In re: Chem-Solv, Inc., Formerly Trading as Chemicals and Solvents, Inc. and Austin Holdings-Va, LLC

Chem-Solv, Inc. (Chem-Solv) (plaintiff) operated a chemical blending and distribution facility in Roanoke. Chem-Solv used a small area of the facility known as the acid pad to repackage and blend materials from bulk storage tanks. Drums on the acid pad were filled with chemicals, then lines from the bulk tanks were flushed to a drain on the floor of the acid pad. The liquids were collected in a 1,900-gallon subgrade pit tank. Chem-Solv used the liquid from the pit tank to wash the outside of filled drums on the acid pad to remove chemical residues, dirt, and debris, and the runoff would also flow into the pit tank. When the liquid in the pit tank reached a certain level, Chem-Solv would pump the liquid into a nearby storage tank. In 2011, the Environmental Protection Agency (EPA) filed a complaint alleging that Chem-Solv failed to perform hazardous-waste determinations on the pit water and pit sludge as required by the EPA’s regulations 40 C.F.R. § 262.11. Chem-Solv asserted that it had performed the required waste determinations for the pit water and pit sludge by using generator knowledge to conclude the materials were not hazardous. Chem-Solv did not provide any documentation establishing that it conducted a waste determination. The administrative-law judge (ALJ) held that Chem-Solv failed to perform the hazardous-waste material determinations. Chem-Solv appealed.