Manage the Risks and Liabilities of Reusing Spent Foundry Materials.

By analyzing your spent materials and researching a potential beneficial reuse site, you may avoid pitfalls that could turn disposal cost savings into cleanup nightmares.

Beneficial reuse of spent foundry materials typically is a win-win situation. Foundries gain an inexpensive alternative to disposal, and the reuse site receives a low-cost fill material to improve the property. State regulators also favor reuse because it diverts a large volume of solid waste away from landfills, conserving their limited capacity.

Because spent foundry sand is composed primarily of natural materials (chemical binders added to the sand essentially are burned off during the molten metal pour), it is well-suited for beneficial reuse. Some of the spent sand can be reclaimed and reused within the foundry. The rest must be shipped of offsite for beneficial use or disposal. Foundries often look for opportunities to divert this large-volume waste stream for beneficial reuse to avoid disposal costs.

However, recent legal and regulatory developments increase the risks for foundry operators who send their spent materials off-site for beneficial reuse.

Consider the following scenario: you have been asked to supply your spent foundry sand to assist in the construction of a local park. The sand will be used to fill low-lying areas and as a construction base for trails, roads and parking lots. This opportunity is being promoted by local officials looking for an inexpensive material to improve the property, and state solid waste officials have approved the use of foundry sand for these purposes. You have the chance to save money on tipping fees at landfills and on transportation costs, while doing a favor for local elected officials and improving the community park.

What, you may ask, could possibly be wrong with a project that seems so right from so many different perspectives? Until the foundry operator knows more about the spent foundry material and more about the reuse site, the risks far outweigh the benefits of this project. Some foundries face millions of dollars in cleanup costs because they supplied sand to sites that became the target of cleanup orders. This article evaluates these liability risks, which can be reduced and managed by researching the spent materials and their reuse destination.

Targeted for Enforcement

In February, the U.S. EPA targeted the foundry industry's hazardous waste management as an enforcement priority. Regional EPA surveys of foundry practices revealed that 71% of the foundries had potential violations of hazardous waste management regulations for waste characterization, storage and disposal.

One of the target areas is the improper characterization of spent foundry wastes as non-hazardous. EPA identified foundries that improperly mixed hazardous baghouse dust with sand and sent the material off-site as a non-hazardous solid waste. If the baghouse dust is itself a hazardous waste, then mixing it with foundry sand renders the entire waste stream hazardous, and it must be managed, stored, transported and disposed of in accordance with hazardous waste management standards under the Resource Conservation and Recovery Act (RCRA). Foundry sand also maybe characteristically hazardous on its own, based on metals content, particularly when the metal cast contains lead. Over the next 18 months, EPA will audit the documentation that foundries must retain in their files to justify their characterization of wastes as hazardous or non-hazardous.

If the foundry sand provided in our scenario to assist in the construction of a city park is found later to be a hazardous waste, the beneficial reuse area is an illegal disposal site. The foundry operator, who generously transported spent sand at the request of local elected officials to benefit the construction of a park, could be liable for the costs of implementing a corrective action to clean the area to acceptable standards.

The liability risks for mischaracterized spent materials may extend beyond the costs of cleanup. In addition to potential violations for improper storage and labeling at the foundry, EPA may seek penalties for transportation without a detailed manifest to the beneficial reuse site. EPA's policy increases penalties for violations that create a risk of harm to the public. Therefore, EPA may seek higher penalties as a result of improperly characterized waste used in a city park.

The foundry that sent sand to the city park also may face severe adverse publicity. The local elected officials, who so willingly accepted and encouraged the reuse of your sand at their park when it was a solid waste, may quickly become your enemy when the sand is determined to be a hazardous waste. In turn, this may generate lawsuits that attempt to blame the hazardous waste discovered at the park for previously unexplained injuries. Regardless how frivolous or unwarranted such claims may be, the legal and reputation costs can be devastating.

The good news is that this parade of "horribles" can be avoided by investing in the proper characterization and management of spent materials and by using this information to determine what waste streams are appropriate for a reuse project.

There is a second legal development that elevates liability risks for foundries, even when the waste stream targeted for reuse is non-hazardous.

Liability For Cleanup

In March, a federal District Court in Northern Indiana held a foundry liable under the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA) for spent foundry sand provided as a fill and cover material. The foundry now has entered the second phase of trial at which the court will decide how to allocate nearly $40 million in cleanup costs at the site. The facts of this case should be a wakeup call for foundries that routinely send their solid waste materials off-site for beneficial reuse without investigating the site.

The large steel foundry had hired a solid waste hauler to remove spent sand from the foundry, and the waste hauler was responsible for finding sites where the sand could be dumped. The foundry requested prior notice of each site and some assurance from the hauling company that the site was appropriate for the deposit of foundry sand.

In 1976, the hauler received a call from a person with an urgent need for a large amount of foundry sand. The caller was under orders from the State of Indiana to clean a site that he had used for liquid industrial waste disposal. The order required that he remove all drums and tanks, neutralize the remaining liquids and cover the site with an inert solid material. The state inspector overseeing the project considered the sand inert and appropriate for use at the site based on previous samples of this foundry sand that he had analyzed for waste characterization purposes.

After the foundry sand was being hauled to the site, another state agency required that the sand be tested again. Trace levels of phenol and furan were detected but well below levels of concern. The sand received written approval from two state agencies to be used at the site as the inert fill and cover material required by the state order.

EPA ordered an extensive cleanup of the site, and a group of companies that arranged for liquid wastes to be disposed at the site conducted the cleanup. These companies then sued other companies who were connected to this site to obtain contributions toward the cleanup costs. The foundry owner was one of the companies sued.

Under CERCLA, liability is established if the material sent to the cleanup site contained any amount of a hazardous substance found at the site. Therefore, the trace levels detected in the laboratory report used by the state to approve foundry sand for use were deemed sufficient evidence to establish the foundry's CERCLA liability. While the foundry insisted that it should be exempt from liability as it was assisting the state's remedy, the court held that the state involvement in choosing and directing the use of sand at the site was insufficient to warrant an exemption. The foundry was held liable for sending state-approved foundry sand to assist a state-directed response action at a site where millions of gallons of liquid hazardous wastes had been indiscriminately dumped.

The foundry has not received a decision on how much of the cleanup cost it will be ordered to pay. However, the litigation costs alone far outweigh any economic benefit the foundry may have received from sending sand to this site for reuse.

The foundry in our example faces a similar risk, because it does not know the history of the site for the city park. Abandoned properties in urban areas often have histories that include the release of some hazardous substances. Hazardous substances may be discovered after the sand is in place, when digging for construction of buildings or the installation of utilities for the park. Any hazardous substance detected in the sand can become the basis for CERCLA liability, and the foundry could be forced to pay a share of the cleanup costs.

The best way to avoid liability is to avoid beneficial reuse sites where hazardous substances are present or are likely to be present. This is not an easy task. Site assessments may not eliminate the risk entirely, but they should screen out the worst sites from consideration. Also, there is a CERCLA exemption for rendering assistance as part of the remedy at a hazardous waste site. This may shield foundries from liability for supplying sand, if the state or federal agency in charge of the cleanup expressly and directly contracts for the sand to be brought to the site as part of a remedy being conducted in accordance with federal guidance.

Additional protection can be gained from agency approvals, written releases, and indemnification agreements.

Characterizing Spent Material

Foundry sand separated from the castings is considered by EPA to be a solid waste under RCRA. Such waste, if determined to be hazardous and "recycled" (material that is used, reused or reclaimed), requires foundries to disclose their hazardous waste activity and comply with certain RCRA treatment, storage and disposal requirements. EPA claims that 85% of foundries are subject to regulation and 71% of them are out of compliance. While this rate of noncompliance is disputed by the foundry industry, the attention of regulators should provide an incentive to revisit waste characterization documentation.

Accordingly, foundries should maintain detailed and accurately documented knowledge of spent materials. Due to differences in the industry, a specific evaluation of a particular foundry's materials, processes and practices is needed to adequately characterize the spent materials and arrive at the best end-use opportunity. The following waste characterization and analysis outline can guide this process:

1 Select a representative sample of the spent foundry sand. Rather than a one-time "grab" sample, take samples over a period of time. Written documentation should include: sample time, date, location, the person taking the sample, and a description of the sample and how it was taken.

2 Develop a testing program. Many states list the constituents for which sand must be analyzed to be approved for reuse. Another source of information is the foundry's material safety data sheets that apply to the spent sand components.

3 Conduct testing through a recognized, certified analytical laboratory.

4 Compare test results with appropriate state/federal/local criteria and regulations for beneficial reuse.

5 Meet with applicable agencies to solicit approval for beneficial reuse of this spent sand. Be sure to obtain written documentation from these agencies indicating their approval.

6 Develop an organized file to document the foundry waste characterization. This documentation maybe essential to successfully avoid liability.

In addition to knowing their spent material, foundries should familiarize themselves with the quality of the virgin material that otherwise would be used. Spent material should have equal or superior physical properties to the virgin material to minimize future construction problems. In evaluating spent sand, foundries should compare fineness, compactibility and other related properties against those of the virgin material. Results of these tests should be documented and recorded.

When possible, foundries also should obtain written governmental approval that the spent material has appropriate physical and chemical properties for the reuse application. The foundry would benefit from a written agency finding that the sand has been properly characterized as a non-hazardous solid waste and that it has appropriate physical characteristics for the reuse application. Also, the foundry can build its case for a CERCLA exemption by receiving a written statement that the sand "does not contain a harmful quantity of any hazardous substance."

Characterizing the Reuse Site

The reuse site should be evaluated in two respects: historic industrial uses and expected future uses.

The first step in characterizing the reuse site is a Phase 1 site assessment. Phase 1 evaluates available information pertaining to historic uses of the specific property. For most development projects, particularly those involving bank financing, a Phase 1 will be conducted by the developer to satisfy lenders. Therefore, the foundry should request a copy of the Phase 1 before agreeing to supply sand to the site. If a Phase 1 has not been done, consider investing in one. A few thousand dollars invested now could screen out contaminated sites that could become a beneficial reuse nightmare later.

If contamination is discovered, the foundry should proceed with beneficial reuse only with liability protection. Depending on the severity of the contamination, the protection may take several forms. If the state or federal government is involved in the beneficial reuse project, the foundry gains the greatest protection by entering a contract with the government agency to supplys and as a material supplier. The liability protections for contractors are more developed than are those for persons "rendering assistance" without a contract. The agency also may provide some liability protection by sampling and testing the sand for all expected constituents, and by issuing a written approval that the sand is suitable for its intended use.

Contracts also may be entered with the property owner or the developer to shift responsibility for CERCLA liability. For instance, the site owner may agree to defend and indemnify the material supplier for any hazardous substance cleanup costs that may be incurred on the property. As with all indemnities, however, it provides protection only as long as the person providing the indemnification can satisfy the liability. Therefore, if the property owner's only asset is the property itself, the contractual liability protection is virtually worthless. On the other hand, if the indemnification comes from a large developer, the protection is more likely to be there when needed.

A site may be inappropriate for beneficial reuse based on current or future uses of the site. For instance, foundry sand may be desirable for drainage areas at landfills. If the landfill operator fails to properly manage and close the site, all parties adding any amount of a hazardous substance may be forced to contribute to the cleanup costs under CERCLA. A contractual indemnity would work only if the landfill operator remained viable. Landfill sites generally are risky for beneficial reuse without sound liability protection from a viable landfill operator.

A site also may be inappropriate for reuse if it is near significant exposure pathways. Avoid pathways such as groundwater wells, recreational surface water, and high-traffic or high-wind areas. Dermal or ingestion pathways can be minimized by choosing reuse opportunities that will be capped or covered. Spent materials are good candidates for road bed construction because the road provides a cap over the materials. Foundries also should verify that the site will have a buffer zone between the reuse area and sensitive receptors, like schools.

The developer also may be a factor in screening out potential sites. In the court case discussed, the foundry allowed the hauler to make the direct contact with the site operator. The foundry relied on the state's involvement with the site. This proved to be a costly decision. If the foundry had insisted on seeing the site where the sand was being used, it would have seen a site littered with drums and tanks with evidence of hazardous liquid wastes on the ground. In hindsight, this would have been a good site to screen out and decline as a reuse opportunity.

Follow a Reuse Checklist

Increased EPA enforcement pressure suggests that foundries should be making informed conservative choices about when and how sand is reused. Because each foundry retains future liability for its waste materials, foundries should examine the following checklist to minimize liability exposure before providing spent materials for beneficial reuse:

* properly characterize the spent material's chemical and physical properties;

* compare spent material properties to virgin material that would be used;

* document governmental direction and approval of beneficial reuse activities;

* obtain indemnification agreements in exchange for supplying the spent material;

* choose projects that will cover or cap the spent material after its appointed use and that will create a buffer zone between the project site and sensitive receptors;

* acquire a Phase One assessment and other information needed for a detailed understanding of the parcel where the spent material will be deposited;

* verify the developer/contractor's reliability and viability;

* document and retain all in formation in an organized and accessible file.