## Facts

- Chem-Solv, Inc. operated a chemical blending and distribution facility in Roanoke, Virginia; Austin Holdings-VA, LLC owned the property.
- The facility used an “acid pad” to fill drums from bulk tanks and to flush transfer lines; liquids drained to a floor drain.
- The drained liquids were collected in a 1,900-gallon subgrade pit tank, creating a liquid waste stream (“pit water”) and residual accumulations (“pit sludge”).
- Chem-Solv reused pit water to wash the exterior of filled drums; runoff returned to the pit tank, and pit water was periodically pumped to a nearby storage tank.
- EPA Region 3 inspected and alleged that Chem-Solv failed to make required hazardous-waste determinations for pit water and pit sludge under 40 C.F.R. § 262.11.
- Chem-Solv asserted it used “generator knowledge” to conclude the materials were not hazardous, but did not produce contemporaneous documentation or other reliable proof that determinations were performed.

## Issues

1. Whether respondents violated 40 C.F.R. § 262.11 by failing to perform hazardous-waste determinations for pit water and pit sludge.
2. Whether pit water and pit sludge constituted “solid waste” triggering the § 262.11 determination obligation despite asserted reuse and onsite management.
3. What qualifies as sufficient “generator knowledge,” and what proof is required to show compliance when analysis is not performed.
4. Whether the administrative penalty, as assessed by the ALJ under RCRA and EPA’s penalty policy, was proper.

## Decision

- The Environmental Appeals Board affirmed the ALJ’s finding that respondents failed to perform the hazardous-waste determinations required by 40 C.F.R. § 262.11 for pit water and pit sludge.
- The Board held that unsupported assertions of generator knowledge, without documentation or credible, specific evidence of an actual determination process, do not establish compliance.
- The Board concluded that the materials at issue were solid wastes during at least part of their management, requiring a § 262.11 evaluation.
- The Board largely upheld the assessed civil penalty, with any modifications reflecting application of the RCRA Civil Penalty Policy and statutory factors.

## Legal Principles

- 40 C.F.R. § 262.11 imposes an affirmative duty on a generator to determine whether each solid waste is a hazardous waste (listed and/or characteristic).
- A generator may rely on process knowledge in lieu of sampling, but the knowledge must be specific, verifiable, and sufficient to support the hazardous-waste conclusion.
- Compliance requires evidence that the determination was actually made; post hoc litigation positions that a material was “not hazardous” are not a substitute for a timely determination.
- Where EPA shows a waste stream exists without a documented or otherwise substantiated determination, respondents must produce credible evidence of compliance or a valid defense.
- Failure to make required determinations is a serious RCRA violation supporting substantial penalties because it undermines proper hazardous-waste management.

## Conclusion

The EAB held respondents liable for failing to perform and substantiate hazardous-waste determinations for pit water and pit sludge under 40 C.F.R. § 262.11, rejecting conclusory “generator knowledge” claims and largely sustaining the administrative penalty.


In re Chem-Solv, Inc., 16 E.A.D. 594 (EAB 2015)