R~c~xvEr~

CLERK’S O1’i’i~

APR

3

0

2Oo~

BEFORE THf~fLEI$~O1S POLLUTION CONTROL BOA,I~?ATE OF

ILLINOi

5

Control

Board

IN THE MATTER OF:

)

)

PROPOSED

AMENDMENTS TO

)

ROI-26

REGULATION OF PETROLEUM

)

(Rulemaking

-

Land)

LEAKiNGUNDERGROUND STORAGE

)

TANKS:

35

ILL. ADM. CODE 732

)

NOTICE OF FILING

TO:

Ms. Dorothy M. Gunn

Clerk ofthe Board

Illinois Pollution Control Board

James R.

Thompson Center

100 West Randolph Street

Suite 11-500

Chicago, Illinois

60601

(By Federal Express)

Mr. Joel J.

Sternstein

Hearing Officer

Illinois Pollution Control Board

James R.

Thompson Center

100 West Randolph Street

Suite 11-500

Chicago, Illinois

60601

(By Federal Express)

All persons listed on the attached service list by U.S.

Mail

Please take notice that today I have filed comments with the Illinois Pollution Control

Board in the matter entitled above.

Dated:

April 27,

2001

THIS FILING IS SUBMITTED ON RECYCLED PAPER

---

APR

3

0

~tj~j~

STATE OP ILUNOIS

BEFORE TIJIE ILLINOIS POLLUTION CONTROL BOAiw

Volluflon

Control Board

N

THE MATTER OF:

)

)

PROPOSED AMENDMENTS TO

)

RO1-26

REGULATION OF PETROLEUM

)

(Rulemaking

-

Land)

LEAKiNG UNDERGROUND STORAGE

)

TANKS: 35 ILL. ADM. CODE 732

)

TESTIMONY OF KENNETH

W. LISS

My name is Kenneth W.

Liss.

I am a geologist, licensed by the Illinois Department of

Professional Regulation.

I am submitting my

comments to those filed by the ISPE and

the CECI.

I am unable to attend the hearings and

ask that you accept my

comments

into the record.

For several years I worked on various drafts

and testified in

favor ofthe bill that

ultimately became the Professional Geologists Licensing Act (Geologists Act).

I was

appointed to the first Board ofLicensing (Board) under the

Act.

During my tenure on

the Board, we formulated the rules required forthe administration ofthe Act,

including

the recommendations and

opinions regarding the qualifications of applicants for

licensing.

For over

14 years I worked at the Illinois Environmental Protection Agency

as a geologist,

approximately eight ofthose years as manager ofthe Groundwater Unit,

Permit Section, Bureau ofLand.

Concerning the submissions

ofMr.

Bonozyk,

attorney for the ISPE

and

the

CECI, I

have the following comments:

The General Assembly did not

purposely

exclude the references to the Professional

Geologist Licensing Act when amending the

LUST

legislation. Actually

it was the

influence of the CECI and

the ISPE in

the drafting ofthe legislation with the Agency.

Although as a group of professionals,

we were eventually

successful

in

getting the

licensing Act passed,

the different

groups of geologists involved

in that effort

did not

have the

organizational

structure

or

resources to

continue.

The

Agency

took

the

position not include references to the Professional Geologist Licensing

Act in

KennethW.

Liss RO1-26

Page

1

04/27/01

---

subsequent legislative or rulemaking actions under the

premise that the Professional

Geologist Licensing Act was only recently passed, not effective until

July

1,

1996

and

would

require rulemaking and a grandfathering period before

licensed professionals

would be available.

This position was taken despite objections from geologists within

the Agency.

The intent ofthe General Assembly and the importance they placed on the practice of

geology is clearly stated in

Section 5(a)

through (h) and

Section

10 ofthe Professional

Geologist Licensing

Act.

The Act

is

an accurate representation of the intent of the

General Assembly as compared to the presumptions presented by Mr. Bonczyk for the

ISPE and

CECI. Section 5(a) and

Section

10 are as follows:

Sec.

5.

Findings.

The General Assembly finds that:

(a)

In recent years, governmental bodies have increasingly come to

rely upon

advice from geologists when formulating laws and policies to

protect the environment and the safety, property, and well-being of the

citizens ofthis State.

Sec.

10. Declaration of public policy.

The practice ofprofessional

geology in the

State ofIllinois

is hereby declared to

affect the public

health, safety, and well-being ofits citizens

and

to be subject to

regulation

and

control in the public interest.

It is further declared

that the practice ofprofessional geology,

as defined

in

this Act,

merits

the confidence

of the public, and that only qualified persons

shall be authorized to engage in the practice ofprofessional geology

in the State ofIllinois.

This Act shall be liberally

construed

to

best

carry out this purpose.

(emphasis applied)

The references to Licensed Professional Engineer (engineer) found in Section 57 ofthe

Environmental Protection

Act

are

broad

enough

in

scope to allow Licensed

Professional Geologists (geologist) to

perform work under the Part 732 (LUST) rules.

The

references

to

Licensed Professional

Engineer found

in

Section

57

require

an

engineer to

certify

certain submissions to the Agency,

but indicates the work

can be

performed under the direction ofthe engineer, not specifically by the engineer..

Now looking at the LUST rules without the proposed amendments, the term Licensed

Professional Engineer

is

included

in

nearly every section and

often subsection

of the

technical

portions

of

the

existing

rules.

The reference to Licensed Professional

Kenneth W. Liss

RO1-26

Page 2

04/27/01

---

Engineer

is

not

only

applied beyond

the requirements

of Section

57,

but

also

in a

manner that requires or implies that the engineer perform the work as opposed to

only

directing the work. One

exception

is

noted in

Section 732.312

Classification

by

Exposure Pathway Exclusion (d) where it includes

“.

.

.

(or, where appropriate, persons

working under the direction of a Licensed Professional Engineer)...”.

Ifthe comments

of the

ISPE

and

CECI are

correct

in

challenging the

Board’s authority to

include

Licensed Professional Geologist in

the rules,

it appears that many of the references to

Licensed Professional Engineer

in

the existing rule also go beyond the

authority of

Section

57 ofthe Environmental Protection Act.

ConcerningMr. HutVs comments

and questions:

In the first

paragraph on

page

3

of his

testimony,

he

states that “Geologists are not

trained as design professionals though they provide valuable scientific services”.

In the

context ofthe definition ofLicensed Professional Engineer, I agree with this statement.

However within the definition of the practice of professional geology, a geologist

is

a

design

professional.

Geology

is

a

science.

For

instance,

studies in

the science

of

geology, including

soils,

fluids,

rock

and

earth processes educate us in the areas

of

stratigraphy and

lithology.

With that

knowledge, a geologist

is able to make efficient

and

intelligent interpretations concerning migration pathways beyond simply plugging

parameter values into formulae.

A geologist

will design a subsurface investigation

to

fulfill the requirements of a corrective action

plan

and

determine appropriate actions.

This may include the

design of a slurry wall or a groundwater injection or extraction

program.

While

there

is

a distinction between the

potential

designs

of

the

two

professions, the term design professional is not exclusive to engineering.

In

the second paragraph

on

page

3,

several

questions are raised concerning the

ramifications ofallowing Licensed Professional Geologists to practice under the LUST

rules.

The first question concerns the potential

consequences of the Agency accepting

a geologist’scertification that entails engineering.

Ifsuch a submission

is

Kenneth W.

Liss RO1-26

Page 3

04/27/01

---

discovered it should be reported to the Department ofProfessional Regulation.

What if

the reverse was to happen and

the engineer certified geologic submissions, not having

the education or experience to competently interpret geologic information?

Is there an

oversight procedure in

place to prevent this

from happening under the current Agency

review of LUST

reports?

As

in

the case of the geologist such a discovery should

be

reported to the Department ofProfessional

Regulation. The questions

put forth by Mr.

Huff could apply to any licensed

profession.

Accepting certifications by a geologist as

allowed by the law would

not lead to “far more complications

and

potential problems”

as stated in

his testimony.

Probably no

more than what may already be occurring, the

answer to each of his

concerns

is

that the enforcement of the regulations

concerning

licensed professionals falls on the Department ofProfessional Regulation.

The Agency and the Board are inadvertently

placing themselves in

the position

of

determining

who

should

or

should

not be allowed to perform the work required

pursuant to the LUST

rules.

Therefore

in

lieu

of specifically

listing

the

licensed

professions

in

each

subsection,

I propose that the Board consider establishing a new

section that

recognizes

the current

State

laws that

set

the

standards

for professionals

engaged

in

the technical work required under these

rules.

I

suggest

striking the

references to both the licensed

professions

in

the subparts to Part 732 and

adding the

following:

Section 732.107

Professional

Certifications

All work performed subsequent to the requirements ofthis Part must be

completed

by,

or

under the

supervision

of a Licensed Professional

Engineer

or

Licensed Professional

Geologist, within the scope

and

definitions

of the laws

applicable

to their respective professions. The

licensed professional

shall

certify to

the accuracy

of the

information

being submitted

and

competency to perform

such work, by signing

and

affixing a

seal

in

accordance with the requirements of the Professional

Engineering

Practice

Act

of

1989

or

the

Professional

Geologist

Licensing Act of 1996.

Kenneth W. Liss RO1-26 Page

4

04/27/0 1

---

Any questions of impropriety or practicing outside one’sprofession can be referred to

the Department ofProfessional Regulation for consideration ofdisciplinary action.

I want to thank theBoard forthe opportunity to present my comments.

Resp tfully,

Kenneth W. Liss

2601

Interlacken Drive

Springfield, Illinois 62704

ORIGINAL

Kenneth W. Liss RO1-26 Page

5

04/27/01

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