There are currently over five thousand open incidents recorded in the Illinois Environmental Protection Agency’s (IEPA) Leaking Underground Storage Tank (LUST) database. These open incidents reflect Illinois as being in the three worst states in the union for known leaking tanks. There are many reasons for this as I will explain in a moment, but first, let’s talk about some disappointing statistics.
As of February 1, 2022
- Total Open LUST Incidents for any reason – 5,544
- Oldest open LUST – January 21, 1984
- Open Cases With “Free Product – 51 Liquid petroleum onsite, the worst-of-the-worst.
- Oldest Open “Free Product” – April 18, 1986
- Most Open LUST Incidents on Same Property – 17
- Oldest Open LUST with Multiple Open Incidents – January 21, 1984 (3 Open Incidents)
- Open LUST with No IEPA Project Manager Assigned – 1333
- Oldest Open LUST with No IEPA Project Manager Assigned – December 28, 1987
- With “NFR Not Recorded” – 6,382
- Open Leaking Gas Tanks – 39o7
- Open Leaking Diesel Tanks – 1390
- Open Leaking Fuel Oil – 302
- Open Leaking Jet Fuel – 29
- Open Leaking Used Oil – 470
- Open Leaking Non Petroleum – 160
- Open Leaking Fuel Oil – 757
Leaking Underground Tanks – Bad for Human Health
Contamination from leaking petroleum can find its way into drinking water in the surrounding residences. Often it migrates offsite and passes under streets and utilities owned by the municipalities and the state. When construction crews come in contact with these pollutants, they impact human health through inhalation. It can also seep up through building foundations into the air inhabitants of buildings breathe on a daily basis.
LUST Trust Fund
The State of Illinois set aside a fund for cleaning up LUST incidents. All owners need to do to start the ball rolling is to pick a consultant and pay the deductible.
From my reading of the Illinois State Budget, the IEPA spent $1.7 Million on processing LUST cases.
Actual reimbursements for these projects are running only half of the budgeted amount.
In the 2021 budget year the IEPA spent only $21 Million on consultants expenses and cleanup out of the budgeted $40 Million. It was much the same in 2020. For this new year, the budget remains $40 Million.
Why Does Illinois have the worst Backlog of LUST Incidents in the United States?
The LUST fund is an insurance fund paid by a tax on every gallon of fuel sold in the state. Fifteen-plus years ago, the environmental consultants who were hired to clean up the open LUST incidents found ways to bilk the fund and overcharge for services. The IEPA cracked down on what could be charged in both hours and dollars. They arguably cracked down too hard because the bulk of environmental consultants available and/or willing to do LUST remediation shrunk substantially.
Governor Rod Blagojevich
Rod Blagojevich was the second shoe to drop. He raided the LUST Trust fund and moved money out to pay for other things. This even happened at the Federal level. Even before this happened, the State of Illinois started paying their bills up to two years after invoices had been submitted. This simply was not sustainable. Up to this point, the business model was for consultants to do the work and submit the bills for reimbursement to the state. The state would pay the tank operator, who would pay the consultant. All the labor for sampling, all the lab work and all the consulting hours would be paid for by the consultant and they’d need to float those costs until the state paid. Two years was just too long to “be the bank” for any project, especially at the new, lower and constrained rates.
Illinois EPA Staffing Issues
The word on the street is IEPA doesn’t have the staff to pound on the “Responsible Party” for closure. Worse yet, in many of the older cases they lost track of who or where the Responsible Party is. When they send letters, the letters get returned. The database has address errors and while some mail is reaching its intended target, it appears nobody is following up with phone calls or correcting the errors.
Proposal to Fix the Open LUST Incident Problem
I had a conversation with the IEPA about their challenges. As an environmental consultant with an interest in a cleaner Illinois, I offered to help. It appears the LUST Trust Fund has plenty of money in it. The budget is double what is spent in any year. The manpower issue at the IEPA seems to be getting better but they still haven’t focused on closing out their open cases.
In my conversation, and with my offer to help, I was told what I should already have known. A3 Environmental Consultants can’t be hired to solve these issues, even if the funding is there, without going through the bidding process. It makes complete sense but I feel like it misses the mark. I offer this proposal:
LUST Incident Bounty System
The IEPA may not be able to contract with us alone to research the responsible parties, or follow up with phone calls and get projects moving again but they could offer an open bounty for any consultant who meets certain requirements (environmental consultant). The way I see it, there are several layers of issues on the road to getting these projects closed. Each one could be a different bounty.
Responsible Party Search Bounty
Find good contact information on the responsible party. If they are deceased, return the information and update the database.
Get the NFR Recorded Bounty
All NFR’s need to be recorded at the County Recorder of Deeds in the county they happened in. This is a paperwork issue if left undone could result in a voided NFR. Essentially these people need to be hounded into getting this task completed.
Fix Database & Paperwork Snafus Bounty
If the tank location address is bad, it needs to be fixed and the changes need to be returned to the IEPA. If the project was moved out of the LUST fund and into the SRP program where the project was closed, update the database.
Get Projects Moving Bounty
All LUST incident’s Responsible Parties need to be contacted and the stalled projects need forward momentum. If the projects can be pushed out of the LUST fund and into the SRP program, the State gets to keep the LUST Trust Funds and earn revenue from processing the SRP program requests.
How Could Illinois Help Consultants Close LUST Projects?
Raise Billing Rates
Current reimbursement rates are considered low and many qualified consultants aren’t interested in providing services for that reason. The state has an interest in being good stewards of the LUST fund but also needs to balance against the imperative to get projects closed.
Pay IDOT Overhead Rates
I would suggest for Illinois Department of Transportation certified consultants, we should be able to use our audited overhead rate as our billing rate. This would ensure the quality of the consultant pool remains high, corners aren’t cut, and projects are done as quickly as possible. If it’s good enough for IDOT, it should be good enough for IEPA.
The Illinois Comptroller’s office used to show you what bills were in line to get paid but they stopped, most likely because it was too embarrassing to show that level of honesty. The LUST Trust fund is a fully funded set-aside. In theory it should be sacred and untouchable for other purposes. The money is there, if the paperwork is correct, pay the bill.
Dedicated IEPA Project Manager To Collaborate With
There needs to be one person at the IEPA who’s responsible for collaborating on fixing and updating the data in the LUST database. In addition, telling a Responsible Party they have things they still need to do to close their site doesn’t have the same teeth if it’s not done by the IEPA. In order to get progress with closures the IEPA PM needs to send timely certified mail while consultants their phones. Without this level of teamwork it’s doubtful these project will ever get closed.
If you have other current or future concerns regarding Leaking Underground Storage Tanks or the LUST Trust Fund, we’d love to talk with you, call us now! A3 Environmental Consultants can be reached at (630) 507-9033 or by email at LUST@A3E.com.