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(Region's Response to Comments, at 1-2, Exhibit B in Appendix supporting Petition for Review.) In view of the Region's reference to the omnibus provision, the designation of the UST sites as “Areas of Concern" could arguably be viewed as the Region's shorthand method of indicating that at least a preliminary investigation of those areas is necessary to protect human health and the environment.

It is not enough, however, for the Region to simply make a finding that a corrective action measure is necessary to protect human health and the environment. To justify an exercise of its omnibus authority, the finding must have a sufficient factual basis in the record. In this regard, we find the Region's response to comments to be inconsistent with the permit. Sandoz has described the steps it has taken under State supervision to remedy releases from the USTs at issue here, and the Region has not disputed Sandoz' account. When Sandoz raised those State-supervised remediation efforts during the comment period, the Region, in its response to comments, stated that such efforts "will be accepted." (Region's Response to Comments, at 2 and 7, Exhibit B of Appendix supporting Petition for Review.) The federal portion of the permit nonetheless requires Sandoz to investigate these units as part of the RFI. To correct this inconsistency, we are remanding this issue to the Region so that the Region may supplement its response to comments on the draft permit. On remand, the Region should provide a properly supported finding that the required UST site investigations are necessary to protect human health and the environment, and specifically address why the remedial steps already taken by Sandoz are insufficient. Alternatively, the Region may determine that Sandoz' past remedial efforts are adequate to protect human health and the environment for some or all of the units at issue and adjust the permit accordingly.

C. Action Levels

Under the permit, action levels will be used to trigger a Corrective Measures Study (CMS), but these levels will not be incorporated into the final permit until after Sandoz completes the RFI. Sandoz believes that the action levels should be set in the final permit before it is required to perform the RFI. Sandoz argues that the absence of specific, numerical action levels in the final permit impedes performance of the RFI.

In response, the Region states that the RFI only requires the comparison of actual contamination levels to background levels, and that the absence of action levels in the permit does not hamper

Sandoz' ability to make this comparison. The Region argues that it is appropriate to require a permittee to identify contamination based on background levels, leaving it to the Region to then specify the releases that require remediation.

On July 27, 1990, the Agency proposed a comprehensive set of regulations for the implementation of RCRA § 3004(u), the Subpart S proposal. See 55 Fed. Reg. 30798 (July 27, 1990). The Subpart S proposal constitutes the Agency's most recent, comprehensive statement of its views regarding corrective action under RCRA § 3004(u). The preamble to the Subpart S proposal makes clear that action levels should be specified when the permit is first issued. For example, at one point in the preamble, the Agency states:

Action levels will, whenever possible, be incorporated
in the permit. The Agency believes it is advantageous
to identify action levels in the permit so that the
public and the permittee will know in advance what
levels will trigger the requirement to conduct a CMS.
This approach also minimizes the need for permit
modifications later in the process, which could delay
ultimate cleanup.

55 Fed. Reg. at 30814. In another passage, the preamble contains the following statement:

Requirements for the remedial investigation would
be specified by the Agency in a schedule of compli-
ance in the facility's permit. The schedule would typi-
cally identify the SWMUs and environmental media
that required more detailed investigation as well as
the types of investigations required; it would also
typically require the owner/operator to develop a plan
for conducting these investigations. The permit would
also include "action levels" for specific constituents
in specific media under investigation. If subsequent
investigation indicated that these action levels had
been exceeded, a Corrective Measure Study could be
required by the Agency.

Id. at 30810.

It is certainly conceivable that, in certain cases for site-specific reasons, a Region will be justified in deviating from this approach, but Region II has not offered any site-specific reasons for such a

deviation here. On remand, the Region should explain why a deviation from the approach delineated in the Subpart S proposal is appropriate in this case. Alternatively, if the Region determines that the permit should be revised to include action levels, it should adjust the permit accordingly.

D. The RFI Requirements

Sandoz argues that, under the corrective action program developed by EPA, an RFI is performed only if the Agency determines, based on evidence obtained in the RFA, that releases of hazardous wastes or hazardous constituents from a SWMU have occurred or are likely to occur in the future. Sandoz believes that the RFA performed by the Region in this case was inadequate to justify many of the corrective action requirements because it does not show that a release has occurred or is likely to occur from certain units. Sandoz also argues that, because the information obtained from the RFA was inadequate, the Region was forced to rely on boilerplate requirements that have been designed to apply to every type of treatment, storage, and disposal facility regulated under RCRA. Sandoz argues that such requirements are contrary to EPA's policy favoring phased, site-specific corrective action requirements that reflect the unique characteristics of regulated facilities.

The Region disputes the assertion that the RFI requirements in the permit are "generic." It gives instances in which it tailored the requirements to site-specific conditions. It also argues that there is nothing wrong with certain boilerplate requirements, and that to preclude the Agency from using such requirements would be imprudent given the number of facilities for which corrective action is required and the limited resources of the Agency. The Region points out that the RFI Management Plan, which is a component of the RFI work plan, accommodates the need for site-specific tailoring.

To the extent this issue is a restatement of the first issue discussed above concerning the adequacy of the RFA (see note 5), we conclude that the issue has not been preserved for review for the reasons given above. But the Petition raises two additional points that need to be addressed. Sandoz' first point is that the Agency does not have authority to require an RFI for an area unless it has definitively determined that a release has occurred or is likely to occur in the future. In other words, Sandoz believes that the Agency does not have authority to require an investigation of a suspected release. It is well established, however, that the Agency does

have authority to require at least a preliminary investigation where it is likely that hazardous constituents have been released, even if there is no definitive confirmation of the release. 10

The second point that needs to be addressed is Sandoz' assertion that the permit imposes boilerplate RFI requirements that are not tailored to site-specific conditions at the facility. Sandoz is correct that corrective action requirements should be tailored to site-specific conditions at the facility. See American Cyanamid Company, RCRA Appeal No. 89-9, at 7 (August 5, 1991) ("EPA guidance documents emphasize the importance of tailoring RCRA corrective action requirements to site-specific conditions in order to avoid imposing unnecessary or inappropriate burdens upon the permittee."). A permit must contain "some minimum measure of site-specificity to avoid imposing unnecessary requirements on the permittee." Id. at 9 n.19. In this regard, the Region represents that, based on site-specific data, it eliminated from its list of SWMUS and AOCs requiring investigation a septic tank and some sand filter beds. Moreover, as the Region correctly points out in its Response, the Region concluded for sitespecific reasons that a

full RFI for all media is not required for any of
the SWMUS or AOCs. Soils and ground water inves-
tigations are required for six of the SWMUs/AOCs;
soil investigations only are required for five of the
SWMUs/AOCs; no investigation is required as to
SWMU #10, the container storage area.

(Region's Response to Petition, at 19 n.8.) In light of these representations, which are supported by the record, we conclude that the permit as written has the requisite minimum measure of site-specificity. Accordingly, review of this issue is denied.

10 See Shell Oil Company, RCRA Appeal No. 88-48, at 6 (March 12, 1990); Marathon Petroleum Company, RCRA Appeal No. 88-24, at 3-4 (November 16, 1990); see also, 40 CFR §270.14(d)(3) (Region may require a permit applicant to conduct verification monitoring where necessary to fill data gaps and to allow Region to make initial release determination); 52 Fed. Reg. 45,788-89 (December 1, 1987) (same). Early Agency guidance on corrective action, and permit appeal decisions based thereon, state that a mere "suspected" release is sufficient to require further investigation. See e.g., RCRA Facility Investigation Guidance, at p. 1-6 (Interim Final; EPA Office of Solid Waste, May 1989); Shell Oil, supra. The more recent Subpart S proposal would authorize the required remedial investigations if the Agency determines that hazardous constituents are "likely to have been" released from a SWMU. 55 Fed. Reg. 30874 (July 27, 1993) (§ 264.5 10) (emphasis added).

E. Unreasonable Time Frames

Sandoz argues that the final permit establishes unreasonable time frames for action by Sandoz. Sandoz represents that it cannot complete the actions required by the final permit within the time frames established in the permit because: (1) the time frames do not allow enough time for customary laboratory turn-around times; (2) Sandoz needs more time to review drafts of submissions prepared by its consultants; and (3) the pace of Sandoz' preparation of the various plans and submissions required by the final permit will be contingent in part on timely review and response by the NJDEP and EPA. The Region responds that the final permit allows for modification of the compliance schedule when unforeseen circumstances necessitate a change.

We note that, when this issue was raised during the comment period, the Region responded by revising twenty-three deadlines in the permit to give Sandoz more time to fulfill its obligations under the permit. (Region's Response to Comments, Exhibit B to Appendix supporting Petition for Review, at 10-13.) The Region's obvious willingness to accommodate Sandoz' concerns about time constraints, as evidenced by its revisions to the draft permit, convinces us that Sandoz' concerns are adequately addressed by the permit provision allowing for modification of the compliance schedule when unforeseen circumstances require a change. Accordingly, review of this issue is denied.

III. CONCLUSION

The issue relating to the adequacy of the RFA has not been preserved for review, and review is accordingly denied. The issues relating to the former UST sites and to action levels are hereby remanded to the Region for further proceedings consistent with this order.11 All contested conditions and non-severable conditions (to be identified by the Region) shall remain stayed on remand. The Region should give public notice of this remand under 40 CFR § 124.10. Appeal of the remand decision will not be required to exhaust administrative remedies under § 124.19(f)(1)(iii) of the rules. Review of the

11 Although § 124.19 of the rules contemplates that additional briefing will be submitted upon the grant of a Petition for Review, a direct remand without additional submissions is appropriate where, as here, it does not appear that further briefs on appeal would shed light on the issues to be addressed on remand. See, e.g., In re Chemical Waste Management, Inc., RCRA Appeal No. 87-12, at 5 (May 27, 1988).

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