Perspectives on Liability for Constructive Reuse of High-Volume Waste Streams

Large quantities of high-volume waste streams (HVWS), such as coal combustion by-products (CCBPs) and waste foundry sands (WFS), are landfilled in the United States annually. Waste generators facing increased landfill costs, reduced landfill space, and stringent permitting requirements are pursuing reuse options. Departments of transportation (DOTs) face growing pressure from waste generators, national associations, state legislatures, and the general public to find acceptable reuse applications for HVWS in roadway applications. Research results generally have been favorable toward the geotechnical and construction properties of CCBP and WFS. Furthermore, generators have been willing to provide the waste material to the job site at no cost, in lieu of incurring landfill tipping fees. Many DOTs, including the Indiana DOT (INDOT), have developed special provisions, specifications, and protocols for reusing HVWS. State and federal regulatory agencies typically have classified WFS as a solid waste under the Resource Conservation and Recovery Act (RCRA), while CCBP is excluded from RCRA regulation as a hazardous waste. WFS and CCBP can be excluded from Indiana RCRA solid waste regulation when used as a roadbase material. Despite these promising efforts, DOTs remain reluctant to reuse HVWS because of potential liability, primarily resulting from Superfund. Efforts by the 104th Congress to revise Superfund liability failed to address HVWS. Consequently, INDOT is developing a testing protocol to minimize liability and is considering indemnification clauses, which represent an added cost. Primarily liability issues are discussed here.