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The Million-Dollar Mislabel

In June 2003, the US Environmental Protection Agency surprised Plymouth State University in New Hampshire with a routine inspection of how their labs were managing chemical waste.

By | April 11, 2005

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In June 2003, the US Environmental Protection Agency surprised Plymouth State University in New Hampshire with a routine inspection of how their labs were managing chemical waste. The inspectors found cardboard boxes filled with different chemicals in high-traffic areas, a potential hazard should one chemical react in a dangerous way with another. As the inspectors were briefing school officials about their concerns, they heard an alarm: One of the boxes had started smoking when a construction worker bumped it, causing chemicals to leak. The area was evacuated, the fire department was called; no one was hurt. The proposed fine levied by the EPA, which first went public with the incident in March: $171,050.

Unfortunately, this is not an isolated incident. Schools across the United States are facing hefty penalties, the result of missteps by research laboratories in handling the hundreds of thousands of tiny chemical containers that are the detritus of past experiments, graduate students, and postdocs.

The EPA monitors these materials under the auspices of the Resource Conservation and Recovery Act (RCRA), which regulates hazardous waste. Critics say, however, that although RCRA has the right intentions, it was designed with large-scale chemical industries in mind, and as a result, the law is too cumbersome and inflexible for the realities of academic research labs. Yet academics are paying the price: In recent years, lapses in record keeping and storage protocol have cost schools across the country millions of dollars in fines.

In 2001, for instance, the Massachusetts Institute of Technology was fined $400,000 for a series of procedural violations, none of which, the EPA agreed, caused any environmental damage. Russell Phifer, chair of the division of chemical health and safety at the American Chemical Society, estimates that less than 5% of EPA fines stem from violations that posed any potential harm to human health or the environment.

The EPA says RCRA's purpose is to eliminate all threat of harm, and while fines for mislabeling may seem unfair, mislabeling can be a problem if an accident occurs and a firefighter can't understand what's written on a bottle. But should the fine have such a big price tag? In an age of struggling school budgets, meeting the EPA's stringent requirements has become a "major burden," says Emmett Barkley, director of laboratory safety at the Howard Hughes Medical Institute, Chevy Chase, Md. "The regulations are a bad fit for academic institutions."

Nevertheless, so long as the law is in force, institutions must deal with its regulations and consequences. Different schools are trying different measures to reduce their fines, and many agree that the system, as it stands, is unsustainable. "There are a lot of people getting hammered," says James A. Kaufman, president and CEO of the Laboratory Safety Institute in Natick, Mass.

WRESTLING WITH REGULATIONS

RCRA was created in 1976 out of the EPA's Office of Solid Waste. Its intent is to regulate the generation, transportation, treatment, storage, and disposal of hazardous waste. Animal, radioactive, and medical wastes are managed under different federal agencies and state laws.

Peggy Bagnoli, EPA's sector strategy liaison for colleges and universities, says RCRA was designed with large-scale industries in mind because they produce the vast majority of chemical waste in this country. But safety experts cite numerous occasions when what works for industry doesn't work for research labs, which generate very different types and volumes of waste. Industry typically has large quantities of a few chemicals, while academic labs often have drops of hundreds of different chemicals. Consequently, some of the rules about labeling and dealing with chemicals leftover from previous experiments, for instance, make little sense in research labs, they argue. It can thus be "very difficult" for labs to follow RCRA to the letter, Bagnoli says.

<p>Recent EPA-levied Fines for RCRA Violations</p>

A small college laboratory that wants to dispose of 1 kg of sodium cyanide, for example, is regulated the same way as a big producer, which might generate dozens of drums full of the same material, says Phifer. That means the smaller lab may need an emergency response plan, elaborate paperwork to track each stage of disposal, and extensive communication systems in storage areas. All of these can stretch a small school's budget, when doing less would be equally safe, he notes. "The cost per unit [of waste] that labs pay is by far higher than any other industry," Phifer says. Compounding the problem, academic labs might have hundreds of chemicals in need of disposal, all of which fall under the RCRA.

At the University of Vermont (UVM) in Burlington, for instance, 40% of laboratory waste is organic solvents, such as acetone, which are flammable. Another 40% is inorganic acid, such as hydrochloric acid, which can burn the skin. The rest is toxic and miscellaneous chemicals, according to Ralph Stuart, Environmental Safety Manager at UVM. The school produced 46,246 pounds of lab waste in 2003.

In some cases, the rules are almost impossible for research labs to follow, says Stuart, such as when the specific wording that's required doesn't fit on the containers used to store small amounts of research chemicals. Labeling fines are commonplace, such as the $800,000 slap the University of Rhode Island received due, in part, to labeling issues. Some schools may use the chemical symbol to identify waste, which all lab workers will understand, but federal regulations require more information, such as the nature of any potential hazards.

An EPA spokesperson who manages inspectors in the New England region says there's nothing harmless about a school putting its own labels on storage containers. If a researcher writes "MeOH" on a bottle to indicate methanol, that's fine for them, but not fine if a local fire department arrives and doesn't know what that means, he says. "You're actually putting people at risk." From his perspective, schools are not doing a good job of lab safety on their own. "We have found violations at the majority of the campuses that we've gone to," he says, more so than at larger producers of waste.

Many schools also have been fined when they didn't dispose of tiny amounts of hundreds of chemicals inherited from previous researchers who are no longer working at the lab, says Bagnoli. If left too long, chemicals can become unstable and explode. It's easy for industrial producers to determine when gallons of a chemical are no longer needed, but these so-called "dusty bottles" are a common feature of academic labs, Bagnoli says, where constant turnover makes it difficult to know when leftover chemicals become waste.

Once a container is considered waste, it must be tracked until it is eliminated, says Stuart. This requires paperwork detailing when it was shipped and received by a treatment, storage, or disposal facility. When you have hundreds of small containers of chemicals, it's "not doable to track each one," he says.

Part of the problem derives from academic frugality. What a professor calls a leftover chemical that may one day come in handy, an inspector may call improperly managed hazardous waste, says Phifer. Most of what the EPA calls serious fines stem from schools storing materials too long, the vast majority of which pose no danger to human health or the environment, he adds – at least, no danger "that [equates] to these fines."

However, another EPA official, who also requested anonymity, says she doesn't agree that RCRA's system doesn't work for research labs. "They are generating waste, they have an obligation under RCRA to manage the waste appropriately," she says. The EPA spokesperson who manages inspectors in New England agrees. "The goal of RCRA is preventative," he says, to make sure there isn't even the slightest potential for an accident. "The size of the lab hasn't been a function of how safe something is," he says.

GETTING RID OF WASTE PROBLEMS

To mitigate the big bills schools receive from inspections, they have the option of putting some of the money they would spend on fines into supplemental environmental projects, designed to benefit the community near the university. One such project is the Campus Consortium for Environmental Excellence Web site http://www.c2e2.org that Massachusetts Institute of Technology created to help schools comply with EPA regulations. In another project, the University of New Hampshire created a software program that tracks chemical disposals on campuses.

Other institutions have managed to avoid hefty fines by performing self-audits. In January, the EPA signed a self-audit agreement with the state of Pennsylvania, to increase compliance of schools in that state with EPA rules. The unnamed EPA official says the agency actively encourages schools to audit themselves. The schools check how they're handling waste, report any lapses to the EPA, correct the lapses, and show what they accomplished. The system enables the government to partner with universities, she notes. "I think the audit policy is great, actually."

At the University of California, Irvine, Environmental Health and Safety director Marc Gomez says Irvine and other UC schools avoided hefty fines after an EPA inspector visited the campuses and found many violations, including mislabeled containers. The entire audit was "very time consuming," Gomez says, and cost the UC system an estimated $1.78 million and 23,645 staff hours since 2001. But in the end, the UC system paid less than $10,000 in fines after the EPA found 98 violations. "It's a win-win situation," Gomez notes.

Reduce your risk of $5,000-plus fines from the EPA

• Use a separate container for waste collection

• Use rust-free collection drums

• Open waste-collection containers only when you are adding or removing waste material

• Make sure labels on waste containers are always visible

• Leave 10% extra room in waste containers for expansion

• When waste containers fill up, get them out of labs within three days

• Hazardous materials should be marked "hazardous waste," list the contents, and explain why they're hazardous

• Conduct training once per year, and document training

• Post 24-hour emergency contacts

Source: Laboratory Safety Institute

Stuart and his colleagues at other New England institutions are in the final stages of collecting data from Project XL, which aims to design new waste management rules that would work better for research laboratories than the rules currently in use. Early results show that the project helps people understand who's responsible for waste; indeed, UVM's score in audits has steadily increased year after year, going from 3 to 5, to 7.5 out of 11, Stuart says. The EPA inspection manager for New England says he will support XL if it works. "If project XL will get the same level of protection ... then I'm for moving into the 21st century," he says.

More schools are also moving towards a system where faculty are personally accountable for their violations when disposing of laboratory waste, says the Laboratory Safety Institute's Kaufman, who advocates such an approach. If the institution has clearly trained its workers, and they have signed an agreement saying they understand and agree to follow the rules, why can't professors' grant or personal money be used to pay fines, he reasons. With price tags of thousands of dollars, this is a compelling incentive, Kaufman adds. "When you make people personally responsible, maybe they'll pay more attention to it."

INTERNATIONAL MANAGEMENT EFFORTS

Margaret-Ann Armour, assistant chair of the chemistry department at the University of Alberta in Edmonton, says Canadian schools have largely sidestepped the big fines US institutions face when trying to comply with government regulations that aren't always compatible with small generators. After attending meetings in the United States in which she heard about how much trouble schools were having with the government, she and her colleagues "did our best" to work with the Canadian government to design rules that fit both big producers and research laboratories. "So we have not had the kinds of fines that have been levied in the US," says Armour, author of Hazardous Laboratory Chemicals Disposal Guide (CRC Press).

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The result is the Workplace Hazardous Materials Information System, which she says works well in Canadian research labs. And if inspectors find violations, the government focuses on true safety hazards, Armour notes. If schools make a "good case" that violations found during inspections do not affect safety, they are not fined, she says. Cultural differences may also explain things, she says: Canadians are less litigious and thus less likely to impose huge fines.

Armour notes that in Canada, many researchers use additional chemicals to transform hazardous materials into harmless compounds that can be easily discarded. US researchers can often use elementary neutralization in the lab, but they need permits (which cost millions of dollars) for most other types of reactions, says Phifer.

In Germany, European agencies are also somewhat more lenient on laboratory chemical waste, says Thomas Brock, head of the Department of Chemical and Biological Hazards at the Institution for Statutory Accident Insurance and Prevention for the Chemical Industry in Heidelberg, Germany. There, when inspectors find safety or waste management violations, they work with schools to improve their compliance, Brock notes. Schools will be fined only if they continue to be noncompliant, he says, but the fines hardly ever amount to more than $10,000. "Very seldom are there fines for violations."

The ACS's Phifer says he has been trying for nearly a quarter century to modify RCRA for research labs, by writing separate regulations, meeting with Senate staff, and talking to the EPA, but nothing significant has changed. Every time, he says he is told that research labs produce less than one-tenth of 1% of all hazardous waste and are consequently not a priority. "We have been 100% unsuccessful."

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