BEFORE THE

IL BOARDRECEIVED
RECEIVED
RECEIVED
RECEIVED
RECEIVED

BEFORE THE

IN THE MATTER OF:

AMENDMENTS TO REGULATI4

PETROLEUM LEAKING

UNDERGROUND STORAGE TANKS

(35

ILL. ADM. CODE 732)

(Rulemaking

—

Land)

IL BOARDRECEIVED

CLERK’S OFPV~!

MAR27 2001

STATE OF ILu~NuIS

Pollution Control Board

NOTICE OF FILING

To: Dorothy Gunn, Clerk

Illinois Pollution Control Board

James

R. Thompson Center

100 West Randolph, Suite 11-500

Chicago. IL 60601

(Original and Nine Copies)

(VIA FEDERAL

EXPRESS)

Robert T. Lawley, Chief Legal Counsel

Department ofEnergy and

Natural Resources

524

South Second Street, Suite 400

Springfield, IL 62701-1787

(VIA 

FIRST CLASS MAIL)

Matthew J. Dunn, Chief

Environmental Bureau

Office ofthe Attorney General

James R. Thompson Center

100 West Randolph,

12th

Floor

Chicago. IL 60601

(VIA FIRST CLASS MAIL)

Thomas V. Skinner, Director

Illinois Environmental Protection Agency

1021 Grand Avenue, East

POBox 19276

Springfield, IL 62794-9276

(VIA FIRST CLASS MAIL)

All Other Persons on the Attached Service List

(VIA FIRST CLASS MAIL)

NOTICE OF FILING

PLEASE TAKE NOTICE that I have today filed with the Office ofthe Clerk ofthe

Pollution Control Board the Pre-Filed Testimony ofStephen A. Beverly and Richard R.

Butterworth, Jr., and the Appearance ofStephen A. Beverly and Richard R. Butterworth, Jr., in

the

above-titled matter, copies ofwhich are hereby served upon you.

UNITED STATES OF AMERICA,

DEPARTMENT

OF THE NAVY

By:

e of its

DATED: March

2001

Stephen A. Beverly

Associate Counsel (Environment)

Department of the Navy

Southern Division

Naval Facilities Engineering Command

2155 Eagle Drive

P 0 Box 190010

North Charleston, South Carolina 29419-9010

Telephone: (843) 820-5708

Facsimile: (843) 820-5985

)

THIS FILING IS SUBMITTED ON RECYCLED PAPER

RECEIVED

CLERK’S OFFICE

THE ILLINOIS POLLUTION CONTROL

MAR 27 2001

BEFORE

STATE OF ILLINOIS

INTHE MATTER OF:

)

Pollution Control Board

)

AMENDMENTS TO REGULATION OF

)

RO1-26

PETROLEUM LEAKING

)

(Rulemaking

Land)

UNDERGROUND

STORAGE TANKS

)

(35 ILL. ADM. CODE 732)

)

______________________________________________________________ 

)

APPEARANCE

I hereby file my appearance in this proceeding, on behalf ofthe United States of

America, Department ofthe Navy.

UNITED

STATES OF AMERICA,

DEPARTMENT

OF THE NAVY

By:

~ Stephen A

DATED: March

cDL,,

2001.

Stephen A. Beverly

Associate Counsel (Environment)

Department ofthe Navy

Southern Division

Naval Facilities Engineering Command

2155 Eagle Drive

POBox

190010

North Charleston, South Carolina

29419-9010

Telephone: (843) 820-5708

Facsimile: (843) 820-5985

THIS FILING IS SUBMITTED ON RECYCLED PAPER

RECEIVED

CLERK’S OFFICE

MAR 2 7 2001

BEFORE THE ILLINOIS POLLUTION CONTROL BOARD

STATE OF ILLINOI5

Pollution Control Board

IN THE MATTER OF:

AMENDMENTS TO REGULATION OF

PETROLEUM LEAKING

UINDERGROUIND STORAGE TANKS

(35

ILL. ADM. CODE 732)

)

RO1-26

(Rulemaking

—

Land)

)

APPEARANCE

I hereby file my appearance in this proceeding, on behalfofthe United States of

America, General Services Administration.

UNITED STATES OF AMERICA,

GENERAL SERVICES ADMTMSTRATION

,~ N

By:

~cha d R.

Butterworth, r.

DATED: March

____,

2001.

Richard R. Butterworth, Jr.

Senior Assistant General Counsel

General Services Administration

Office of General Counsel

1800 F Street, NW

Washington, DC 20405-0002

Telephone: (202) 501-4436

Facsimile: (202) 501-1944

THIS FILING IS SUBMITTED ON RECYCLED PAPER

RECEIVED

CT FRK’S

OFFICE

MAR 2~7 2001

BEFORE THE ILINOIS POLLUTION CONTROL BOARD

SIAiE QF ILLIINOIS

IN THE MATTER OF:

)

Pollution Control Board

)

PROPOSED AMENDMENTS TO REGULATION)

RO1-26

OF PETROLEUM LEAKING UNDERGROUND

)

(Rulemaking

Land)

STORAGE

TANKS,

ILL.

ADM.732

)

PRE-FILED TESTIMONY OF STEPHEN

BEVERLY

Good Morning, my name is Stephen Beverly. I currently serve as Senior

Environmental Counsel for Southern Division, Naval Facilities Engineering Command, in

Charleston, South Carolina. My primary areas ofresponsibility include providing legal

counsel to the personnel in Southern Division’s environmental department on matters

involving compliance with applicable federal and state laws and regulations as well as

Department ofthe Navy (‘Navy’) and Department of Defense (“DoD”) policies pertaining

to environmental compliance, environmental restoration and property disposal matters.

Southern Division serves as the facilities engineering and public works provider for

all naval shore establishments within a 26 state Area of Responsibility (AOR) which includes

the State of Illinois. My testimony here today was developed in consultation with other DoD

components. On behalf ofthe Navy and the other military services, I want to thank you for

the opportunity to provide our views on the Agency’s proposed revisions to the Part 732

Petroleum Underground Storage Tank (LUST) regulations.

On February 16, 2001, the Agency filed a Motion to Amend the proposed LUST

rulemaking in order to provide relief for the federal community from the specific

requirement that No Further Remediation (NER) letters be “perfected” by recording them

in county land records. As will be discussed in testimony to be provided shortly by a

representative ofthe General Services Administration, that recording requirement was

problematic for federal landholding entities as we do not generally “own” the federal lands

on which we operate and therefore have no legal authority to record restrictions on their

future use. My focus today is to indicate our support for the Agency’s Motion to Amend with

minor amendments which I have just provided as Exhibit 1. I appreciate this Board’s

willingness to listen to our thoughts in that regard.

Preference for Risk-Based Cleanups

Southern Division’s experience at sites throughout our AOR is that under appropriate

circumstances, risk-based site cleanups can be a protective, timely and cost-effective

alternative

to more extensive and potentially cost prohibitive remedial measures which may,

or may not, ultimately permit unrestricted future land uses. We wish to have

the flexibility afforded by this approach for LUST sites in Illinois where we and the Agency

agree that use ofa risk-based cleanup approach will protect human health and the

environment and is practicable. Unfortunately, unless the changes proposed in the recent

Motion to Amend brought forth by the Agency are adopted, our future ability to do so will be

jeopardized since the existing regulations in Subpart G of Part 732 contain specific deed

recordation requirements which we are legally precluded from satisfying. All that we in the

federal community seek is the same ability which is being afforded those in private industry

to be able to close out our LUST sites with full Agency concurrence utilizing the concept of

risk-based remediation.

II. Why an exception should be made for federal facilities

Because we are asking this Board to adopt an alternative approach to the NER

recordation requirement contained in the existing LUST regulations, we understand that we

need to explain to you how we will ensure the future maintenance of whatever land use

restrictions such a recorded instrument would otherwise have lawfully imposed.

In lieu ofrecording NFR letters containing specific land use restrictions, we have

proposed

to the Agency use of a tn-party Memorandum of Agreement (MOA) between the

federal landholding agency, U.S. EPA Region

and the Agency. We have executed such

agreements in other U.S. EPA Regions and more importantly, this Board recently approved

of their use under the amended TACO Regulations as a form ofinstitutional control.

Under such facility specific MOAs, DoD facilities within the State would commit

to, among other things, certain periodic site inspection and reporting requirements so as to

ensure that our facility personnel adequately maintain those site remedy-based LUCs

necessary for long term protection of human health and the environment. I have provided as

Exhibit 2, a model MOA for your consideration. The provisions contained within this model

were negotiated between DoD, U.S. EPA Region

and Agency representatives and are

consistent with DoD policy promulgated in January 2001 on the establishment of land use

controls in consultation with appropriate environmental regulatory agencies. I have also

brought with me today and have marked as Exhibit 3, several copies ofthat policy should the

Board desire to review the same.

We believe the MOA concept provides a sound alternative approach to requiring NFR

recordation. Moreover, the MOA makes clear that compliance with its provisions is a

prerequisite for continued validity ofthose NFR letters which would be issued by the Agency

for the sites which would be encompassed under such an agreement.

III. Conclusion

In conclusion, we are proposing with full Agency concurrence, that the Part 732

LUST regulations be revised to exempt federal facilities from the aforementioned

NER recordation requirement subject to a given facilitys execution of, and subsequent

compliance with, a tn-party LUC MOA with the Agency and U.S.EPA.

Respectfully submitted,

UNITED STATES OF AMERICA,

DEPARTMENT OF THE NAVY,

By:

One of its Attorneys

/4-

Stephen A. Beverly

Senior Environmental Counsel

Southern Division,

Naval Facilities Engineering Command

2155

Eagle Drive

North Charleston, S.C. 29406

Telephone: (843) 820-5708

RECEIVED

CT ERK’S OFFTCE

MAR 272001

BEFORE THE ILLINOIS POLLUTION CONTROL BOARD

Pollution

STATE OF

Control

ILLINOIS

Board

IN THE MATTER OF:

)

AMENDMENTS TO REGULATION OF

)

RO1-26

PETROLEUM LEAKING UNDERGROUND )

(Rulemaking

Land)

STORAGE TANKS; 35 ILL. ADM. CODE

)

732

)

PRE-FILED TESTIMONY OF RICHARD R. BUTTERWORTH, JR.

Good morning, my name is Richard R. Butterworth, Jr. I am a Senior Assistant General

Counsel in the Office ofGeneral Counsel, General Services Administration (“GSA”). My

testimony is provided on behalfofthe GSA.

I have been an employee ofthe GSA for 13 years, and have been in my current role for

the past five years. In addition to other duties, I serve as chiefcounsel for the Office ofProperty

Disposal within the Public Buildings Service, GSA. In that capacity, I am responsible forpolicy

development, legislative initiatives,

regulatory interpretation and adoption, overall program legal

review, and for individual

real property disposal actions.

I. Background

To give some background to my testimony here today, on February 16, 2001, the IEPA

(“Agency”), filed a Motion to Amend its proposed rulemaking filed with the Board back on

December

6, 2000, wherein certain amendments to the Part 732 LUST regulations were proposed

for Board adoption. That Motion seeks to amend Subpart G, Sections 732.702 through 732.704

to adopt

language similar in many respects to that adopted by the Board in its Rulemaking ROO-

19(A) which made certain amendments to the TACO rules set forth in Part 742. More

specifically, the Agency’s Motion would provide an exemption for federal landholding agencies

from the requirementto “perfect” all No-Further-Remediation (“NFR”) letters issued by the

Agency by recording the same in the cognizant County Recorders Office. For any federal

installation in the State to be entitled to this exemption, it must enter into a Memorandum of

Agreement (“MOA”) with the Agency which would contain certain periodic site inspection and

reportingrequirements. I am here today to

testif~i in support ofthat Motion to Amend and to

explain why such reliefis necessary.

II. Why Federal Installations Need a Recording Exemption

Federal Installations in Illinois need the proposed recording exemption because unlike

privately-owned

facilities, certain legal limitations exist on the ability of federal agencies to deed

record land

use restrictions on federal properties to be retained in federal hands. To understand

the

scope of federal agency real property management authority, it must first be recognized that

those real properties which the various federal agencies occupy or otherwise control are not

“owned” as such by them, but rather by the United States as sovereign. This is simply because

the ultimate authority to manage all federally-owned land rests with Congress pursuant to the

Property

Clause ofthe U.S. Constitution (Article IV, Section 3) and Congress has not chosen to

assign ownership over federal lands to any particular agency or agencies.

GSA derives its particular authorities to manage and dispose offederal lands from the

Federal Property and Administrative

Services Act of 1949, as amended, the same statute under

which

GSA was established. See 40 U.S.C.

§§

471 et. seq. (hereafter “Property Act”). One of

the principle purposes ofthe Property Act was to provide economies of scale and consolidation

ofresources and authorities within the Federal Government. One ofthose key areas of

consolidation was the authority to manage and dispose ofreal property. Specifically, GSA was

authorized to ensure the effective utilization

of“excess” realproperty (property which a

landholding agency has detennined is no longer needed to accomplish its particular mission) and

the efficient disposal of“surplus” real property (excess property for which there is no other

federal agency need). See 40 U.S.C.

§§

483, 484. GSA is authorized to provide these functions

for

all federal executive agencies. Therefore, unless an agency has specific authority to dispose

of realproperty, once a landholding agency has determined that the property is excess to its

needs, it must turn the property over to GSA for disposition.

The Department ofDefense (“DOD”) is in a unique situation in the Federal Government

in that

it has a specific delegation ofthe same property and management functions as GSA but

only with regard to closing or realigning base properties identified under one ofthe various Base

Closure and Realignment (“BRAC”) statutes passed by Congress in recent years. Therefore, in

those limited circumstances, DOD can act as both the

landholding and disposal agency

effect, stepping into the shoes ofGSA.

While it is true that Congress has chosen on other occasions to grant certain specific

property management authorities to other federal agencies, including the DOD, the scope of

those authorizations has been very limited. For example, federal agencies have the general

authority to grant utility easements orright-of-ways on retained lands to third parties. However,

the Department

ofJustice has previously determined that the authority Congress provided to

agencies to execute these types ofinstruments does not extend to other broader disposals of

property interests. Consistent with the provisions ofthe Property Act, GSA views the deed

recording

ofspecific land use restrictions (e.g., future industrial use only limitations orwell

installation prohibitions) as constituting a “disposal” of a federal property interest. Thus, only

GSA and not individual landholding Agencies can impose such restrictions on active installation

properties.

GSA

has chosen not to delegate the authority to landholding agencies to record land use

restrictions that would run with the land in perpetuity for three principal reasons. First, we

believe

itwould be contrary to Congressional desires as to who should hold property disposal

authority. In the case of DOD, the factthat Congress has only chosen to expressly grant that

agency full property disposal authority in the context ofBRAC real estate actions clearly

indicates that it

was not their intent for DOD to have those same authorities in the context of

managing active base properties. Secondly, GSA believes that recorded land usage restrictions

should only be agreed to in the context ofan actual property disposal, so that such restrictions

can truly reflect the risks associated with known site conditions in the context ofa particular

contemplated reuse ofthe property rather than some hypothetical use in the future. At the time

ofproperty disposal, GSA or any landholding agency with disposal authority could review the

institutional

controls previously set in place during the landholding agency’s use ofthe property

and determine, with appropriate regulatory agency input, whether those controls should remain

and become

permanent use restrictions orbe modified in order to be truly protective in the

context ofthe pending reuse. And finally, GSA strongly believes there are other effective means

to impose use restrictions on federal property without requiring that those restrictions be

recorded. An example would be the MOA concept developed by DOD and proposed to the

Agency and which has now been incorporated into the new TACO rules.

We believe it important to point out that in addition to those specific site inspection and

reporting requirements which the aforementioned agreements might encompass, two federal

laws, namely CERCLA and NEPA, independently impose certain pre-property disposal related

notice obligations on federal landholding agencies not similarly imposed on private entities. For

example, CERCLA Section 120(h)(3) requires federal agencies disposing ofsurplus properties to

specifically state in the form ofa deed covenant that all remedial action necessary to protect

human health and the

environment with regard to identified hazardous substance activity has

been taken prior to conveyance. The United States also commits to return to the property to

correct any otherhazardous substance condition from prior federal activity that was not

previously identified.

Secondly, federal landholding agencies must comply with the National Environmental

Policy

Act (“NEPA”) in the context ofmaking closure and “excessing” decisions. Under NIEPA,

federal agencies are requiredto assess potential impacts to the “quality ofthe human

environment” from the proposed federal closure and disposal actions. Thus, if any institutional

controls would be affected by an agency’s decision to close a particular facility or to declare

property

excess, the landholding agency must evaluate those impacts and allow public comment

on that evaluation. GSA must also comply with NEPA for our disposal actions and, if there is

contamination in place on property GSA is disposing, we routinely notify the appropriate State

regulatory agency to obtain their input on the need for land use restrictions on the property.

In light

ofthe foregoing, GSA urges the Board to adopt the amendments reflected in the

Agency’s February 16, 2001 Motion to Amend. GSA believes that these amendments will

adequately address the federal community’s concerns regarding limitations on our ability to

perfect NFR letters through deed recordation while establishing a process for ensuring federal

agency

maintenance with JEPA oversight ofall LUST site related land use controls. Under this

amendment, an NFR letter would be deed recorded if and when any site to which they pertained

was transferred by deed from the federal government to any non-federal entity.

In conclusion, we at GSA support the Agency’s proposal to modify the proposed LUST

rules to take into account the unique authorities -provided to, and responsibilities imposed upon,

federal agencies’ management of federal real property. I appreciate the opportunity the Federal

Government has had to work with the Board and the Agency to resolve these issues and I thank

you for the opportunity to present this testimony to you today.

Office

ofthe General Counsel

General Services Administration

1800

F

Street, N.W., Room 4129

Washington, D.C. 20405

(202)

501-4436

CERTIFICATE OF SERVICE

The undersigned hereby certifies that he has served the Pre-Filed Testimony ofStephen A.

Beverly and Richard R. Butterworth, Jr., and Appearance ofStephen A. Beverly and Richard R.

Butterworth, Jr., copies ofwhich are attached hereto, upon the attached Service Li~t via First

Class U.S. Mail, postageprepaid, at North Charleston, South Carolina, this ~~‘d~y

of March

2001.

z4L

Step en A. Beverly

Associate Counsel (Environment)

Department

ofthe Navy

Southern Division

Naval

Facilities Engineering Command

2155

Eagle Drive

POBox 190010

North Charleston, South Carolina 29419-9010

Telephone: (843) 820-5708

Facsimile:

(843) 820-5985

THIS FILING IS SUBMITTED ON RECYCLED PAPER

~.O

000 Cl c~

—

0ClCl000

¼OCl0~O¼~¼O~O

0Cl00000

C.0

¼0

¼0\O

\0 ~O

~.O

ooor—o

C—

0ClCl00

~.O~0~OC.0

—

.~)

—

~

-6

—~

‘‘

-~

O~C)

.‘

OC)’-

—

C.I U~QQQU

U~Q

—

—

—

0~0

ClC)

~I)0

C)~

ClC)~

ZC~i

—

0 ~

ClQ

0In0000Cl0

—

————

— -~ —

—

I~0~

—

c~U~

-6

-~-~

C.)

—~

CCC)

——

C-a

~ 0~

.~z

UU~~

0Cl)

C)1

C/iC)

2~C)

Ci)

~C)Ci)

U)>

Cl 00

0 ~ N —

In Cl

ClN—aCi)00In’.0In

C.)

—

~C)

—Cl)

~ .~ .~

0 0~i~

0Cl~

00-0

C)C~

-a0

Ci) ~

C) C~

z~0

C.)

C-)

-~

oC~

C.)

—.  

~-dQ

Wa~

.

OC)

ClC)

Cl)

00~

—~——Cl)

C.)

C)C)

~ou

——

4~0.a

~ .~

.~ •~ ~

Cl)

~C)~C)

~C)0

~~C)O

-a

Ci)

~C)0

Ci)b~

~Ci)~

•0

C.)

4-~

—

O0C)

C~~U

.~ .~

-a

~~bIn

~Cl5

~ ~-4 -0~

.- I-

~z~j

I-

-~-

~C)C)

C~0

~C0~

Ci)

Cl~Ci)

Ci)~

00 In ——

0Cl00

In ‘.0

Cl00Cl

‘.0

C-

‘.0

ONIn

—

‘.0

—

‘.0

0 In

000

‘.0,.0’.0

-00

0’

ClO

‘.o’.o

ClO

‘.0’.0

0000

~‘.O0

Cl 0

‘.0 ‘.0 Cl

-0

If)

I-

Ci)

-0

I-

Cl) CC

—

~I.

C)C)

-0

~~eU)

-a

--a