Does the potential legal liability outweigh the benefits of HHW reuse?
By David Nightingale, CHMM, S.C.
State and Local governments are often seen as entities with deep pockets and good targets for opportunistic lawsuits. Reducing potential exposure to legal action is generally a good idea. In the same light, implementing the preferrable waste management planning hierarchy, with reduce and reuse at the top of the preferred list, is also a worthy resource conservation as well as an operating cost reduction strategy. A topic that straddles these two policy objectives, promotes waste reuse and reduces threats of legal liability, are embodied in the question of whether local and state programs should offer household hazardous wastes to the public for reuse. Does the potential for legal action outweigh the benefits of waste reuse?
Local Experience
At the state level, the Washington State Dept. of Ecology recently published a best practices guidance document, which encourages the HHW Reuse.1 On the other hand, Illinois EPA supports HHW through interlocal governmental agreements where the state pays for managing the disposal and recycling of HHW. One of the reported provisions of that Illinois agreement is that the local programs are forbidden to offer HHW reuse to the public. Looking at the level of HHW infrastructure, Washington has more than 50 permanent HHW collection facilities to serve their 39 counties whereas Illinois has a half dozen permanent HHW collection facilities to serve their 102 counties. The difference in these two state approaches to HHW reuse might be partly related to different levels of experience between these states.
Looking to the local experience with HHW reuse, I used two national and two regional list serves to survey the reality of liability from solid waste system operators. In late June, I asked subscribers to those lists to reply with one of three simple statements as follows:
鈥淧lease answer either 1), 2) or 3) as follows:
1) 鈥淥ur HHW reuse program has been operating for X years and have had no threats or actual liability issues from the public participation.鈥�
OR
2) 鈥淥ur HHW reuse program has been operating for X years and have had one or more threats or actual liability issues from the public participation.鈥�
OR
3) 鈥淥ur HHW program does NOT offer HHW reuse options for the public.鈥�
The response was quick and broad across the U.S. as shown by the survey response map in Figure 1. Sixty-one responses were received; 38 programs indicated that they had public HHW reuse programs, while 23 indicated that they did not have HHW reuse for the public.
Of the 23 local programs that said they did not have HHW reuse program, a few were planning for or considering implementation of HHW reuse. A few other responses stated that they do not offer reuse due to liability concerns. Others would like to have HHW reuse but their facilities cannot accommodate the additional space required. There were also a few programs that allowed internal government organizations or local staff to reuse certain reusable HHW materials. These internal HHW reuse responses were assigned survey response #3, because the HHW reuse was not available to the general public.
For the 38 HHW reuse programs the average tenure of those programs was 20.7 years. Those HHW reuse programs encompass 788 operating years across many states. Every one of the 38 HHW reuse programs replied with response #1, they have had no threats or actual liability issues from the public participation in HHW reuse. The one reported legal settlement in any way associated with an HHW reuse program was a payment for a customer fall caused by an uneven walking surface, not related to the fact that they were at the reuse area nor a problem with a reused hazardous material. That HHW reuse program has been operating for 28 years. Figure 2, shows the survey response distribution of years of operations for the public HHW reuse programs.
The Impact of Reuse Programs
These survey findings should encourage more programs to seriously consider public HHW reuse programs. A number of responders indicated that the HHW reuse program was very popular and that the public loved the HHW reuse opportunity. In addition to the canned responses, some programs provided some interesting information regarding the impact of their reuse programs.
鈥� Central Contra Costa Sanitary District, CA reported having sent 9.3 million pounds of HHW reuse products in their 28 years of operation.
鈥� Flagstaff, AZ reported diverting 20 percent of the HHW that they take in, 鈥渞esidents love it, and it helps out a lot of lower income people and folks on the reservations. Plus, it saves us processing and disposal costs!鈥�
鈥� Dakota County, MN reported that in 2024 they gave away 415,520 lbs. of product to residents.
鈥� Mesa, AZ said that 33 percent of the traditional HHW collected goes to their reuse Swap Shop.
The cost per ton of HHW collection programs is high compared to most other categories of solid waste. HHW disposal and recycling costs are often about half of HHW operating costs. So, by removing 20 to 33 percent of the cost to manage HHW through vendor disposal and recycling contracts means saving around 10 to 16 percent of total HHW operating costs. This significant savings could provide more convenient HHW management through more open hours without impact to the operating budget or other uses of saved operating dollars (see Figure 3).
The WA Dept. of Ecology best practices factsheet included a summary of key reasons to implement HHW reuse, referred to in Washington as 鈥淢oderate Risk Waste鈥� reuse: 鈥淩euse centers are an excellent way to reduce costs for Moderate Risk Waste (MRW) facilities and foster practices that are good for the environment. They minimize waste by giving hazardous materials a second life. When people learn they can get leftover hazardous materials for free, they鈥檙e more likely to drop off their unwanted materials at the same location. This increases proper disposal and reuse, leading to less waste. A well-run reuse center, paired with effective public education, can keep hazardous waste off the tipping floor, ensure proper handling by trained staff, and create reuse opportunities.鈥�
Benefits of Public HHW Reuse Programs
While it is impossible to prevent any or all potential lawsuits, there seems to be good evidence that HHW reuse programs are not prone to such downsides. There is also anecdotal evidence that HHW reuse provides a brand enhancement, as they are very popular. Of course, being judicious about only offering well-screened products back to the public, creating a customer liability waiver, and other operating policies that reduce potential problems are prudent actions. The benefits of enhanced public image, reduced operating costs, and lack of expected legal action associate with public HHW reuse programs appears clear. If you are on the fence, this may help you decide that your operation will implement HHW reuse. | WA
David Nightingale is the Principal at Special Waste Associates. Special Waste Associates assists communities developing or upgrading HHW collection infrastructure and operations. He currently serves on the North American Hazardous Materials Management Association (www.NAHMMA.org) Board of Directors. You can reach David at (360) 259-6497 or e-mail聽Dave@SpecialWasteAssoc.com.
Note
1. Moderate Risk Waste Reuse Centers. https://apps.ecology.wa.gov/publications/SummaryPages/2507014.html