2011 CPEO Brownfields List Archive

From: CYoung2281@aol.com
Date: Wed, 16 Feb 2011 16:24:55 -0800 (PST)
Reply: cpeo-brownfields
Subject: Re: [CPEO-BIF] EPA's Inspector General reviews AllAppropriate Inquiries reports
 
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

On Feb 16, 2011, at 11:06 AM, larry@schnapflaw.com wrote:

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.

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-----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:    
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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)

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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

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       -----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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--


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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