LCP Chemicals-New York

Plain-English summary

LCP Chemicals-New York, a division of the Hanlin Group, challenged an EPA Region II hazardous-waste permit for its facility in Onondaga County, New York. LCP argued that the permit incorporated conditions from a state permit, failed to explain changes made after public comment, imposed unauthorized corrective-action obligations, and included deadlines inconsistent with the state permit. The Environmental Appeals Board denied review because LCP did not identify the specific permit conditions at issue or explain why they showed clear legal or factual error. The Board also held that the challenged provisions were lawful, or that some were not permit conditions subject to EAB review.

Decision snapshot

• Cited authorities: 40 C.F.R. §§ 124.17, 124.19, 270.4(a), and 270.41; 42 U.S.C. §§ 6901, 6906(b), 6973(a), 9607(a), and 9607(j).
• Outcome: Review of the RCRA permit was denied.
• Key point: A permit petition must identify the specific conditions being challenged and explain why they contain clear legal or factual error or otherwise warrant review.

Full text (EPA EAB public release)

LCP CHEMICALS—NEW YORK 661
IN THE MATTER OF LCP CHEMICALS—NEW YORK
RCRA Appeal No. 92-25
ORDER DENYING REVIEW
Decided May 5, 1993
Syllabus

LCP Chemicals—New York, a division of the Hanlin Group, Inc. (“LCP”) petitions
for review of a permit issued by Region II pursuant to the 1984 Hazardous and
Solid Waste Amendments (“HSWA”) to the Resource Conservation and Recovery Act
of 1976 (“RCRA”) for LCP’s facility in Onondaga County, New York. The entire RCRA
permit for LCP consists of the HSWA permit and the RCRA permit issued by New
York, which also contains corrective action requirements. LCP’s petition for review
raises four general categories of issues: (1) LCP incorporates by reference all issues
raised in its request under New York law for an adjudicatory hearing on the New
York-issued portion of the permit, and requests review of those conditions in the
HSWA permit that replicate conditions in the New York-issued permit; (2) LCP con-
tends that the Region violated 40 C.F.R. § 124.17 by failing to respond to all comments
made during the public comment period and adding a new condition to the final
permit without explanation in the response to comments, (3) LCP contends that the
Region is without authority to impose certain permit conditions, and (4) LCP contends
that the HSWA permit contains deadlines inconsistent with deadlines in the New
York-issued permit.

Held: Section 124.19 requires a petitioner to provide in its petition for review
an identification of the permit condition in question and a statement as to why
the condition requires review under the standard set forth in § 124.19. LCP failed
to satisfy these procedural requirements with respect to issue categories 1, 2 and
4 above, and review of those issues is therefore denied.

With respect to the issues identified in category 3, LCP’s petition must also
fail. Under § 124.19, a permit ordinarily will not be reviewed unless the petitioner
demonstrates that the permit condition in question is based upon a clear error of
law or fact, or involves an important matter of policy or exercise of discretion warrant-
ing review. To the extent LCP identifies specific permit conditions at issue, LCP
fails to meet this substantive standard. LCP contends that the permit improperly
requires New York’s approval prior to the closure of sewers and structures. Review
of this issue is denied because there is no such statement in the permit, only in
the RCRA Facility Assessment, which is not a permit condition subject to review.
LCP contends that the permit impermissibly allows the Region to impose additional
obligations on the permittee after permit issuance. Because the Region is authorized
to implement corrective action in a phased process, review of this issue is denied.
Finally, LCP contends that the permit impermissibly provides that compliance with

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662 ENVIRONMENTAL ADMINISTRATIVE DECISIONS
the permit does not constitute a defense to actions brought under RCRA §7003,
the Comprehensive Environmental Response, Compensation and Liability Act, or any
other law governing protection of human health and the environment. Because this
permit condition is an accurate statement of the law, review is denied.

Before Environmental Appeals Judges Nancy B. Firestone,
Ronald L. McCallum, and Edward E. Reich.

Opinion of the Board by Judge Firestone:

I. BACKGROUND

LCP Chemicals—New York, a division of the Hanlin Group, Inc.
(“LCP”), has petitioned for review of a permit issued by U.S. EPA
Region II pursuant to the 1984 Hazardous and Solid Waste Amend-
ments (“HSWA”) to the Resource Conservation and Recovery Act of
1976 (“RCRA”), 42 U.S.C. §6901 et seq., for LCP’s facility in Onon-
daga County, New York.1 The entire RCRA permit issued to LCP
for this facility consists of two parts: a permit for the post-closure
care of two surface impoundments issued by the State of New York,
which is authorized to administer its hazardous waste program in
lieu of the federal program under RCRA §3006(b),2 and the HSWA
portion of the permit issued by Region II, which establishes corrective
action requirements for the facility. Although New York was not
authorized to administer HSWA at the time it issued the permit,3
the State-issued portion of this permit also includes corrective action
requirements pursuant to State law.4

The Board received LCP’s timely petition for review on July
13, 1992. In brief, LCP’s petition raises four general categories of
issues: (1) LCP incorporates by reference all issues raised in its
request under New York law for an adjudicatory hearing on the

The facility currently stores and distributes hydrochloric acid and caustic soda.
Until production activities stopped in 1988, the facility manufactured liquid chlorine,
caustic soda, hydrochloric acid, and sodium hypochlorite bleach. See RCRA Facility
Assessment Report (“RFA”) at 3-4 (Response to Petition, Exhibit 5).

2New York approved LCP’s closure plan for the two surface impoundments at
this facility in 1988 and approved LCP’s closure certification in August 1991. See
RFA, at 4.

3New York received final authorization to administer HSWA on May 22, 1992.
See 57 Fed. Reg. 9978 (Mar. 23, 1992). In accordance with a Memorandum of Agree-
ment (“MOA”) between the State of New York and Region II, U.S. EPA retains
jurisdiction of this final permit, which was signed before the May 22, 1992, effective
date of New York's authorization. See Order (Jan. 29, 1993) (Region II showed cause
for not dismissing LCP’s petition pursuant to the MOA).

‘This duplication is permissible under RCRA. See In re Ciba-Geigy Corp. and
Hercules, Inc., RCRA Appeal No. 91-28 (Apr. 7, 1992).
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LCP CHEMICALS—NEW YORK 663
State-issued portion of the permit, and requests review by this Board
of “those conditions of the HSWA permit which replicate conditions
of the [New York-issued] Permit that LCP has challenged,” Petition
for Review, at 2; (2) LCP alleges that Region II, in violation of
40 C.F.R. § 124.17, failed to respond to all comments made during
the public comment period on the draft permit, and impermissibly
added a new condition to the final permit without explanation in
the response to comments; (3) LCP maintains that Region II is with-
out statutory or regulatory authority to impose certain permit condi-
tions, including a provision which allows the Region to review submis-
sions and require additional studies and investigations; and (4) LCP
contends that the federally-issued HSWA permit contains deadlines
which must be changed because they are inconsistent with those
in the State-issued RCRA permit.5
Upon request of this Board, Region II responded to the petition
for review on September 25, 1992. Region II contends that review
should be denied because LCP’s petition fails to satisfy the procedural
pleading requirements of 40 C.F.R. § 124.19. In addition, the Region
argues that to the extent the petition arguably satisfies those require-
ments, that is, states objections to particular permit conditions with
some specificity, LCP has not met the substantive requirements of
§ 124.19 by demonstrating that those conditions are based upon clear
error or an exercise of discretion or policy warranting review. For
the reasons set forth below, we agree with the Region and deny
review on all issues.
II. DISCUSSION
Under the rules that govern this proceeding, a RCRA permit
ordinarily will not be reviewed unless it is based on a clearly erro-
neous finding of fact or conclusion of law, or involves an important
matter of policy or exercise of discretion that warrants review. See
40 C.F.R. § 124.19. The preamble to § 124.19 states that “this power
of review should be only sparingly exercised,” and that “most permit
conditions should be finally determined at the Regional level * * *.”
45 Fed. Reg. 33,412 (May 19, 1980). The burden of demonstrating
that review is warranted is on the petitioner. See In re Beazer East,
Inc. and Koppers Industries, Inc., RCRA Appeal No. 91-25 at 3 (Mar.
18, 1993) (and cases cited therein).
5In addition, LCP’s petition for review states that the “examples [of permit condi-
tions] given for each category above are provided for purposes of illustration only
and do not constitute a complete list of each issue to be raised on appeal. LCP
reserves its rights to supplement this request as appropriate.” Petition for Review
at 4. (See note 9, infra.)
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664 ENVIRONMENTAL ADMINISTRATIVE DECISIONS

To meet this burden, § 124.19 requires a petitioner to include
in its petition for review “a statement of the reasons supporting
review, including * * * a showing that the condition in question
is based on” either a clearly erroneous finding of fact or conclusion
of law or on a policy or exercise of discretion warranting review.
40 C.F.R. §124.19(a) (emphasis added). We have interpreted this
provision as requiring two things in a petition for review: a clear
identification of the conditions in the permit at issue,6 and an argu-
ment that the condition warrants review.” In fulfilling this latter
requirement, it is not enough for a petitioner to rely on previous
statements of its objections, such as comments on a draft permit;
a petitioner must demonstrate why the Region’s response to those
objections (the Region’s basis for its decision) is clearly erroneous
or otherwise warrants review.8 Tested by these standards, LCP’s
petition for review must be denied.
A. LCP’s Failure To Identify Specific Permit Conditions

First, LCP seeks review of “those conditions of the HSWA permit
which replicate conditions of the [State-issued] Permit that LCP has
challenged,” and incorporates by reference its written request for
a State adjudicatory hearing. Petition for Review at 2. LCP has
not, however, identified any conditions in the HSWA permit that
replicate conditions in the State-issued permit to which it objects.
Moreover, LCP’s reference to its request for a State adjudicatory
hearing wholly fails to explain why the Region’s decision to impose
the conditions at issue is clearly erroneous or otherwise warrants
review. LCP states that the purpose of its appeal of these allegedly
duplicative provisions is “to allow LCP to seek an amendment of
those conditions set forth in the HSWA permit which correspond
to conditions set forth in the [State-issued permit] that may be
amended as a result of LCP’s adjudicatory hearing.” Petition for
Review at 2. We agree with Region II that “[t]o the extent that
the issue intended to be raised by LCP here is consistency between
the two permits, it is not yet ripe. If and when changes are made

®See In re BFGoodrich Co., RCRA Appeal No. 89-29 at 4 (Dec. 19, 1990) (review
not available for issue that did “not directly call into question the propriety of any
specific permit term”).

7See In re Waste Technologies Industries, RCRA Appeal Nos. 92-7 et al. at 23
(July 24, 1992) (review denied where petitioner did not identify “any discrete finding
of fact or conclusion of law made by the Region which they contend was clearly
erroneous or otherwise warrants review”).

8See In re Adcom Wire, RCRA Appeal No. 92-2, at 10 (Sept. 3, 1992) (§ 124.19
not satisfied by mere reference to comments made during public comment period
on draft permit).
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LCP CHEMICALS—NEW YORK 665
to the New York Post-Closure Permit, LCP may seek conforming
modifications to the HSWA permit.” Response to Petition at n.1.
In these circumstances we deny review of the issues raised in cat-
egory 1 of the petition for review. See In re Hytek Finishes Co.,
RCRA Appeal No. 88-45 (Jan. 13, 1989) (agency administrative ap-
peal procedures should not be used to pursue speculative concerns);
In re Amoco Oil Co., RCRA Appeal No. 84-5 (May 17, 1985) (propriety
of inspection pursuant to permit not ripe when no inspection has
been alleged).

Second, LCP contends that the Region violated 40 C.F.R. § 124.17
by failing to respond to all of the comments on the draft permit.
Nonetheless, LCP has not identified which comment(s) the Region
supposedly failed to address. Similarly, LCP contends that the HSWA
permit contains deadlines inconsistent with those in the State-issued
permit, but LCP has failed to identify any condition in the final
HSWA permit imposing such a deadline.

It is not this Board’s obligation to search through the permit
for the specific permit conditions that fall into LCP’s general cat-
egories of objections. Section 124.19 places the burden of identifying
the questionable permit conditions squarely upon the petitioner. Ab-
sent any references to the specific permit conditions at issue, and
a discussion as to why the Region’s decision to impose those condi-
tions warrants review, this Board has no basis for granting review.
Accordingly, LCP’s request for review on the issues raised in cat-
egories 2 and 4 of the petition for review are denied.

B. The Permit Conditions Identified by LCP

LCP has failed to satisfy the substantive requirements of § 124.19
with respect to the permit conditions that were identified in category
3 of the petition for review.

®As discussed above, LCP does identify a few permit conditions in its petition
for review, but argues that these are “for purposes of illustration only, and do not
constitute a complete list of each issue to be raised on appeal.” See note 5, supra.
LCP’s tactic of providing only examples of permit conditions at issue flatly contravenes
the requirement of § 124.19 that a petition for review must identify the specific permit
conditions at issue. A petition for review under §124.19 is not analogous to a notice
of appeal that may be supplemented by further briefing. Although briefing may occur
after review has been granted, the discretion to grant review is to be sparingly exer-
cised, and therefore, under the rules applicable to these proceedings, a petition for
review must specifically identify disputed permit conditions and demonstrate why
review is warranted. See In re General Electric Co., RCRA Appeal No. 91-7, at 23
ov. 6, 1992).
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666 ENVIRONMENTAL ADMINISTRATIVE DECISIONS
First, LCP contends that the Region improperly included in the
final permit a condition requiring approval from the State of New
York “prior to the closure of sewers and structures,” on the ground
that “[t]his condition was not included in the draft permit and [Re-
gion II] has failed to provide a basis for its inclusion in the final
permit” as required by 40 C.F.R. §124.17.10 Petition for Review,
at 3. The Region responds that there is no condition in the permit
requiring LCP to seek approval of the State prior to closure of sewers
and structures. Nor does LCP identify such a permit condition. In-
stead, LCP cites the RCRA Facility Assessment (“RFA”) Report,
which provides that “[t]he facility should submit a decommissioning
plan to the [State] for its review and approval before closing any
abandoned tanks, pipelines, sewers, or structures.” RFA Report, at

5. The RFA Report, which is a part of the corrective action process
   completed prior to permit issuance, provides the basis for the permit
   but is not a condition of the permit, and is not subject to review -
   in these proceedings. Moreover, to the extent that LCP disagrees
   with the exercise of the State’s authority, its concerns should be
   presented to the State. See, e.g., Vulcan Materials Company, RCRA
   Appeal No. 87-1, at 1-2 (Sept. 8, 1988) (issues relating to state-
   issued portion of permit are subject to state, not federal, review).
   In these circumstances we deny review of this issue.
   Second, LCP argues that Permit Module III, condition B.8.(c)
   of the permit is unlawful. This permit condition provides:
   The Regional Administrator may require the Permit-
   tee to conduct new or more extensive assessments,
   investigations, or studies, based upon the information
   provided in the progress reports referred to in Condi-
   tion B.8(a) of this Module above, or upon other sup-
   porting information.
   This provision is located in a portion of the permit detailing LCP’s
   obligation to submit progress reports of all activities conducted pursu-
   ant to the provisions of the permit.11 LCP contends that the provision
   10Section 124.17, in part, provides that the Region's response to the comments
   on the draft permit shall “(s]pecify which provisions, if any, of the draft permit have
   been changed in the final permit decision, and the reasons for the change.”
   11As noted in the quoted permit condition at issue, this progress report require-
   ment is contained in Condition B.8(a) of the permit, which provides in part that
   “[t]he Permittee shall submit, to the Regional Administrator, signed progress reports,
   as specified in approved work plans pursuant to this Permit, of all activities (ie.,
   SWMU Assessment, Interim Measures, RCRA Facility Investigation, Corrective Meas-
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   LCP CHEMICALS—NEW YORK 667
   is improper because Region II is “without authority to reserve the
   right to impose additional permit conditions [such as assessments,
   investigations and studies] after issuance of the permit.” Petition
   for Review, at 3.

Region II responds that this permit condition is required to allow
a phased approach to corrective action. The Region explains that
corrective action permits contemplate that additional information will
be required before all releases at a facility have been fully identified
and characterized. Response to Petition, at 17-20. This condition
allows the Region to ensure that the assessments, investigations and
studies undertaken by the permittee will provide that the pollution
is adequately identified and addressed. And, as the Region notes
in its response, the Administrator in In re Hoechst Celanese Corp.,
RCRA Appeal No. 87-13 (Feb. 28, 1989), specifically upheld this
procedure:

By necessity, corrective action is often a phased proc-

ess because, at the time of permit issuance, there

might not be sufficient information to identify the

particular corrective action measures needed. See 50

Fed. Reg. 28,714 (July 15, 1985). If this is the case,

the permit should establish a time frame under

which the needed information will be obtained. Id.

As the process advances—from RFA to RFI plan to

RFI report to a final decision on the specific correc-

tive action measures required—newly acquired data

is used to refine each subsequent phase. Once all

necessary information is acquired and appropriate

corrective action identified, the permit is modified

accordingly. Id.
In re Hoechst Celanese, at 6-7. The Region concludes that LCP’s
concerns are similar to the ones rejected in In re W.R. Grace &
Co., RCRA Appeal No. 89-28 (Mar. 25, 1991), where it was held
that revisions to interim submissions, such as RFI workplans or
reports, are not permit modifications subject to procedures detailed
in the regulations for modifying permits.

LCP contends that the Region “is without authority to reserve
the right to impose additional permit conditions after issuance of
the permit.” Petition for Review, at 3. LCP apparently believes that
ures Study) conducted pursuant to the provisions of the Corrective Action Schedule
of Compliance * * *.”

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668 ENVIRONMENTAL ADMINISTRATIVE DECISIONS
the Region must include all obligations in the original permit. LCP
apparently does not question the Agency’s authority to impose addi-
tional conditions through permit modifications. Rather, LCP appar-
ently questions the Region’s express “reservation” of rights in the
permit. As explained in In re Hoechst Celanese, it is well-settled
that corrective action is typically a phased process because rarely
at permit issuance is all necessary information available. Therefore,
the typical RCRA permit will contain a schedule of compliance dictat-
ing the steps to be taken to obtain this information. Consequently,
it is not uncommon for “obligations in the schedule of compliance
{to be] written in general terms, with the permit providing that
the details of those obligations will be filled in later as more informa-
tion about the site becomes available.” In re General Electric Co.,
RCRA Appeal No. 91-7, at 3 (Apr. 13, 1993). LCP’s permit comports
with these principles, and thus there is no merit to LCP’s argument.
Review of this provision is denied.12
Finally, LCP argues that Section A of Permit Module I is not

lawful. This section of the permit provides that:

Compliance with the terms of this permit does not

constitute a defense to any action brought under Sec-

tion 7003 of RCRA, * * * Sections 106(a), 104, 107

and/or 122 of the Comprehensive Environmental Re-

sponse, Compensation and Liability Act [CERCLA],

• • • or any other law and corresponding regulations

governing protection of public health and the envi-

ronment.

12As previously noted, the Region cited In re W.R. Grace & Co. in support of

its position. That case, and our recent decision in In re General Electric Co., RCRA
Appeal No. 91-7 (Apr. 13, 1993), pertained to the procedures applicable to the exercise
of the Region’s authority to impose additional obligations after permit issuance. Those
decisions recognize that the Region has two sources of authority to impose additional
obligations upon the permittee after permit issuance: modification of the permit under
40 C.F.R. §270.41, or incorporation of interim submissions, such as an RFI workplan,
into the permit in accordance with due process requirements set forth in In re General
Electric Co. The procedures for imposing additional obligations through incorporation
of interim submissions required by the permit are detailed elsewhere in the permit,
and LCP has not challenged those provisions. We note, moreover, consistent with
our decision in In re General Electric Co., at n.24, LCP will be entitled to the proce-
dures specified in that opinion in the event the Region seeks to exercise its authority
to impose additional obligations upon LCP through the incorporation of interim submis-
sions into the permit.
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LCP CHEMICALS—NEW YORK 669
Again, without explanation, LCP contends that “the [Region] is with-
out legal authority to so limit the permittee’s rights.” Petition for
Review, at 3.

LCP’s conclusive contention, without more, does not meet its
burden of demonstrating review is warranted under § 124.19. See
In re Hadson Power 14—Buena Vista, PSD Appeal Nos. 92-3, 92-4
and 92-5, at n.54 (Oct. 5, 1992). Nonetheless, because the permit
condition is an accurate description of applicable law, we conclude
on the merits that it is not based on clear error nor does it provide
any other basis for review. As noted by Region II in its response
to the petition, under the applicable regulation, 40 C.F.R. §270.4(a),
compliance with a HSWA permit constitutes compliance with RCRA
Subtitle C; the regulation does not, however, provide that compliance
with the permit is compliance with any other provision of RCRA
or any other law protecting human health and the environment.
For example, RCRA § 7003, which is not a part of Subtitle C, provides
that it may be applied “notwithstanding any other provision of this
chapter.” 42 U.S.C. §6973(a). In addition, liability under CERCLA
is defined by CERCLA § 107(a), 42 U.S.C. 9607(a), which also states,
in pertinent part:

Notwithstanding any other provision or rule of law,

and subject only to the defenses set forth in sub-

section (b) of this section—[T]he following persons

are liable * * *.13
In view of the clear language in RCRA §7003 and CERCLA § 107,
the permit correctly puts LCP on notice that compliance with a RCRA
Subtitle C permit does not bar EPA from taking lawful actions when
necessary to protect human health and the environment.14

III. CONCLUSION

For the reasons set forth above, LCP has failed to demonstrate
that review of this permit is warranted under 40 C.F.R. § 124.19.
Accordingly, review is denied.

So ordered.

18While CERCLA liability does not extend to federally permitted releases under
CERCLA § 107(j), this exemption applies only to the extent the HSWA permit author-
izes any such releases. 42 U.S.C. §9607(j).

14For example, compliance with this permit certainly would not satisfy compliance
with the Clean Air Act or Clean Water Act should LCP need permits under those
Acts.

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