Star Enterprise, Delaware City Refinery

Plain-English summary

Star Enterprise operated a land treatment unit at its Delaware City, Delaware petroleum refinery under a temporary state-issued RCRA permit. After EPA newly regulated certain petroleum-refinery sludges and toxicity-characteristic wastes, Star asked EPA to modify the permit so it could continue applying those wastes to the unit. The Environmental Appeals Board found that EPA had not adequately supported its separate claim that Star's request was incomplete, but held that the request was properly denied because Star did not demonstrate that the unit could completely treat hazardous constituents within the treatment zone. The Board also rejected technical challenges raised for the first time on appeal and upheld EPA's decision to stop the applications and begin RCRA closure of the unit.

Decision snapshot

• Cited authorities: RCRA §§ 3004(g), 3004(m), and 3005; 40 C.F.R. §§ 261.31, 261.42, 264.90, 264.98, 264.272, 264.278, and 270.42.
• Outcome: Petition for review denied. EPA's denial of the Class 2 permit-modification request remained in place.
• Key point: A permittee seeking approval to continue land treatment of newly regulated hazardous waste must demonstrate complete treatment within the unit's treatment zone and present its technical objections during the modification process.

Full text (EPA EAB public release)

+642 ENVIRONMENTAL ADMINISTRATIVE DECISIONS

IN THE MATTER OF STAR ENTERPRISE, DELAWARE
CITY REFINERY

RCRA Appeal No. 92-9

ORDER DENYING REVIEW

Decided April 20, 1993

Syllabus

Star Enterprise (“Star”) operates a land treatment unit (“LTU”) at its Delaware
City, Delaware petroleum refinery under a temporary RCRA Land Treatment Dem-
onstration permit issued by the State of Delaware. During 1990, a new hazardous
waste listing and the issuance of EPA’s final Toxicity Characteristic rule caused certain
petroleum refinery sludges not previously regulated as hazardous to be brought within
the federal hazardous waste regulatory system. Because Delaware does not have
HSWA authority, Star was required to seek EPA approval to continue to dispose
of these newly listed or characterized hazardous wastes at its LTU. In accordance
with 40 C.F.R. §270.42(g), Star requested that EPA modify Star’s existing State-
issued RCRA permit. Citing 40 C.F.R. §§ 270.42(b)(7)(i) and (ii), EPA Region III
denied Star’s modification request on the grounds that (1) the modification request
was incomplete, and (2) Star failed to demonstrate that hazardous constituents in
the waste applied to the LTU could be completely degraded, transformed or immo-
bilized within the treatment zone of the LTU, as required by 40 C.F.R. §264.272(a).
Star appeals.

Held: (1) The Region has not properly supported its conclusion that Star’s modi-
fication request was incomplete. In order to substantiate that conclusion, the Region
was required to identify one or more of the necessary elements of a Class 2 permit
modification request, as listed in 40 C.F.R. §270.42(b)(1) and the regulations referred
to therein, that Star failed to include in its own request. The Region did not do
so, and its conclusion regarding the completeness of Star’s modification request there-
fore did not provide an adequate basis for denial of the request.

(2) Star’s modification request was correctly denied, however, because the Region
reasonably concluded that Star had failed to demonstrate the LTU’s ability to accom-
plish complete treatment of hazardous constituents of the applied waste within the
treatment zone, as required by 40 C.F.R. §264.272(a). Star’s effort to challenge that
conclusion by presenting for the first time, in the context of this appeal, numerous
technical objections to the sampling, analytical and statistical procedures specified
in the LTU’s existing RCRA permit—in order to minimize the number of instances
in which hazardous constituents apparently migrated beyond the LTU’s treatment.
zone into the underlying soil or groundwater—is rejected as untimely. Operating data
facially inconsistent with the desired finding of complete treatment should have been,
but were not, addressed by Star in its modification request. The request offered no

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STAR ENTERPRISE, DELAWARE CITY REFINERY 643

explanation tending to invalidate or minimize the significance of the apparently unfa-
vorable data, and the Region was therefore justified in taking those data into account
in reaching adverse conclusions in its evaluation of the merits of the request. Also
rejected as a basis for overturning the Region’s decision are Star’s conclusory assertion
that “many successful applications of waste” have occurred at the LTU, and its conten-
tion that Star’s remediation of certain acknowledged unit failures (as required by
the terms of the existing permit) precluded the Region from considering those failures
as evidence reflecting adversely on the unit’s overall performance. Finally, Star’s claim
that the State of Delaware definitively resolved the question of the LTU’s entitlement
to a full RCRA operating permit, by granting an extension of the unit’s temporary
permit beyond its original expiration date, is rejected as both legally erroneous and
unsupported by the record.

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

Opinion of the Board by Judge Reich:

Petitioner Star Enterprise (“Star”) seeks review of the denial
of its request for modification of a permit issued under the Resource
Conservation and Recovery Act, 42 U.S.C. §§6901 et seq., governing
the land treatment unit (“LTU”) at Star’s Delaware City, Delaware
petroleum refinery.1 The requested modification would have enabled
Star to continue to utilize the LTU for the disposal of three types
of waste newly listed or identified by EPA as hazardous under 40
C.F.R. Part 261: Hazardous Waste No. F037 (listed as petroleum
refinery primary separation sludge), Hazardous Waste No. F038 (list-
ed as petroleum refinery secondary [emulsified] separation sludge),2
and solid wastes exhibiting the characteristic of toxicity as deter-
mined by application of the Toxicity Characteristic Leaching Proce-

1Regulatory action implementing the 1984 Hazardous and Solid Waste Amend-
ments to RCRA will generally eliminate land disposal of hazardous wastes that have
not been pretreated in accordance with standards established by EPA pursuant to
RCRA Section 3004(m), 42 U.S.C. §6924(m), unless they are entitled to a variance
under the Act, such as the variance for meeting the “no migration” standard under
RCRA Section 3004(g)(5), 42 U.S.C. §6924(g)(5). The HSWA land disposal restrictions
do not affect this appeal, however, because no regulations establishing land disposal
prohibitions or pretreatment standards for the petroleum refining wastes here at
issue were in existence as of the date of the Region’s denial, from which this appeal
has been taken. Subsequently, in August 1992, land disposal prohibitions and
pretreatment standards (that will become effective in June 1993) were established
for F037 and F038 petroleum refining wastes. See 57 Fed. Reg. 37194, 37271-74
(1992) (to be codified at 40 C.F.R. §§ 268.36(b), (c), (h)). No comparable regulations
have yet been issued for hazardous wastes newly identified under the Toxicity Char-
acteristic rule.

2EPA first listed Hazardous Waste Nos. F037 and F038 in a rule issued November
2, 1990 (effective May 2, 1991). See 40 C.F.R. § 261.31.

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644 ENVIRONMENTAL ADMINISTRATIVE DECISIONS

dure.? On February 12, 1992, EPA Region III denied the modification
request, and ordered Star to discontinue applying F037, F038, and
Toxicity Characteristic wastes to the treatment unit and thereafter
to initiate RCRA closure of the unit. Star appeals the Region’s deci-
sion pursuant to 40 C.F.R. § 270.42(f)(2).

I. BACKGROUND

Star’s Delaware City petroleum refinery occupies five thousand
acres alongside the Delaware River fifteen miles south of Wilmington,
and has been in operation since 1956. According to the narrative
portions of the State-issued permit involved in this appeal, petition-
er’s corporate predecessor secured RCRA interim status in November
1980 for the continued operation of an on-site landfill at the Delaware
City refinery and then, on an adjacent portion of the refinery prop-
erty, commenced operation of a land treatment unit.4 under interim
status during 1981. See Delaware Permit No. HW 92C09 §II.A.1.c.,
at p. II-1 (describing the operational and permitting history of the
landfill and LTU). The Delaware permit recounts that federal regu-
latory standards governing the operation of landfills and land treat-
ment units became effective on January 26, 1983, and that in 1984,
the State of Delaware “adopted the same regulations” and received
EPA authorization to administer them. Id. The State granted peti-
tioner a RCRA permit for the continued operation of the landfill
at the Delaware City refinery in September 1984, but refrained from
taking any action on a permit application for the LTU pending the
expected development and issuance of an EPA guidance document
regarding land treatment. Id. at II-2.5

3EPA’s Toxicity Characteristic rule, which introduced the Toxicity Characteristic
Leaching Procedure as a determinant of toxicity and thus as a basis for federal
regulation of certain wastes and constituents not previously regulated as hazardous,
was issued March 29, 1990 (and became effective September 25, 1990). See 40 C.F.R.
§ 261.42.

4A land treatment unit is a hazardous waste management unit whose operation
“involves the application of waste on the soil surface or the incorporation of waste
into the upper layers of the soil in order to degrade, transform or immobilize hazardous
constituents present in hazardous waste.” Preamble to the Interim Final Hazardous
Waste Land Treatment, Storage and Disposal Regulations, 47 Fed. Reg. 32274, 32324
(1982) (hereinafter “LTSD Preamble”). Unlike other land disposal systems, land treat-
ment units do not include physical barriers for the prevention of hazardous constituent
migration into the underlying soil and groundwater, but rely instead on “the dynamic
physical, chemical, and biological processes occurring in the upper layers of the soil
[i.e., the unit’s treatment zone] for the degradation, transformation, and immobilization
of hazardous constituents.” Jd. See generally 40 C.F.R. Part 264, Subpart M for the
standards governing the permitting of LTUs.

5We surmise that the guidance document to which Delaware’s permit refers is
EPA’s Permit Guidance Manual on Hazardous Waste Land Treatment Demonstrations,

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STAR ENTERPRISE, DELAWARE CITY REFINERY 645

With the enactment of the 1984 Hazardous and Solid Waste
Amendments to RCRA (“HSWA”), it became necessary for Delaware
to reach a final determination granting or denying a RCRA permit
for petitioner’s interim status land treatment unit no later than No-
vember 8, 1988. See 42 U.S.C. § 6925(c)(2)(A)(i).6 In February 1988,
in anticipation of the approaching statutory deadline, Delaware’s De-
partment of Natural Resources and Environmental Control
(“DNREC”) notified petitioner that DNREC was unwilling to issue
the Part 264 RCRA operating permit sought by petitioner for the
Delaware City LTU. DNREC explained that the Land Treatment
Demonstration Report submitted by petitioner in November 1986 in
support of its RCRA permit application “does not meet the regulatory
requirement found in Section 264.272 of the Delaware Regulation([s]
Governing Hazardous Waste,”7 because the materials submitted to
DNREC failed to present necessary data and did not, in any event,
substantively discharge petitioner's burden of demonstrating “com-
plete” treatment of hazardous constituents within the unit’s treat-
ment zone:

Complete data using available literature data, oper-
ating data, lab or field test results have not been
supplied, consequently a “Full Scale Land Treatment
Permit” cannot be issued based on this inadequacy.
The information contained with the report has not
demonstrated that each hazardous constituent of
each waste applied [to the unit] for land treatment
has been, or could be, completely degraded, trans-

Doc. No. EPA/G-86-00032, the final version of which was issued by the Office of
Solid Waste in July 1986.
6 Section 3005(c)(2)(A)(i) of RCRA, 42 U.S.C. §6925(c)(2)(A)(i), states:
Not later than the date four years after November 8, 1984, in
the case of each application under this subsection for a permit
for a land disposal facility which was submitted before such date,
the Administrator shall issue a final permit pursuant to such
application or issue a final denial of such application.
Delaware has been authorized, pursuant to RCRA Section 3006(b), 42 U.S.C. § 6926(b),
to “issue and enforce permits for the storage, treatment, or disposal of hazardous
waste” in lieu of the EPA Administrator since June 1984. See 40 C.F.R. §§ 272.400.401
(describing the scope and limits of Delaware’s authorization).
7The Delaware regulations modeled after the federal hazardous waste regulatory
system are referred to as the Delaware Regulations Governing Hazardous Waste.
As previously noted, Delaware “adopted the same regulations” as the federal regula-
tions. For ease of reference, this background discussion will cite to the equivalent
federal regulations. For purposes of deciding this appeal, only federal regulations
are implicated because Star’s modification request pertains to regulatory provisions
for which the State has not been authorized.

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646 ENVIRONMENTAL ADMINISTRATIVE DECISIONS

formed or immobilized within the treatment zone.
Failure to accomplish this basic requirement is suffi-
cient to deny issuance of a permit to conduct hazard-
ous waste land treatment. [R145a (emphasis in origi-
nal)]

Moreover, because DNREC considered the deficiencies in petition-
er’s original Land Treatment Demonstration Report not to be remedi-
able within the remaining interim status period, DNREC urged peti-
tioner to withdraw its application for a RCRA operating permit and
to apply, instead, for a land treatment demonstration permit pursu-
ant to Delaware’s version of 40 C.F.R. § 270.63(a).§ Petitioner followed
the course recommended by DNREC and, on November 8, 1988,
DNREC issued (as an amendment to petitioner’s existing RCRA land-
fill permit) a land treatment demonstration permit (the “Permit”)
for the Delaware City LTU—allowing petitioner to undertake a fif-
teen-month Land Treatment Demonstration project at the LTU and
authorizing petitioner to continue applying hazardous wastes to the
LTU for the duration of the demonstration project, i.e., until February
8, 1990.

8DNREC advised petitioner that, under the circumstances, the only apparent
alternative to conducting a new land treatment demonstration under a demonstration
permit would be loss of interim status and closure of the LTU:

You are aware that the Hazardous and Solid Waste Amendments
of 1984 (HSWA) require all interim status land disposal facilities
(LDF) [to] obtain permit status by November 8, 1988. If this
is not accomplished, interim status will be lost and closure/post
closure approaches must be accomplished. It appears that the
deficiencies of the land treatment demonstration report can not
be corrected in time for you to obtain an operating permit by
the deadline, therefore, it is recommended that the application
for a “Land Treatment Operation Permit” be withdrawn. A sepa-
rate, new application for a “Short Term Treatment Demonstration
Permit” should be submitted which will satisfy the HSWA statu-
tory requirement. [R145a]

A treatment demonstration permit allows an LTU owner or operator to perform
specified field tests or laboratory procedures that involve hazardous waste treatment,
for the purpose of attempting the demonstration required by Section 264.272(a). See
40 C.F.R. §§ 264.272(b), 270.68(a); see also LTSD Preamble, 47 Fed. Reg. at 32326
(“Where field testing or laboratory analyses are used, hazardous waste disposal or
treatment is occurring and RCRA provides that such activity requires a permit.”).
A “short-term” treatment demonstration permit is the particular type of demonstration
permit for which LTU owners and operators are directed to apply in the event that
“insufficient treatment information exists to satisfy the treatment demonstration or
to * * * establish preliminary permit conditions for the full-scale facility.” Permit
Applicants’ Guidance Manual for Hazardous Waste Land Treatment, Storage, and
Disposal Facilities, Doc. No. EPA/530-SW-84-004, §7.2, at p. 7-4 (OSWER 1984).

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STAR ENTERPRISE, DELAWARE CITY REFINERY 647

The Permit established a mandatory program of specific sam-
pling, analytical, and statistical procedures designed to ensure the
timely detection of any hazardous constituents leaching beyond the
LTU’s treatment zone. Consistent with the applicable Part 264 regu-
lations, hazardous constituent migration, if any, was to be detected
through regular monitoring of the soil and soil-pore liquid imme-
diately below the treatment zone,° and of the underlying groundwater
flowing toward, and away from, the unit boundaries.1°

The Permit also contained a series of provisions requiring, on
an ongoing basis, the compilation, interpretation, and submission of
field test data derived from the LTU’s unsaturated zone!! and
groundwater monitoring systems, to provide a foundation for the ulti-
mate assessment of the LTU’s ability to achieve the “complete” treat-
ment of applied wastes required by Section 264.272(a). For example,
the Permit directed Star to prepare and submit quarterly soil-pore
liquid monitoring reports (to include “a summary of the analytical
results * * * [pertaining to] active and background soil-pore liquid
quality”), semi-annual soil core monitoring reports (to include “the
analytical results of the active and background soil-core data”), semi-
annual groundwater monitoring reports (to include “a tabulation of
analytical results of the upgradient and downgradient ground-water
samples”), and annual site activity reports (to include a “[slummary
of all ground-water, soil, and soil-pore liquid analyses obtained in
the reporting period”). See Permit Attachment E. In addition, Star
was required to include the results of its unsaturated zone monitoring
in a Final Land Treatment Demonstration Report containing, among
other things, “[a] summary of the background and field test plot

9See 40 C.F.R. § 264.278(d) (a land treatment unit owner or operator “must conduct
soil monitoring and soil-pore liquid monitoring immediately below the treatment zone”);
40 C.F.R. §264.278(f) (“The owner or operator must determine whether there is a
statistically significant change over background values for any hazardous constituent
to be monitored * * * below the treatment zone each time he conducts soil monitoring
and soil-pore liquid monitoring * * *.”).

10 See 40 C.F.R. § 264.90(a)(2) (the owner or operator of any land treatment unit,
landfill, surface impoundment, or waste pile that receives hazardous waste after July
26, 1982, must conduct groundwater monitoring “for purposes of detecting, characteriz-
ing and responding to releases to the uppermost aquifer”); 40 C.F.R. §264.98(f) (“The
owner or operator must determine whether there is statistically significant evidence
of [groundwater] contamination for any chemical parameter [or] hazardous constituent
specified in the permit * * *,”).

11The unsaturated zone refers to “the geological profile extending from the ground
surface * * * to the upper surface of the principal water-bearing formation.” Permit
Guidance Manual on Unsaturated Zone Monitoring for Hazardous Waste Land Treat-
ment Units, Doc. No. EPA/530-SW-86-040, at 4 (OSWER 1986).

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648 ENVIRONMENTAL ADMINISTRATIVE DECISIONS

analytical results” and “a discussion of any statistically significant
increases in any monitoring parameters.” Id.

In an order dated February 8, 1990, DNREC extended the term
of the Permit, at Star’s request, until such time as DNREC shall
have completed its review of Star’s Final Land Treatment Demonstra-
tion Report and decided whether to issue a full RCRA operating
permit for the LTU. Secretary's Order No. 90-HW-03, at p. 5
(DNREC 1990) (R74a). This order deleted the Permit provision requir-
ing Star to “cease application of waste onto the field test plot” at
the conclusion of the fifteen-month demonstration, and replaced it
with the following provision authorizing waste disposal at the LTU
after the conclusion of the demonstration period:

Upon completion of the 15 month Land Treatment
Demonstration, the Permittee may continue applica-
tion of waste onto the Land Treatment Unit until
the Department completes the final demonstration
permit [sic] determination. During the period of
waste application following the completion of the
demonstration and prior to the Department’s final
demonstration permit determination, the Permittee
shall continue operating and monitoring the Land
Treatment Unit in accordance with Provisions XIII.B,
XIII.C, XIII.D, XIII.E, and XIII.F [i.e., the monitoring
and other operational requirements that governed
the LTU during the demonstration period] and shall
meet all other applicable State and Federal require-
ments.

Star submitted its Final Land Treatment Demonstration Report to
DNREC in March 1990, but DNREC has evidently never issued a
decision granting or denying a Part 264 permit for the LTU. Star
has therefore continued to apply hazardous wastes to the LTU under
the authority of the State permit provision quoted above.

Meanwhile, federal regulations issued by EPA during 1990 re-
sulted in more of the wastes applied to the LTU being characterized
as hazardous, and subject to certain federal requirements.!? In par-

12 Although the State of Delaware is authorized to administer its own hazardous
waste management program in lieu of the federal program set forth in RCRA Subtitle
C, Delaware may not administer “any HSWA requirement” unless EPA has explicitly
conferred such additional authority by notice published in the Federal Register. See
40 C.F.R. §§ 272.400-.401. Because the petroleum refining wastes at issue in these
proceedings are controlled as hazardous wastes pursuant to regulations implementing

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STAR ENTERPRISE, DELAWARE CITY REFINERY 649

ticular, on March 29, 1990, EPA issued its Toxicity Characteristic
rule, see 55 Fed. Reg. 11798 (1990), which, as of September 25,
1990, expanded the category of solid waste subject to federal regula-
tion as “characteristic” hazardous waste, by reformulating the regu-
latory criteria for determining toxicity. On November 2, 1990, as
part of a separate regulatory initiative, EPA added primary (F037)
and secondary (F038) petroleum refinery separation sludges to its
list of “hazardous wastes from non-specific sources,” effective as of
May 2, 1991. See 55 Fed. Reg. 46354 (1990); 56 Fed. Reg. 21959
(1991). The issuance of these regulations required Star either to dis-
continue its land treatment of Toxicity Characteristic (“TC”), F037,
and F038 wastes at the Delaware City unit or, because these are
wastes newly listed or identified under HSWA, to seek an appropriate
federal permit modification pursuant to 40 C.F.R. § 270.42(g).18

Star timely submitted a Class 1 modification request to continue
handling newly regulated TC wastes on August 20, 1990; a Class
1 modification request to continue handling newly regulated F037
and F038 listed wastes on April 30, 1991; and, on March 25, 1991,
a Class 2 modification request to add F037, F038, and three types
of TC waste (DCG Biosludge; Tank Bottom Sludge; and Miscellaneous
Oily Soil, Sediment and Sludge) to the list of allowed hazardous
wastes in the Delaware City LTU’s existing RCRA permit.!¢ Region

HSWA, see 40 C.F.R. §271.1G)(1), and because EPA has not authorized Delaware
to administer those regulations, petitioner's permit modification request was properly
directed to, and decided by, the EPA Regional Administrator.

13 Section 270.42(g) states that the continued management at an existing facility
of wastes newly listed or identified as hazardous under 40 C.F.R. Part 261 shall
be federally authorized only if, inter alia, the permittee:

(ii) Submits a Class 1 modification request on or before the date
on which the waste becomes subject to the new requirements;
[and]

(iv) In the case of Classes 2 and 3 modifications, also submits

a complete modification request within 180 days after the effective

date of the rule listing or identifying the waste.
The permit modification provisions of Section 270.42(g) were amended effective August
21, 1991, but those amendments are not material to this appeal.

14By the time Star initiated its request for a federal permit modification, Star

had already, several months earlier, completed the fifteen-month field test for which
the State Permit was originally issued. The Permit had already been transformed,
by the State’s February 8, 1990 order (see supra pp. 603-604), from a limited-duration
permit authorizing LTU operation solely for purposes of conducting a treatment dem-
onstration, into a permit of indefinite duration authorizing application of hazardous

wastes to the LTU for purposes unrelated to the (now-concluded) demonstration project.
Continued

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650 ENVIRONMENTAL ADMINISTRATIVE DECISIONS

III denied Star’s request on the grounds that (1) Star failed to dem-
onstrate that hazardous constituents in the applied wastes could be
completely degraded, transformed, or immobilized within the treat-
ment zone of the LTU, as required by 40 C.F.R. § 264.272(a),15 and
(2) Star’s modification request was “incomplete,” as that term is used
in 40 C.F.R. § 270.42(b)(7)().

For the reasons discussed below, we reject Region III’s proffered

explanation for characterizing Star’s modification request as “incom-
plete.” We find no error, however, in the Region’s determination that
Star failed to make the showing required by 40 C.F.R. § 264.272(a)
with respect to the LTU’s ability to degrade, transform, and/or immo-
bilize hazardous constituents of the applied wastes within the treat-
ment zone. The petition for review is therefore denied.
Moreover, the data generated during the demonstration period had already been sub-
mitted to the State in the form of Star’s Final Land Treatment Demonstration Report,
and the State was in the process of reviewing the data in order to decide whether
to grant or deny a Part 264 permit for full-scale operation of the LTU. Star itself,
in its modification request, confirmed that the demonstration phase of the LTU permit-
ting process had been completed by consistently referring to the Land Treatment
Demonstration in the past tense. See R3Ga-37a.

Accordingly, when Region III evaluated Star’s modification request, it evidently did
so with the understanding that Star was asking the Region to authorize nothing
less than full-scale operation of the LTU under 40 C.F.R. Part 264, Subpart M,
for the treatment and disposal of HSWA-regulated wastes. With that understanding,
which is reflected throughout the Statement of Basis for the Region’s final decision,
the Region addressed the merits of the modification request by reviewing the LTU
performance data against the standard established in 40 C.F.R. § 264.272(a), i.e., the
standard for obtaining a full-scale facility permit rather than a demonstration permit.
See Permit Applicants’ Guidance Manual for Hazardous Waste Land Treatment, Stor-
age, and Disposal Facilities, Doc. No. EPA/530-SW-84—004, at 7-4 (“After the lab
or field tests are complete, the applicant should apply for the full-scale facility per-
mit.”). Star has never challenged the Region’s apparent understanding of the nature
and objectives of the modification request, and has never contended that the Section
264.272(a) standard was inapplicable to the request. We therefore assume, for purposes
of this appeal, the correctness of the Region’s understanding of Star’s request and
the applicability of the Section 264.272(a) criterion to that request.

145 According to 40 C.F.R. §270.42(b)(7)(ii), a Class 2 permit modification request
is properly denied if the requested modification would not comply with any of the
substantive regulatory standards of 40 C.F.R. Part 264 that are applicable to the
permitted facility. In this case, the Region concluded that the continued land treatment
of HSWA-regulated F037, F038, and TC wastes at petitioner’s Delaware City refinery
would violate 40 C.F.R. §264.272(a), which requires that [f]or each waste that will
be applied to the treatment zone, the owner or operator must demonstrate, prior
to application of the waste, that hazardous constituents in the waste can be completely
degraded, transformed or immobilized in the treatment zone.

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STAR ENTERPRISE, DELAWARE CITY REFINERY 651

Il. DISCUSSION

Under the rules governing this proceeding, a RCRA permit deter-
mination ordinarily will not be reviewed unless it is based on a
clearly erroneous finding of fact or conclusion of law, or involves
an important matter of policy or exercise of discretion that warrants
review. See, e.g., Pollution Control Industries of Indiana, RCRA Ap-
peal No. 92-3, at 3 (EAB, Aug. 5, 1992); Sandoz Pharmaceuticals
Corp., RCRA Appeal No. 91-14, at 3 (EAB, July 9, 1992). See also
40 C.F.R. §124.19.16 The preamble to Section 124.19 states that
the Environmental Appeals Board’s power of review “should only
be sparingly exercised” and that “most permit conditions should be
finally determined at the Regional level * * *.” 45 Fed. Reg. 33,412
(1980). The burden of demonstrating that review is warranted rests
with the petitioner. E.g., GSX Services of South Carolina, RCRA
Appeal No. 89-22, at 3 (EAB, Dec. 29, 1992).

Star’s argument on appeal is in two parts, corresponding to the
two independent grounds advanced by the Region in its order denying
Star’s modification request. The Region invoked 40 C.F.R.
§ 270.42(b)(7)(i), which states that a Class 2 modification request
may be denied if “(t]he modification request is incomplete.” The Re-
gion also, however, conducted a detailed evaluation of the merits
of the proposed modification pursuant to 40 C.F.R. §270.42(b)(7)(ii),1”
and concluded that Star’s continued land treatment of HSWA-regu-
lated petroleum refining wastes at the LTU would not “comply with
the appropriate requirements of 40 CFR part 264.”18 Specifically,
the Region determined that the proposed land treatment of newly
regulated F037, F038, and TC wastes at the LTU was precluded
by Star’s inability to satisfy the hazardous waste land treatment
demonstration requirement set forth in 40 C.F.R. § 264.272(a), which
provides:

For each waste that will be applied to the treatment
zone, the owner or operator must demonstrate, prior
to application of the waste, that hazardous constitu-

16 According to 40 C.F.R. §270.42(f(2), an appeal from a decision granting or
denying a Class 2 modification request is governed by the permit appeal procedures
of Section 124.19.

17Paragraph 270.42(b)(7\ii) provides that the grounds for denial of a Class 2
permit modification request include a determination by the Regional Administrator
that “{t]he requested modification does not comply with the appropriate requirements
of 40 CFR part 264 or other applicable requirements.”

18The Region specifically noted that notwithstanding the incompleteness of the
modification request, “available data from Star provided sufficient evidence for this
denial.” Statement of Basis, at 15.

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652 ENVIRONMENTAL ADMINISTRATIVE DECISIONS

ents in the waste can be completely degraded, trans-
formed or immobilized in the treatment zone.

Star challenges both the Region’s approach to the “completeness”
requirement and the Region’s substantive evaluation of the results
of Star’s land treatment demonstration.

A. “Completeness”

Although the Region carefully preserves the argument that the
available LTU operating data are sufficient to justify a negative de-
termination on the merits of Star’s modification request, the Region
also asserts that “the monitoring data provided by Star to EPA
(through DNREC) was incomplete according to the data gathering/
analysis stipulations in the [demonstration permit].” Statement of
Basis, at 15. In a section of its Statement of Basis titled “Complete-
ness of Data,” the Region supports its determination regarding com-
pleteness by identifying four specific deficiencies in the Star data:

(1) Soil samples from below the LTU treatment zone were
reportedly taken at depths ranging from 60 to 72 inches
beneath the soil surface, rather than the narrower range
(60 to 66 inches) specified in the demonstration permit;

(2) Soil samples used to calculate the background levels of
hazardous constituents appeared, according to the Region’s
analysis, to have been drawn from contaminated back-
ground soils;

(3) Star’s groundwater quality reports did not consistently
present the “total” concentrations of the relevant monitor-
ing parameters, but in many instances presented the (con-
siderably lower) “dissolved” constituent concentrations;
and

(4) For each groundwater sampling well, Star reported the
concentration of each monitoring parameter as a single
value, whereas the demonstration permit required Star
to sample four different aliquots per well per sampling
event (and thus to report four separate values for the
concentration of each constituent).!9

12In its Response to the Petition for Review, the Region states that the Star

data, and subsequent data obtained from the State, “revealed numerous deficiencies,
none of which were identified, addressed, or explained in Star’s permit modification

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STAR ENTERPRISE, DELAWARE CITY REFINERY 653

Star argues that none of the deficiencies cited in the Region’s
denial is germane to the completeness of the modification request,
and that the Region’s analysis—by ostensibly looking at alleged defi-
ciencies in the data required to be collected under the existing permit
rather than the completeness of the request—leads to the post hoc
imposition of application requirements having no basis in the text
of the governing regulations:

[N]one of these [four] items relate to the complete-
ness of the application, i.e. the failure to submit in-
formation required by Part 270, and Region III cites
no application requirements in Part 270 which it
alleges were not fulfilled. Instead Region III essen-
tially alleges that some of the data collected under
the existing permit * * * may be _ objection-
able. * * * [But] this data was not itself a required
part of the application, so it is irrelevant to the com-
pleteness of the application.

Petition for Review, at 2. In response, the Region appears to acknowl-
edge that its “completeness” concerns do in fact relate to the integrity
of the treatment demonstration data, but the Region continues to
insist that the request was fatally incomplete owing to its failure
to “identify,” “address,” or “explain” any of the four data gathering
and analytical deficiencies cited in the Region’s Statement of Basis.
Response, at 2.

We agree with Star that the Region cannot, as it did here, simply
equate the submission requirements for a permit modification request
with the data generation requirements of the permit, and then label
the modification request “incomplete” solely because the data were
not generated strictly in accordance with certain conditions of the
permit. Rather, we believe that a finding of incompleteness should
be firmly grounded in a comparison between the information and
data supplied by the permittee, on the one hand, and the information
requirements established for a modification request of the appropriate
class, on the other.

Viewed in context, Section 270.42(b)(7)’s use of the term “incom-
plete” is most reasonably understood with reference to the required
contents of a Class 2 modification request, as set forth in 40 C.F.R.

application.” The deficiencies are described as including, but not being limited to,
the four specific deficiencies discussed in the Statement of Basis. Response, at 2.

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654 ENVIRONMENTAL ADMINISTRATIVE DECISIONS

§ 270.42(b)(1). That section states that for a Class 2 modification,
the permittee must submit a request that:

(i) Describes the exact change to be made to the permit condi-
tions and supporting documents referenced by the permit;

(ii) Identifies that the modification is a Class 2 modification;
(iii) Explains why the modification is needed; and

(iv) Provides the applicable information required by §§ 270.13
through 270.21, 270.62, and 270.63.

We agree with Star’s contention that the Region was obliged to,
but did not, substantiate its “incompleteness” allegation by identify-
ing one or more of the information requirements enumerated in Sec-
tion 270.42(b)(1) as being absent from Star’s request.2° Consequently,
were the Region’s denial premised solely on its conclusion regarding
the completeness of Star’s application, we would remand this matter
for further proceedings at the Regional level to determine the com-
pleteness of the modification request by reference to §270.42(b)(1).
However, since we conclude that the Region correctly determined
that the data were sufficient to support a denial of the permit modi-
fication, this will not be required.

B. Adequacy of Star’s Treatment Demonstration

As the proponent of a Class 2 modification, Star was required
to make a satisfactory showing that the modification would comply
with the substantive treatment, storage and disposal standards of
Part 264. See 40 C.F.R. §270.42(b)(7)(ii). This would include, most
importantly, the standard requiring a demonstration of the LTU’s
ability to achieve complete treatment of hazardous constituents with-
in the treatment zone. The record before us discloses, however, that
Star failed to attempt the showing that the regulations demanded
of it.

Star’s March 25, 1991 modification request consisted of a three-
page letter to the Regional Office (addressing, in an extremely abbre-

201In its Response to Star’s Petition for Review, the Region contends for the first
time that Star’s modification request was also incomplete for failure to provide, pursu-
ant to Section 270.42(b)(1)(iv), all of the general and specific Part B information
applicable to land treatment units. Response, at 2. Even if correct, this contention
formed no part of the original basis for the Region’s decision, and we therefore decline
to address it.

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STAR ENTERPRISE, DELAWARE CITY REFINERY 655

viated fashion, certain of the Part B information requirements appli-
cable to land treatment facilities); an updated list of hazardous
wastes proposed for treatment at the LTU; and an updated Part
A application form. Although the Region had access (either directly
or through DNREC)?2! to the data contained in Star’s March 1990
Final Land Treatment Demonstration Report, Star’s modification re-
quest included no reference to the recently concluded demonstration
project, presented none of the data generated during that project,
and made no mention of the LTU’s ability to treat the hazardous
constituents of petroleum refining wastes within the treatment zone.

The modification request thus addressed none of the land treat-
ment demonstration results to which the Region would necessarily
have to refer in its evaluation of the merits of the proposed permit
modification. Star made no attempt to explain why data which on
their face suggested problems with achieving complete treatment
should not be so interpreted. The Region therefore conducted an
independent, de novo review of the data contained in the Final Land
Treatment Demonstration Report and drew supportable inferences
from those data, with which Star now attempts to take issue on
appeal. However, explaining any potentially adverse data was logi-
cally part of Star’s demonstration and, by failing to do so, Star left
the Region free to reach its conclusions based on the administrative
record before it.22

21The Region’s February 1992 public notice of its decision on Star’s modification
request, and the certified index accompanying its Response to Star’s Petition for Re-
view, make clear that the Region considers Star’s Final Land Treatment Demonstration
Report to have been part of the administrative record underlying its decision. It
is, however, not apparent from the appellate record exactly how the Region gained
access to the Report. The Region appears to suggest, in its Response to Star’s Petition,
that Star never furnished the Report (or the relevant portions of the data contained
in the Report) for the Region’s review in connection with the modification request,
and that the Region instead obtained the necessary data from DNREC. We will not
speculate as to whether or not that is so. The question is not material to our decision,
and we piace no reliance on the Region’s assertion. What is clear, in any event,
is that the explanatory material in the Petition for Review was not previously provided
to the Region.

22 A full, informative presentation of Star’s own assessment of the LTU demonstra-
tion results was particularly important owing to the singular procedures that come
into play in the permit modification context. According to 40 C.F.R. §270.42(b), the
Regional Administrator is required to act on a Class 2 modification request within
120 days after receipt of the request, or else the proposed modification becomes “auto-
matically authorized” for as long as 180 days without any further agency action;
and if the Regional Administrator fails or is unable to act on the request during
this initial period of automatic authorization, the proposed modification may, in certain
circumstances, become automatically authorized for the remaining life of the permit.

Moreover, unlike an initial permit application, a modification request does not lead
Continued

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656 ENVIRONMENTAL ADMINISTRATIVE DECISIONS

For purposes of its review, the Region relied principally on the
sampling, analytical and statistical methods specified in the Permit.
In addition, the Region conducted a limited review of a subset of
the treatment demonstration data using alternative statistical proce-
dures that Star had proposed to DNREC subsequent to the issuance
of the Permit, but that DNREC had never approved. After evaluating
Star’s data, utilizing both the analytical procedures dictated by the
Permit and those alternative methods appearing in Star’s subsequent
(December 1989 and May 1990) submissions to DNREC, the Region
concluded that Star had failed to carry its burden of making the
demonstration required by Section 264.272(a). The Region’s findings,
which are explained at length in its Statement of Basis dated Feb-
ruary 12, 1992, can be summarized as follows:

Unsaturated Zone Monitoring Results. Region III con-
cluded that, during the land treatment demonstra-
tion project, (1) the soil-pore liquids below the treat-
ment zone showed statistically significant increases
in the concentration of benzene, chromium, ethyl
benzene, lead, nickel, and total organic carbon, when
compared with soil-pore liquids from background lo-
cations specified in the permit?3; and (2) the soil
below the treatment zone showed statistically signifi-
cant increases in the concentration of benzenethiol,
cadmium, 1,4-dioxane, ethyl benzene, lead, methyl
chrysene, 1-methyl naphthalene, naphthalene, nickel,
toluene, total organic carbon, vanadium, xylene, and

to the issuance of a draft or tentative decision to which the permittee and other
interested persons may respond with comments or supplemental information. The
Regional Administrator must proceed directly to a final decision approving (with or
without changes) or denying the requested modification, and must do so within a
comparatively short period of time.

If this streamlined decisionmaking process is to function properly, it is imperative
that the Regional Administrator be presented with all necessary information from
the outset of the modification process. The Region is responsible for conducting a
prompt, thorough technical review of the proposed modification for consistency with
the substantive treatment, storage and disposal standards of Part 264, and the permit-
tee is responsible for ensuring that the Region has the information with which to
do so.

23In its Statement of Basis, the Region also referred to a statistically significant
detection of toluene in the soil-pore liquid below the treatment zone during the first
quarter of 1989. See Statement of Basis, at 6. Star responded, in its Petition for
Review, that the detection of toluene cited by the Region resulted from a misunder-
standing or mistranscription of one of the data points tabulated in Star’s Final Land
Treatment Demonstration Report. The Region has not disputed Star’s explanation,
and we therefore conclude that the Region has abandoned its allegation regarding
migration of toluene into the soil-pore liquid during 1989.

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STAR ENTERPRISE, DELAWARE CITY REFINERY 657

zinc, and statistically significant decreases in pH,
when compared with soils from background locations
specified in the permit. See Statement of Basis, at
6-9.
Groundwater Monitoring Results. The Region con-
cluded that, during the land treatment demonstra-
tion project, groundwater samples collected from
wells situated downgradient of the LTU repeatedly
contained significantly higher levels of one or more
of the hazardous constituents arsenic, cadmium, lead,
nickel, and selenium than did groundwater samples
collected from upgradient background wells. See
Statement of Basis, at 10-14.

Star challenges these findings on three distinct grounds. Most
prominently, Star attempts to demonstrate that a majority of the
unfavorable data cited by the Region are mere “artifacts of the sam-
pling, test, or statistical methods in the permit,” and therefore do
not represent genuine evidence of a lack of treatment capability.
Specifically, with respect to the soil-pore liquid findings derived by
the Region from Star's Land Treatment Demonstration Report, Star
asserts that the statistically significant increases in hazardous con-
stituent concentrations detected below the treatment zone (BTZ)
should be disregarded because (1) the statistical procedure described
in the Permit is inappropriate; (2) the background lysimeters (whose
locations are specified in the Permit) were not properly situated so
as to afford a valid basis for statistical comparisons between BTZ
samples and background samples; and (3) two instances in which
the data admittedly reflect hazardous constituent migration eventu-
ally led to the remediation of one of the LTU cells. With respect
to the soil core findings derived from the Report, Star asserts that
two of the organic constituent detections should be disregarded be-
cause they were not “confirmed” during subsequent sampling; that
the remaining organic constituent detections should be disregarded
because the LTU cells in question were later remediated; and that
all of the inorganic constituent detections (as well as the pH de-
creases) should be disregarded because they are based on inappropri-
ate statistical procedures and background soil cores drawn from inap-
propriate locations. As to the groundwater findings, Star asserts that
every instance in which significant levels of hazardous constituents
were detected in the groundwater downgradient of the LTU should
be disregarded because “the statistical technique used to evaluate

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658 ENVIRONMENTAL ADMINISTRATIVE DECISIONS
the data is inappropriate” and the use of an “appropriate” procedure
would indicate that no significant leaching had occurred.

Star unaccountably made none of these arguments to the Region
in the context of its modification request. Nor did Star propose any
changes to remedy the alleged deficiencies with the statistical proce-
dures or location of the background monitors, as it now does in
its Petition for Review.24 Instead, Star left potentially disqualifying
data unmentioned and unexplained throughout the modification re-
quest process, and only presented its own, more benign view of the
data for the first time in the context of this appeal. Star cannot
for the first time on appeal attempt to explain the data appearing
in the treatment demonstration report (to the extent that the data
are harmful to Star’s position) and challenge the Permit provisions
giving rise to the data. See General Electric Company, RCRA Appeal
No. 91-7, at 27 (EAB, Nov. 6, 1992) (information offered by petitioner
after the Region’s issuance of a final permit decision does not, even
if supportive of petitioner’s position, undermine the validity of the
Region’s decision). We agree with the Region’s conclusion that Star
failed to discharge its burden of proof with respect to the effectiveness
of the treatment process in use at the LTU. The conclusion the
Region reached was supported by the record before it, and we will
not disturb that conclusion on the basis of Star’s untimely presen-
tation of alternative analytical and statistical procedures.25

In Star’s second ground for challenging the Region’s conclusion,
Star appears to argue that the Region committed legal error by
misapplying the performance standard embodied in Section
264.272(a). Star’s position, as we understand it, is that the Region
adopted an overly stringent interpretation of the requirement of “com-

24Star’s silence with respect to these issues has persisted since the period when
the demonstration permit was under development at the State level. In the text
of the Permit, DNREC complained of “numerous shortfalls” in Star’s 1988 permit
application and stated that “the primary problem with the [application] is that Texaco
[i.e., Star’s predecessor, Texaco Refining and Marketing Inc.] hasn’t specified the oper-
ating parameters to be used during the Land Treatment Demonstration. Texaco has
relied on the Department to write provisions into this permit.” Permit §IJI-A.1.c, at
II-2.

25We note that in connection with Star’s groundwater monitoring results, which
the Region evaluated (and found unsatisfactory) both under the statistical and analyt-
ical procedures stipulated in the Permit and under alternative procedures suggested
to DNREC in 1989 and 1990, Star urges re-evaluation of the data under yet another
statistical procedure. For the same reason that we decline to order a re-examination
of the unsaturated zone monitoring data under newly proposed analytical procedures,
we are also unwilling to order a third statistical analysis of the groundwater monitor-
ing data.

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STAR ENTERPRISE, DELAWARE CITY REFINERY 659
plete” transformation, degradation or immobilization of hazardous
constituents, and that the Region proceeded to evaluate the perform-
ance of Star’s LTU during the demonstration period against an un-
warranted standard requiring virtual perfection. According to Star,
an LTU owner or operator need only “show that the unit can success-
fully treat the waste and * * * take appropriate remedial actions
on those occasions when there is a failure of the unit.” Petition
for Review, at 2. Star claims that it satisfied the regulatory standard,
as so formulated, because “[a]ll of the many successful applications
of waste which were completely treated prove that the unit can com-
pletely degrade, transform and immobilize the waste.” Id.

For several reasons, this argument falls well short of demonstrat-
ing clear error on the part of the Region. As an initial matter, a
conclusion that Star has documented “many successful applications
of waste which were completely treated” does not suggest that there
may not have also been many unsuccessful applications. To minimize
the number of unsuccessful applications requires the acceptance of
Star’s broad challenge to the analytical methods specified in the Per-
mit and the data generated thereunder, a challenge that we have
already rejected. Although we may assume, without deciding, that
the applicable standard does not require a perfect record of unit
performance during the demonstration period, the extensive record
of apparent hazardous constituent migration from the Delaware City
LTU cannot, under any reasonable construction of the language of
the regulation, be deemed to have established a successful treatment
demonstration. We also reject Star’s suggestion that the remediation
of admittedly defective components of an LTU tends to support, rath-
er than undermine, an attempt to demonstrate complete treatment
of hazardous wastes. As the Region correctly observes in its response
to Star’s petition, “(rlemedial response actions are not intended to
be a routine part of the LTU’s waste management strategy and oper-
ations. * * * Star’s repeated remediation of cells, over time, is sug-
gestive of Star’s failure to demonstrate the LTU’s ability to completely
degrade the applied waste * * * within the treatment zone * * *.”
Response, at 3.

Finally, Star argues that the Region should have deferred to
DNREC’s order of February 8, 1990, which extended the LTU permit
so as to allow continued application of waste pending DNREC’s re-
view of the Final Land Treatment Demonstration Report. According
to Star, this order was necessarily based on a finding by DNREC
that Star had already demonstrated the LTU’s ability to degrade,
transform or immobilize hazardous constituents of the applied waste

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660 ENVIRONMENTAL ADMINISTRATIVE DECISIONS

within the treatment zone. Star further claims that this implicit
“finding” is entitled to dispositive weight because “these are state
regulations * * * [and] it is Delaware’s interpretation and not the
EPA’s that is controlling.”

The argument is meritless. Star’s modification request sought
federal approval for land disposal of HSWA-regulated wastes, to
which Delaware’s regulations do not extend. The proposed modifica-
tion was requested pursuant to the federal regulation governing per-
mit modifications, 40 C.F.R. § 270.42, and that regulation called for
an evaluation of the proposed modification for compliance with “the
appropriate requirements of 40 CFR part 264”; denial of the request
was, therefore, based on Star’s failure to demonstrate compliance
with the applicable federal (not State) regulatory standard. Moreover,
the DNREC order on which Star relies does not contain the “finding”
that Star attributes to it. On the contrary, although the DNREC
order is generally complimentary of the LTU’s performance as re-
flected in an interim report by Star, one of the main purposes of
the order was to delay a definitive evaluation of the unit’s perform-
ance pending submission and evaluation of the Final Land Treatment
Demonstration Report. The order states that DNREC will require
six months to review the final demonstration report, and that only
then will DNREC formulate a “tentative decision” regarding the unit’s
qualification for full permit status. Star’s argument for review based
on the contents of DNREC’s February 1990 order is, accordingly,
rejected.26

III. CONCLUSION
For the foregoing reasons, the Region did not clearly err by
denying Star’s Class 2 modification request. The petition for review
is therefore denied.
So ordered.

26 In response to this argument, the Region solicited a memorandum from DNREC
in which DNREC disputes the contention that its February 1990 order was intended
as a finding that Star had already accomplished a successful treatment demonstration
for the LTU. We do not regard this document as a part of the administrative record
of this permit denial, and we have therefore not considered it in reaching our decision.
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