However, studies have found a good correlation and similar sensitivity between the results of the fish embryo and adult fish tests, though, at least in zebrafish, the fish embryo may be slightly less sensitive.

The daphnid test: Daphnids are tiny invertebrate animals less than 5 millimeters long that are commonly called "water fleas" because of their bug-like appearance under magnification. They are an essential part of the food web in freshwater environments. Acute aquatic toxicity can be measured for species other than fish, and the US EPA acute toxicity whole effluent testing methods, adopted in 2002 and used in California, provide test methods for several daphnid species along with those for minnow, shiners, and trout. If used for hazardous waste identification, both the fish embryo test and the daphnid test may need to be adapted to work with the wide range of types of waste, some of which do not lend themselves for standard toxicity testing. Adopting a daphnid test as an optional alternative would have the advantage of avoiding testing on vertebrate species all together and building off of methods already widely used in the State. Animal deaths, burdens on businesses committed to avoiding animal testing, and over-classification of hazardous waste could be avoided with the adoption of the fish embryo test or daphnid test as an optional alternative to the fish test.

Daphnid

Considerations: It is unclear to the Committee how conflicting acute aquatic toxicity test results would be handled under current regulation, for example, if a waste passes when tested on minnows but fails when tested on trout. As the bill moves forward, the author may wish to investigate this point, and, if there is not a clear procedure for resolving potential differences, consider clarifying this point.

The author may also consider further clarifying what it means for DTSC to "adapt as appropriate" for hazardous waste identification, clarifying the tests DTSC should consider within the US EPA whole effluent testing methods "Methods for Measuring the Acute Toxicity of Effluents and Receiving Waters to Freshwater and Marine Organisms Fifth Edition," published in October 2002, and ensuring DTSC has the flexibility to keep its methods current as the OECD and EPA may be updated over time.

Related legislation:

SB 1249 (Galgiani). This bill would make it unlawful, after January 1, 2020, for a manufacturer to knowingly import for profit, sell at retail, or offer for promotional purposes at retail, any cosmetic if the final product or any component thereof was tested on animals for any purpose. This bill is set for hearing in Senate Judiciary Committee on April 24, 2018.

REGISTERED SUPPORT / OPPOSITION:

Support

Social Compassion in Legislation (Sponsor)

Physicians Committee for Responsible Medicine (Sponsor)

California Chamber of Commerce

The Humane Society of the United States

Personal Care Products Council

PETA International Science Consortium

1 Individual

Opposition

None on record

Analysis Prepared by: Amy Gilson / E.S. & T.M. /