USEPA Upholds Penalty for Hazardous Waste Violations at Virginia Chemical Distributor
According to a News Release dated February 19, 2015, on the USEPA Newsroom website, USEPA’s Environmental Appeals Board (EAB) upheld the results of a hazardous waste storage USEPA enforcement action initiated in 2011. The USEPA enforcement action involved hazardous waste storage that was initiated against Chem-Solv, Inc. and Austin Holdings-VA, LLC, the operator and owner of a chemical blending and distribution facility in Roanoke, Virginia. USEPA’s original complaint cited violations of the Resource Conservation and Recovery Act (RCRA) by Chem-Solv Inc. Chem-Solv and Austin Holdings-VA handle and distribute various chemicals, including alcohols, acids, caustics, mineral oils, surfactants, glycols and solvents.
The EAB in a January 26 Final Decision and Order upheld the 2014 Initial Decision made by USEPA Chief Administrative Law Judge (ALJ), and ordered those cited to pay the full $612,338.78 civil penalty. In a 2014 appeal, Chem-Solv questioned the ALJ’s determination that:
- The company had impermissibly operated a hazardous waste storage tank regulated under RCRA
- A leaking chemical drum contained a solid waste rather than a useful product
- The company failed to make required hazardous waste determinations for materials in the storage tank and for certain aerosol paint cans
- Whether the ALJ demonstrated bias against the Chem-Solv in the underlying decision.
However, the EAB said the ALJ’s Initial Decision was “supported by a preponderance of the evidence” and allegations of bias were “without merit.” The EAB ordered full payment of the penalty within 30 days and compliance with applicable RCRA hazardous waste tank closure requirements.
In our experience, these are common missteps made by transporters (transfer facilities), and small and large quantify generators of hazardous waste. The operation of a hazardous waste storage tank is self-explanatory; however, the requirement for waste determinations is often not fully understood.
All generators of solid waste must determine if that waste is a hazardous waste in accordance with 40 CFR 262.11, or state-equivalent requirement. The most common problems resulting in a violation of this rule include:
- Only evaluating the waste by testing for the three characteristics of hazardous waste (ignitability, corrosivity, and toxicity. §262.11 outlines the steps for making a hazardous waste determination. Prior to determining if a waste is characteristically hazardous, you must first determine if the waste is excluded and whether it is listed in Subpart D of §261.
- Not properly documenting the determination. This determination can be made by testing the waste, using knowledge of the process generating waste, or a combination of both, but regardless, should be comprehensive and well documented.
- Failing to properly identify all hazardous waste generated at the facility. Many solid waste streams at facilities tend to be overlooked as hazardous wastes:
- The solid waste usually does not resemble what one would think a hazardous waste looks like wastes that are not a liquid chemical waste, such as rags, absorbents, or filters
- Wastes that are not directly generated in manufacturing process (e.g., universal wastes, computers, electronics, antifreeze, or sludge in drains or sumps near loading/unloading areas)
- Wastes that are newly regulated (e.g., electronics)
- Wastes that are similar to household hazardous wastes (e.g., mercury thermometers, aerosol cans, batteries, lighting fixtures, and fluorescent lamps).
How can EHS Support help?
EHS Support can help you inventory and understand your solid waste. Our RCRA experts specialize in assisting with hazardous waste determinations and other generator and disposal/recycling company needs.