Re: [CPEO-BIF] EPA's Inspector General reviews All Appropriate Inquiries reports

["Trilling, Barry" <BTrilling@wiggin.com>]

The problem we've seen with shoddy Phase I reports deserves a strong response. With self-certification one cannot be sure that the person who signs the certification even has the credential required by the regulation and the poorer the quality of the report the more likely it is that the person who did the certification would not qualify under the regulation as an EP.  Nonetheless, the remedy for a User who has received a deficient report will depend upon the nature of the damage it has suffered, and if that damage amounts to the loss of the BFP defense and the incurring of cleanup expenses stemming therefrom, unless the contract with the consultant limits the remedy the injured party could sue for breach of contract.  Many Phase I contracts, however, limit the consultant's liability to the amount of the stated compensation--- so even if one pays $3000 for what one might anticipate to be a good Phase I report and it turns out not to be, the damages could be limited to $3000 and there is no effective remedy or disincentive provided to the consultant. For Phase I engagements I recommend that the consultant's liability be limited to the extent of the coverage of its professional insurance, and that the contract require the consultant to maintain at least one million dollars in coverage.  Most times, however, the damage is not done by loss of the defense, but in the disruption or destruction of a transaction and most clients would rather suffer the loss as part of the learning experience rather that incur lawyer's fees in suing the consultant.  Possible fines imposed by governmental agencies with a complaint procedure that could be mobilized by those who have received improperly certified reports would help solve the problem.

Barry J. Trilling
 W I G G I N  A N D  D A N A 


-----Original Message-----
From: Peter Strauss [mailto:petestrauss1@comcast.net] 
Sent: Tuesday, February 15, 2011 4:01 PM
To: Trilling, Barry
Cc: lsiegel@cpeo.org; Brownfields Internet Forum
Subject: Re: [CPEO-BIF] EPA's Inspector General reviews All Appropriate Inquiries reports

Barry:

You're statement sounds a bit strong.  The IG's report was aimed at  
EPA: not having a system in place to review and/or verify the findings  
of the EPs. Have you had experience when Certified Environmental  
Professions (EP) have wrongly certified properties to be in  
compliance?  As a lawyer, what have you done when you find this is the  
case? What Is the legal recourse for parties that believe that a site  
was wrongly-certified?

For full disclosure, I am a lapsed Certified Environmental  
Professional - I let my CA certification go because I don't prepare  
AAI-type reports.

Peter Strauss
On Feb 15, 2011, at 11:50 AM, Trilling, Barry wrote:

> Having seen this curse spread in both the public and private  
> sectors, I favor the enactment of legislation or promulgation of  
> regulation that will give EPA and state agencies the authority to  
> issue monetary sanctions and/or lift the license to practice of so- 
> called environmental professionals who certify compliance with the  
> regulatory standard when it is far from the truth to do so.   
> Corporate officials who certify statements submitted to EPA are  
> subject to criminal penalties; these folks who louse up the process  
> for everyone else and endanger human health and the environment by  
> doing so should also be subject to punishment.
>
> Barry J. Trilling
>  W I G G I N  A N D  D A N A
>
> -----Original Message-----
> From: brownfields-bounces@lists.cpeo.org [mailto:brownfields-bounces@lists.cpeo.org 
> ] On Behalf Of Lenny Siegel
> Sent: Tuesday, February 15, 2011 2:24 PM
> To: Brownfields Internet Forum
> Subject: [CPEO-BIF] EPA's Inspector General reviews All Appropriate  
> Inquiries reports
>
> [This new reports finds that EPA does not normally review All
> Appropriate Inquiries reports submitted by Brownfields Assessment
> grantees, and that those reports often do not meet the legal
> requirements under the AAI rule. What can and should be done to  
> improve
> the quality of those reports? What can and should be done to ensure  
> that
> AAI reports prepared for other purposes meet the legal requirements?
> Does anyone have evidence of serious on-the-ground consequences of  
> poor
> AAI documentation?- LS]
>
>
> EPA Must Implement Controls to Ensure Proper Investigations Are
> Conducted at Brownfields Sites
>
> U.S. EPA Office of Inspector General
> Report No. 11-P-0107
> February 14, 2011
>
> At a Glance
>
> What We Found
>
> EPA does not review AAI [All Appropriate Inquiries] reports  
> submitted by
> grantees to assure that they comply with federal requirements. Rather,
> EPA has relied on the environmental professional conducting the AAI to
> self-certify that requirements are met. Of the 35 AAI reports we
> reviewed, from three EPA regions, none contained all the required
> documentation elements. This occurred because the Agency does not have
> management controls requiring EPA project officers to conduct  
> oversight
> of AAI reports. Management controls regarding EPA oversight of
> Brownfields grants funded by the American Recovery and Reinvestment  
> Act
> of 2009 (ARRA) are also missing. EPA has issued specific guidance and
> management controls for ARRA grant activities. However, the guidance  
> and
> controls do not address oversight of AAI reports.
>
> Because of EPA's lack of oversight and reliance on environmental
> professionals' self-certifications, AAI investigations not meeting
> federal requirements may go undetected by Agency staff. The Office of
> Inspector General found instances of noncompliance that were not
> detected by Agency staff. Improper AAI investigations introduce risk
> that the environmental conditions of a property have not been properly
> or adequately assessed, which may lead to improper decisions about
> appropriate uses of brownfields properties. Ultimately, threats to  
> human
> health and the environment could go unrecognized.
>
> Noncompliant AAI investigations may result in future grant denials and
> possible government reimbursement. The AAI reports the OIG reviewed  
> were
> generated from $2.14 million in grant awards. If conditions merit, EPA
> is authorized to take back funds from noncompliant grantees. The OIG
> questions the value of the reports we reviewed.
>
> What We Recommend
>
> We recommend that EPA establish accountability for compliant AAI
> reports, to include those conducted under ARRA Brownfields grants;
> develop a plan to review AAI reports to determine the reports'
> compliance with AAI documentation requirements; and establish criteria
> to determine whether noncompliant grantees should return federal grant
> money. The Agency did not clearly agree or disagree with OIG
> recommendations. In its final response to the report, the Agency needs
> to agree or disagree with recommendations and, as appropriate,  
> provide a
> corrective action plan to address the recommendations.
>
>
>
> To download the full 19-page 140 KB report, go to
> http://www.epa.gov/oig/reports/2011/20110214-11-P-0107.pdf
>
> -- 
>
>
> Lenny Siegel
> Executive Director, Center for Public Environmental Oversight
> a project of the Pacific Studies Center
> 278-A Hope St., Mountain View, CA 94041
> Voice: 650/961-8918 or 650/969-1545
> Fax: 650/961-8918
> <lsiegel@cpeo.org>
> http://www.cpeo.org
>
>
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