facility in East Hanover, New Jersey.1 Sandoz challenges: (1) the adequacy of the RCRA Facility Assessment (RFA) and the permit conditions based thereon; (2) the regulation of five "Areas of Concern," where underground storage tanks were once situated; (3) the Region's failure to specify action levels in the permit; (4) the inclusion of generic, boilerplate investigation requirements, as well as requirements for suspected (as opposed to confirmed) releases; and (5) the time constraints imposed by the permit for various activities. As requested by the Judicial Officer, the Region filed a response to the petition for review.2 For the reasons set forth below, we conclude that the first issue listed above has not been preserved for review. With respect to the second and third issues, this proceeding is remanded to the Region for further consideration. On the other two issues, review is denied. I. BACKGROUND In fashioning the permit under review, the Region relied on a RCRA Facility Assessment (RFA) performed by the New Jersey Department of Environmental Protection (NJDEP) in May and June of 1987. The RFA included a preliminary review and a visual site inspection. In addition to the RFA, the Region reviewed an NJDEP Underground Storage Tank Registration Questionnaire for Sandoz, a Construction Plan of Waste Equalization Tanks at Sandoz' facility, a New Jersey Pollutant Discharge Elimination System (NJPDES) permit issued to Sandoz on January 1, 1990, and a surface map of Sandoz' underground tanks. The Region also relied on notes of telephone conversations with Sandoz representatives. On the basis of these materials, the Region issued a draft permit to Sandoz on October 2, 1990. After public notice and comment, a final permit was issued on April 11, 1991. The final permit identifies twelve present and former storage units at the facility as either solid waste management units ("SWMUS") or Areas of Concern ("AOCs").3 Of the twelve, eleven 1The non-HSWA portion of the permit was issued by the State of New Jersey, an authorized State under RCRA § 3006(b), 42 U.S.C. § 6926(b). 2 At that time, the Agency's Judicial Officers provided support to the Administrator in his review of permit appeals. On March 1, 1992, all cases pending before the Administrator, including this case, were transferred to the Environmental Appeals Board. See 57 Fed. Reg. 5321 (Feb. 13, 1992). 3 The permit lists the following seven SWMUS and five AOCs: #1-two clay-lined wastewater lagoons (SWMU) #2-inactive wastewater skimming tank (SWMU) #3-active skimming tank (SWMU) are subject to corrective action requirements under the federal portion of the permit. As part of the RCRA Facility Investigation (“RFI”), the permit requires a soil investigation for eleven units, and a groundwater investigation for six units. II. DISCUSSION Under the rules that govern this proceeding, a RCRA permit 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 40 CFR § 124.19; 45 Fed. Reg. 33412 (May 19, 1980). 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 ***." Id. The burden of demonstrating that review is warranted is on the petitioner. A. The RFA Sandoz first argues that the RFA is incomplete and inadequate, and that the permit conditions based thereon that require corrective action are therefore defective. The Region responds that this issue has not been preserved for review because Sandoz did not raise it during the public comment period even though it was ascertainable at that time. If an issue is reasonably ascertainable during the public comment period, the issue must be raised at that time if it is to be preserved for review. See 40 CFR §§ 124.13 & 124.19(a). Adherence to this requirement is necessary to ensure that the Region has an opportunity to address potential problems with the draft permit before the permit becomes final. In this case, the alleged inadequacies #4-removed underground caustic storage tank (AOC) #6-removed underground fuel storage tank (AOC) #7-removed underground wastewater storage tank (SWMU) #9—three removed underground fuel storage tanks (AOC) #10-container storage area (SWMU) #11-removed above-ground alkaline waste storage tank (SWMU) #12-removed above-ground alkaline waste liquid storage tank The container storage area (#10) is a RCRA-regulated unit operating under the State portion of the permit and is not subject to the corrective action requirements of the federal portion. 4 See In re Shell Oil Company, RCRA Appeal No. 88-48, at 3 (March 12, 1990) ("These rules help to ensure that the Region has an opportunity to address any Continued of the RFA were reasonably ascertainable at the time of the public comment period, but Sandoz did not raise the issue in its comments on the draft permit. See Letter dated November 19, 1990 from Keith E. Lynott to Laura J. Livingston (Exhibit E of Appendix to Sandoz' Petition). The issue has not been preserved for review, and review is therefore denied.5 B. Areas of Concern AOCs 4, 5, 6, 8, and 9 consist of areas where seven underground storage tanks (USTs) were once situated. (AOC 9 contained three separate underground fuel and gasoline tanks.) Sandoz asserts, and the Region does not dispute, that the seven USTs were used to store raw material or fuel and never contained solid or hazardous waste. Sandoz states that four of the fuel oil tanks were leaking when they were removed from the ground, but it represents that: (1) releases from the leaking tanks (with one exception) have not caused contamination at concentrations exceeding NJDEP action levels; (2) Sandoz has appropriately remediated all releases in accordance with its NJPDES Permit and with the oversight of the NJDEP; and (3) any contamination not remediated by Sandoz is encapsulated in a dense glacial till which, according to Sandoz, serves as a protective barrier against migration of any release into the aquifer. Sandoz argues that, for two reasons, the sites of the removed USTs are not SWMUs and therefore do not fall within the ambit of the Agency's corrective action authority under RCRA § 3004(u), which is limited to releases from SWMUS.6 First, Sandoz contends concerns raised by the permit, thereby promoting the Agency's longstanding policy that most permit issues be resolved at the Regional level."); In re Texaco Refining and Marketing, Inc. (Anacortes, Washington), RCRA Appeal No. 89-12, at 3 (Nov. 6, 1990) (same). 5 Our determination that Sandoz failed to preserve the RFA issue extends only to the alleged formal defects in the RFA (e.g., the Region's alleged failure to prepare a separate written report, or to conduct sampling). Sandoz' challenge to the Region's use of the RFA to justify corrective action for potential (as opposed to confirmed) releases is addressed in Section D below. 6 RCRA § 3004(u) provides: Standards promulgated under this section shall require, and a that the USTs contained fuel or raw materials, not solid or hazardous waste. Second, Sandoz argues that, notwithstanding the passive leaks from the tanks, there were never any routine and systematic releases from the tanks that would render the sites SWMUS. Sandoz is correct that the term “solid waste” as defined in RCRA generally does not extend to stored raw materials or fuel. The investigation requirements at issue here, however, are directed to potential releases or spills of the stored materials, not to the materials in their original condition of storage. A spill or release of stored materials into the surrounding area would generally constitute "solid waste" under RCRA. See In re Amerada Hess Corporation, Port Reading Refinery, RCRA Appeal No. 88-10, at 2 (August 15, 1989). Even though a release from a tank to the surrounding area is "solid waste," to invoke RCRA §3004(u) it is still necessary to determine that the area is a "solid waste management unit." The term "solid waste management unit" includes areas contaminated by routine and systematic releases, but not by a one-time, accidental spill or a passive leak. See 55 Fed. Reg. 30809 (July 27, 1990). Sandoz argues that there is no evidence of any routine or systematic releases from the USTs. The Region, however, does not argue that the UST sites are SWMUs, but instead cites the statutory and regulatory omnibus provisions as legal authority for imposing corrective action requirements on non-SWMUS.8 It is well established that RCRA §3005(c)(3) provides authority to require corrective action for certain non-SWMUS. See In re Morton International, Inc. (Moss Point, Mississippi), RCRA Appeal No. 907, at 13-14 (February 28, 1992); In re American Cyanamid Co., RCRA the permit) and assurances of financial responsibility for complet ing such corrective action. 42 U.S.C. § 6924(u) (emphasis added). "The term "solid waste" is defined as: any garbage, refuse, sludge from a waste treatment plant, water RCRA § 1004(27), 42 U.S.C. 6903(27). 8 The statutory omnibus provision reads as follows: Each permit issued under this section shall contain such terms RCRA §3005(c)(3), 42 U.S.C. §6925(c)(3). The regulatory omnibus provision essentially tracks the language of the statute. See 40 CFR § 270.32(b)(2). Appeal No. 89-8, at 13 (August 5, 1991); In re LCP ChemicalsNorth Carolina, Inc., RCRA Appeal No. 90-4, at 3-4 (February 14, 1991). This authority, however, is not unlimited; by its own terms, §3005(c)(3) authorizes only those permit conditions necessary to protect human health or the environment. Accordingly, the Region may not invoke its omnibus authority unless the record contains a properly supported finding that an exercise of that authority is necessary to protect human health or the environment. The Region has arguably made a finding that the basis for invoking Section 3005(c)(3) exists with respect to the UST sites simply by designating them as "Areas of Concern." In the Region's Response to Comments, the Region explains that the term "Area of Concern" is defined in the permit as an area that the Region is regulating under its omnibus authority because of suspected but unconfirmed releases of hazardous waste: Pursuant to the authority granted by Sec. 3005(c)(3) 9 In the Subpart S proposal, the Agency notes that it has interpreted the "routine and systematic" criterion as not including areas where a one-time spill or "passive" leakage has occurred. The Agency then observes that its interpretation has the effect of removing some environmental problems at RCRA facilities from the reach of § 3004(u). The Agency notes, however, that it intends to exercise its authority, as necessary, under the RCRA 55 Fed. Reg. 30809 (July 27, 1990). Sandoz cites National-Standard Company v. Adamkus, 685 F. Supp. 1040 (N.D. Ill. 1988), for the proposition that the Agency's corrective action authority does not extend to non-SWMUS. Adamkus does contain dicta to the effect that Section 3004(u) does not extend to non-SWMUs. Id. at 1050. Because the Region is not relying on §3004(u) as authority for requiring investigations of the UST sites, however, Adamkus is inapposite. |