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I generally agree with Peter but I really think it is important to have mandatory licensing as one of the sticks. This way, the penalty for doing bad work would be loss of license.
Isnt the other gorilla in the room also the fact that governments need to select the low bidder? If there was a licensing requirement, then at least the bids would contemplate the use of truly qualified individuals and would enable the better firms to compete for this work. Right now, the phase 1 factories can basically hire mortgage brokers as independent contractors so long as the report is signed by an EP. All the work should be done by a licensed individual.
Named to Chambers USA 2009-10 Client Guide of Americaâs Leading Lawyers for Business.
AVÂ Preeminent Rating from Martindale-Hubbell
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-----Original Message-----
From: Peter Strauss [mailto:petestrauss1@comcast.net]
Sent: Wednesday, February 16, 2011 04:15 PM
To: larry@schnapflaw.com
Cc: 'Ben Neal', brownfields@lists.cpeo.org
Subject: Re: [CPEO-BIF] EPA's Inspector General reviews AllAppropriate Inquiries reports
| 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
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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/
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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>
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