If you’re interested in the Leaking Underground Storage Tank (LUST) issues of Illinois, you should start by reading the following.
Leaking Underground Tanks: How Big of a Problem Is It?
I’m going to start by wrecking the surprise, I have no idea if the problem with the LUST fund has anything to do with the Illinois Environmental Protection Agency (IEPA) attitude toward the problems they face, or the laws that govern them. I aim to find out. I’ve connected with my State Representative and State Senator. I have meetings set with both.
Let’s start with a recap of high level facts (Download IEPA Budget Here):
- Illinois has 5,500 open LUST incidents.
- The LUST Trust Fund has $77 Million in it.
- The LUST Budget for 2022 has $40 Million Allocated
- In 2021, only $21 Million of the $40 Million budgeted was spent.
- IEPA staff budget is $1.7 Million
What I see here is soil and groundwater contamination is a priority which is important to politicians based on the dollars they allocated to rectify the situation. I have to imagine it’s important to voters because it’s important to politicians. I see an agency which has more dollars to spend than it can actually spend on projects.
Something is wrong with this situation.
Agency Attitude -vs- Law
If agency management has arrived at an attitude toward the Open LUST incidents which is counterproductive to closing them out, their attitude can be changed anytime they want. If the law prescribes how they need to approach the problem, then their hands are tied until the law is changed. Because I don’t know, I can only speculate, but I can compare how another agency at the State of Illinois works; Illinois Department of Transportation (IDOT).
Attitude On Data
In this post we explored how the LUST Database is overstating open LUST incidents because the data has no field telling us when a record is open or closed. This appears to be driven by agency attitude not law. Yet the IEPA has a point if they say they don’t have the resources to clean the database. Their Project Managers could be working full time, handling the open incidents they have.
With the right attitude, IEPA could pay consultants like us to clean this data. We need to call the Responsible Party (RP) anyway to land the client, we might as well return the research we’ve done to make a sale, to clean the database if the data is bad. This could be done without going to bid through a bounty system. Pick a dollar amount for updating a record and pay for whoever brings the accurate data.
They could also go out to bid on this type of work.
Attitude On Bill Paying
This is difficult to pin on the IEPA. The Illinois Comptroller’s office pays the bills. All the politicians share responsibility for the time it takes to get payments to the service providers. Frankly, this is neither attitude or law, unless you include the attitude of our politicians. If you care about healthy vendors serving Illinois priorities, 45 days to pay would be spectacular. Outside of that, paying state bills in 90 days or less is marginally acceptable. Keep in mind, our lines of credit to pay our payroll exclude receivables over 90 days old as being “bad debt”. This complicates our ability to take LUST projects on and pay our Illinois employees.
Attitude On Rates Paying
I believe the rates IEPA pays are driven by agency attitude, not law. They could change the budgets to encourage more service providers to enter the industry. You have to ask, how they come up with the artificial rate ceiling they currently have? How do other agencies at the state do it?
Qualification Based Selection
At IDOT, we have two things IEPA does not. The first is Qualification Based Selection (QBS) which keeps service providers from competing on project cost and instead has us competing on time-to-complete. We are chosen first by being “prequalified” to do the work by a panel of engineers. The second is what’s called an “Overhead Rate”. Overhead rates are determined by a financial audit of our company. We “submit qualifications” on a particular item of a bid letting. We are chosen, we negotiate the time to do the project. The rate to do the project is set by the state and the overhead rate is factored in as a multiplier on top of the rate.
QBS is mandated by law but there is no reason I can think of why it couldn’t be used by IEPA too. We are prequalified by the engineering staff at IDOT for the work we are being asked to do. The best companies doing environmental or engineering work in the state, do work for IDOT using the QBS system.
I see no reason why we couldn’t submit qualifications on a bid letting by IEPA for projects they wanted closed. We could be selected, just like with IDOT, negotiate time and be paid for the project plus our overhead rate.
Project Seed Money
To start a LUST project, a deductible needs to be paid to the state. This is the same as an insurance deductible. The deductible is set by law and is different based on when the project was started and when the tank went into or out of service. It ranges from $5,000 to $100,000.
The IEPA could redirect the deductible to the environmental consultant who has been retained to do the work so they have seed money to start the project. $5,000 is not a lot, but its better than nothing. The IEPA, on the last payment for the services performed, could withhold the deductible.
If the IEPA wanted to be extra accommodating, they could seed the project with $25,000 and withhold the balance on the last payment. In order to make sure the work is done and the consultant doesn’t run off with the seed money, the IEPA could require surety bonds. Essentially an insurance policy, ensuring the contractor will get the work done, or the insurance company will repay the $25,000 seed money.
Attitude Other Law & Attitude Based Ideas To Close Open LUST Incidents
On Teamwork
Teamwork makes the dream work, they say. At Illinois Tollway and IDOT, agency staffers tell the engineers and consultants constantly, we are on their team and they could never accomplish the goals of the agencies without working closely with us. It’s a true collaboration. We are colleagues. I’m not feeling the same attitude from IEPA.
List Of Service Providers
IEPA has no list of service providers who perform LUST consulting they can hand out to people with problems. IDOT publishes their list of prequalified contractors on their website. For extra-style points, they also have a list of DBE vendors to choose from. There is no reason other than attitude IEPA doesn’t provide a list to people with tank problems.
Official Communication Lists
IEPA is an environmental law enforcement agency but they don’t actually do the cleanup themselves. Instead they resort to sending angry letters, sporadically, to Responsible Parties (RP). In the consulting community, we have no idea who they are sending nastygrams to or why. Both the “who” and “why” would lend themselves to helping industry understand agency priorities. It would also allow us to follow up with RPs directly, in a timely manner.
Eminent Domain
IEPA should spend the LUST fund to eminent domain the worst environmental offenders. Fining them would help but condemnation is a good last resort. Specifically, I am thinking of an open LUST incident in Cook County with 4 vertical inches of free product underground. It’s in a residential area, it’s a vacant lot now, and the owner thinks he’s going to get rich by redeveloping the property into apartments. He has no burning need to fix the continuing problem by spending his own money. The property will remain a brownfield until he dies of old age. Eminent domain would rehabilitate the property or get him motivated to clean it himself.
Bidding Out Projects to Illinois Environmental Consultants
Bid on NFR Inspections – Just like IDOT, we could win bids to do the 5 year inspections of NFR letter recipients to make sure they are meeting the terms of their NFR.
Bid on Staffing the IEPA – IDOT has bids for consultants to staff their district headquarters because it’s easier for them to pay consultants than it is to hire staff.
IDOT – IDOT seems to have bids down to a science. If IEPA can’t deploy the funds they have, send them to IDOT who runs environmental projects all the time. In fact, they have a pre-qualification category “Hazardous Waste Simple” which would be a great category to prime these projects.
CMS – Illinois BidBuy – Both these are procurement agencies of Illinois and both have the chops to go out to bid with IEPA projects. IEPA should utilize these agencies to get more accomplished.
County Health Departments – If Springfield doesn’t want to execute on these LUST projects, send the money to the county department of health or even the county DOT.
If you think it’s a problem because there’s not enough budget, click here.
If you think it’s a problem because there’s not enough good data, click here.
If you think it’s a problem because there’s not enough good environmental consultants, click here.
If you think it’s a problem with Agency Attitude or State Law, click here.
