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Just yesterday I read a 265 page report on a former oil company site
where a small benzene impact was identified. The report was replete with graphs,
raw data analysis, boring logs and maps illustrating the depth and extent of the
benzene impacts and the location of proposed monitoring wells and
injection points for future treatment. The area of impact was approximately
60'x100'x15' or about 3400 cu/yd of soil. The report was
comprehensive, excruciatingly detailed and was largely waste of good paper.
The cost of the proposed remedy was $500,000, the cost of the assessment not
included.
As a client who's paid for many a phase 1, 2 and 3 the
problem isn't shoddy reporting, its an industry with a split
personality. The industry consists of small local and regional
independent engineering firms who seem to be running a race to the bottom
to undercut their competitors for business. Good for me, not so much for
you. While I'd agree with the observation posted earlier that you get what
you pay for and cheap isn't often good when you consider how much
the report above cost, you begin to realize why responsible parties are
willing, even eager to pay less for less.
The industry Doppelganger is found in the regional, national and
international engineering firms like the one that generated the assessment cited
above. These folks exist for billable hours just like a law firm.
Their hourly rates reflect their corporate operating costs which are higher than
the independent and regional firms. The question then is, if you get what
you pay for and cheap is bad, is expensive necessarily good? In
my experience expensive is not necessarily better, more accurate or
reliable, its just more expensive.
The environmental industry in trouble for a reason. Managing
a site's environmental problems is now preferable to cleaning up the
site as illustrated in the example cited. Long
term remedies implemented through exotic and highly engineering
systems that guarantee years or even decades of billable hours are very
popular especially as the size of the engineering firms increases. Where many
seem to be calling for higher standards for those who conduct these assessments,
I hear higher costs. Escalating costs are what drive us, the guys who sign
the checks to look for a better deal.
EPA's estimates place the number of known or suspected Brownfields at
between 750,000 to 1 million sites. Federal, state and local subsidized
programs designed to encourage the private sector to jump in, have
not to any significant degree proven a sufficient
driver. And as long as the costs of engineering and remediation
exceed the clean market value of a property, Brownfields development
will not achieve the potential it otherwise might.
As for myself, I'll continue to use the engineering firms that provide
the best value for my
money.
Christopher
Young
Charlotte,
NC
In a message dated 2/16/2011 4:27:48 P.M. Eastern Standard Time,
petestrauss1@comcast.net writes:
I think
we are barking up the wrong trees.
First, we keep talking about bad environmental consultants who, in my
opinion, are not the ultimate source of the problem. The end-users
of the reports have control about quality. Frankly, I don't
think that they care, and thus accept low cost, poor quality, "pro forma"
reports because they are required to jump through a hoop; not because
they really want to know environmental conditions at the site. This
then raises the question of how do we create additional incentives for
good reports. The OIG report started this ball rolling: the government,
which is already offering a carrot, must use a stick as well, which it is not
wielding. That means setting up a review process for the due
diligence process (so long as someone seeks to derive an economic benefit
granted by the gov't), and taking away those benifits when procedures are not
followed. I think that if this were the case, the "clients" would take
more care in making sure that the reports are worthy of the benefits
being offered.
In 1981, I did some work for the first US firm that assessed site
conditions for insurance companies that were offering Environmental Impairment
Liability policies. Although our methods were crude by today's
standards of investigation (we were much more like private detectives before
computers), I wonder if a similar type of insurance which would take on
the risk of gov't benefits would provide a better means of guaranteeing that
environmental conditions are brought to the surface. Thoughts?
Second, as Larry has pointed out almost since I have been paying
attention to this list, is that we need to require that additional information
is in the public domain and is accessible. Even the best environmental
consultant conducting a Phase 1 will find it difficult to uncover a history of
past spills and leaks if they are unreported, without doing a Phase 2 and
maybe a Phase 3.
Peter Strauss
PM Strauss & Associates
Ben,
I agree with your concerns. I strongly support the idea of
raising the standards for who can do phase 1 reports and for states to be
required to adopt EP licensing standards as a condition
of brownfield funding, or perhaps as a condition of being considered a
state response program that is eligible for the federal enforcement
deferral.
If phase 1 reports can only be done by people who
have to take a course of certain about hours, take an exam for a
license, and then maintain that license with continuing education, and can
lose that license if they perform inept reports, that could begin to
weed out the commodity shops. It would cause the unmotivated and
incompetent individuals to look for an easier profession such as , say,
mortgage brokers :)
As rationale economic actors, clients are naturaly
going to tend to pick the lowest cost provider. However, the industry has to
begin a re-education for clients that phase 1 reports are not
commodities. They're not termite inspection reports (sorry if I
offend any termite inspectors).
I think people like Ben and firms like Ben's who try to do
good work but are continually undercut by the phase 1 factories need to
mobilize and send a loud message to EPA that AAI needs to be
changed. It is clear from the interactions with the ASTM committee,
that EPA' wont act unless its brownfield office receives strong signals
from the industry.
Schnapf Law Offices
55 East 87th Street, Ste. 8B
New York,
NY 10128
212-756-2205 (p)
646-468-8483 (c)
Larry@SchnapfLaw.com
http://www.SchnapfLaw.com/
Named to Chambers USA 2009-10 Client Guide of
Americaâs Leading Lawyers for Business.
AVÂ Preeminent Rating from
Martindale-Hubbell
Listed in 2010 New York Super
Lawyers-Metro Edition
-----Original Message-----
From: Ben Neal [mailto:bennealsemail@gmail.com]
Sent:
Wednesday, February 16, 2011 12:46 PM
To: brownfields@lists.cpeo.org
Subject:
[CPEO-BIF] EPA's Inspector General reviews AllAppropriate Inquiries
reports
Larry - "the industry" is hardly a monolith. As in
pretty much any human commercial endeavor, in the consulting world there
are those who seek to gain business
by cutting cost and quality as a
strategy for increasing their revenue; at least in the short term. The
legal profession, I'm quite confident, is not immune.
I can assure
you that there are many firms in the environmental consulting industry who
do Phase I work only reluctantly, and only for carefully selected
clients;
if they do it at all. Not just because it's a low-margin
service, but because the risk is so profoundly inconsistent with any
reward. And -- because of the presence
of low-margin low-quality
consultants -- the price expectations of many clients and their legal
counsel are poorly calibrated.
Rather than pointing fingers,
perhaps we should brainstorm solutions. One solution is education.
If you expect to pay $3,000 or $5,000 for a Phase I study, you
should know that you have a high probability of getting a very poor
quality product. Wouldn't it be nice if clients knew that? It
would also be nice if the attorneys, who inevitably are involved in these
kinds of transactions, advised their clients of that. Some do.
I know a few. I value them like gold.
I don't know what
to do about the fly-by-night low-cost commodity Phase I consultant shops.
Maybe if there were fewer clients willing to buy a $5,000 Phase I
there would be fewer consultants offering it. I think we all have a
role in educating clients. How best to do that? I'm open for
suggestions.
Another solution might be to tighten the requirements
of who is allowed to do Phase I work, with real consequences for those who
fail to meet expectations. I don't agree with Lenny's suggestion that
Phase I reports should routinely be disclosed to government regulators.
Many Phase I projects are done for tentative reasons: speculation or
anticipatory due diligence. In my opinion, those should be able to remain
confidential.
It's a tough question. How do we counteract the
price pressure on a service the market considers to be a commodity, when
in reality with each incremental decrease in fee, the risk to the buyer
increases?
I don't have the answers. But I know the source of
the problem is not solely an industry that "does all it can to commoditize
their work." The reality is more complex than that.
Ben
Neal
------------------------------
------------------------------------------
Re:
[CPEO-BIF] EPA's Inspector General reviews AllAppropriateInquiries
reports
brownfields-bounces@lists.cpeo.org <mailto:brownfields-bounces@lists.cpeo.org> [brownfields-bounces@lists.cpeo.org <mailto:brownfields-bounces@lists.cpeo.org>] on behalf of
Larry Schnapf [larry@schnapflaw.com <mailto:larry@schnapflaw.com>]
Sent: Tuesday,
February 15, 2011 5:49 PM
To:
'R CHAPIN' [rwc27q@verizon.net] <https://legacy.ch2m.com/owa/?ae=Item&t=IPM.Note&a=New&to=rwc27q%40verizon.net&nm=%27R+CHAPIN%27>;
'Jerry Kubal' [jerry@kubalassoc.com] <https://legacy.ch2m.com/owa/?ae=Item&t=IPM.Note&a=New&to=jerry%40kubalassoc.com&nm=%27Jerry+Kubal%27>
Cc:
'Brownfields Internet Forum' [brownfields@lists.cpeo.org] <https://legacy.ch2m.com/owa/?ae=Item&t=IPM.Note&a=New&to=brownfields%40lists.cpeo.org&nm=%27Brownfields+Internet+Forum%27>
Attachments:
ATT00001.txtâ (224 Bâ) <https://legacy.ch2m.com/owa/attachment.ashx?attach=1&id=RgAAAACl2eHLflTREZ7oAIBf1MitBwBx4o3TQErREZ7lAIBf1MitAAAABdxGAADiYAlsyYsEQrntj1VTAh9LAANrlN9qAAAJ&attid0=EAD5yEvY5t3mSagCOCOi%2bvvm&attcnt=1>
We
cant really blame clients without sophisticated environmental knowledge
being unable to discern the value of well-prepared reports when
the industry does all it can to commoditize their
work
Lawrence Schnapf
Schnapf Law
Office
55 East 87th Street #8B
New York, New York
10128
212-756-2205 (p)
212-646-8483 (c)
Larry@SchnapfLaw.com <https://legacy.ch2m.com/owa/redir.aspx?C=d8d51f5696e141e2b0bb462801bc9b3c&URL="">>
http://www.schnapflaw.com/ <https://legacy.ch2m.com/owa/redir.aspx?C=d8d51f5696e141e2b0bb462801bc9b3c&URL="">>
Named
to Chambers USA 2009-10 Client Guide of Americaâs Leading Lawyers for
Business.
AV Preeminent Rating from
Martindale-Hubbell
Listed in 2010 New York Super
Lawyers-Metro Edition
Blog: Visit Schnapf Judgment on
the commonground community at http://commonground.edrnet.com/resources/9d51c3f88e/summary
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------------------------------------------------------------------------
From:
R CHAPIN [mailto:rwc27q@verizon.net
<mailto:rwc27q@verizon.net>]
Sent: Tuesday, February 15,
2011 4:47 PM
To: Jerry Kubal; larry@schnapflaw.com <mailto:larry@schnapflaw.com>
Cc: Brownfields Internet
Forum
Subject: Re: [CPEO-BIF] EPA's Inspector General reviews
AllAppropriateInquiries reports
I strongly agree with
Jerry. When the client selects low bid they typically what they
paid for.
________________________________________________
Richard
W. Chapin, M.S., P.E., BCEE
President, Chapin Engineering
27
Quincy Road, Basking Ridge, NJ 07920
908-647-8407 908 625 5697 (cell)
908-647-6959 (fax)
----- Original
Message -----
From: Jerry Kubal
<https://legacy.ch2m.com/owa/redir.aspx?C=d8d51f5696e141e2b0bb462801bc9b3c&URL="">>
To: larry@schnapflaw.com
<https://legacy.ch2m.com/owa/redir.aspx?C=d8d51f5696e141e2b0bb462801bc9b3c&URL="">>
Cc: Brownfields Internet Forum
<https://legacy.ch2m.com/owa/redir.aspx?C=d8d51f5696e141e2b0bb462801bc9b3c&URL="">>
Sent: Tuesday, February 15, 2011 4:24 PM
Subject: Re: [CPEO-BIF] EPA's Inspector General reviews
All
AppropriateInquiries reports
These have become a commodity and are priced
accordingly. Phase I
reports cannot be done properly for
the amount of money paid to
conduct them. Expenses eat
up more than half the cost and that only
leaves time for
junior, lower billiability rate staff to spend any
time
on interpretation. These things are the equivalent of a
loss
leader. When you have junior staff do the work and
a P.G. takes 15
minutes to review and sign them, there
is a tendency to turn these
into marketing reports by
finding something that will result in a
Phase II
follow-on so some of the actual cost incurred can be
recovered.
We won't do these
types of investigations unless they're for an
existing
client that understands what it takes to do one properly
and is willing to pay accordingly. Unfortunately, the big
consumer
of these reports is typically a financial
institution that will pick
the low bidder and then
require ridiculous amounts of professional
liability
insurance to cover their rear ends because they know a
certain number of these are going to be substandard.
Same sorry state of affairs in the UST business.
If you think AAI's
are bad, pick up and read a typical
UST report some day. That will
really scare
you.
I get tired of hearing all
the complaints about the shoddy work of
consultants when
in most cases it's the end user that drives the
quality
of the work product. When it's all said and done, you
typically get what you pay for. Professional services and
work
products aren't exempt from this. General
Electric's policy to
reverse auction professional
services is probably one of the most
degrading
experiences you can ever be subjected to as a consultant.
And, over and over, they're getting exactly what they don't pay
for.
Jerry E. Kubal,
P.G.
Kubal & Associates, Inc.
P.O. Box 273210
Tampa, FL
33688-3210
813-265-2338 (Office)
813-503-6493 (Cell)
On Feb 15, 2011, at 3:33 PM, larry@schnapflaw.com
<https://legacy.ch2m.com/owa/redir.aspx?C=d8d51f5696e141e2b0bb462801bc9b3c&URL="">>
wrote:
I could speak hours on the
volume of crappy and substandard phase 1
reports that
are produced each year by so-called "commodity shops".
They typically miss historical contamination and prior uses,
nearby
plumes that may be impacting a site, vapor
intrusion, old tanks.
existence of prior bombing ranges-
the list goes on.
The problem was
always there but EPA's AAI facilitated this mess by
diluting the definition of EP. We should have mandatory
state
licensing for EPs who could then lose their
licenses if they
continue to crank out (some would say
spit out) these terrible phase
1 reports.
Larry
Schnapf Law Offices
55 East 87th Street, Ste. 8B
New York, NY
10128
212-756-2205 (p) 646-468-8483
(c)
Larry@SchnapfLaw.com
<https://legacy.ch2m.com/owa/redir.aspx?C=d8d51f5696e141e2b0bb462801bc9b3c&URL="">>
http://www.SchnapfLaw.com/
<https://legacy.ch2m.com/owa/redir.aspx?C=d8d51f5696e141e2b0bb462801bc9b3c&URL="">>
Named to Chambers USA 2009-10 Client Guide of America?s
Leading
Lawyers for Business.
AVÂ
Preeminent Rating from Martindale-Hubbell
Listed in
2010 New York Super Lawyers-Metro Edition
-----Original Message-----
From: Trilling, Barry [mailto:BTrilling@wiggin.com
<mailto:BTrilling@wiggin.com>]
Sent: Tuesday, February 15, 2011 02:50 PM
To: lsiegel@cpeo.org
<https://legacy.ch2m.com/owa/redir.aspx?C=d8d51f5696e141e2b0bb462801bc9b3c&URL="">>,
'Brownfields Internet Forum'
Subject: Re: [CPEO-BIF] EPA's Inspector General reviews
All
Appropriate Inquiries
reports
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
<https://legacy.ch2m.com/owa/redir.aspx?C=d8d51f5696e141e2b0bb462801bc9b3c&URL="">>
[mailto: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
<https://legacy.ch2m.com/owa/redir.aspx?C=d8d51f5696e141e2b0bb462801bc9b3c&URL="">>
-- 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 http://www.cpeo.org/
<https://legacy.ch2m.com/owa/redir.aspx?C=d8d51f5696e141e2b0bb462801bc9b3c&URL="">>
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--
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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