advanced
 
Blogspublic

Larry Schnapf - Schnapf Judgment

This is a public Blog  publicRSS

Entry

    LSchnapf
    Professional Obligations to Report Contamination
    Entry posted February 26, 2010 by LSchnapfElite Contributor, last edited January 19, 2012
    627 Views, 5 Comments
    Title:
    Professional Obligations to Report Contamination
    Entry:
    The NJ LSRP program essentially deputizes LSRPs so that they become agents of the state and have a professional obligation to disclose certain environmental information at risk of losing their certification. Now, this obligation may not apply to run of the mill phase 1 performed by a non-LSRP but something along that line for the universe of sites that could be understood to pose a certain risk would be what I would propose.
     
    I have noticed that Architects have a professional obligation to minimize the impact of their work on the environment. I find it interesting that consultants and attorneys do not have such an ethical obligation though I think some states do impose some obligations on PEs.  What states impose such obligations and under what circumstances do consultants have ethical obligations to disclose?
    Larry

    Comment

    • MaxEng
      posted February 26, 2010 by MaxEngElite Contributor

      In the original state in which I was registered as a PE (Alabama), the board of registration took great pains to advise all newly registered engineers of the ethics clauses within the state's statute and regulations governing the practice of engineering.  They were based primarily on the model ethics code developed by the National Society of Professional Engineers.  Most states have ethics codes that are quite similar.  The key element of those codes typically says something like this:

      Engineers shall hold paramount the safety, health, and welfare of the public.

      1. If engineers' judgment is overruled under circumstances that endanger life or property, they shall notify their employer or client and such other authority as may be appropriate.
      2. Engineers shall approve only those engineering documents that are in conformity with applicable standards.
      3. Engineers shall not reveal facts, data, or information without the prior consent of the client or employer except as authorized or required by law or this Code.
      4. Engineers shall not permit the use of their name or associate in business ventures with any person or firm that they believe is engaged in fraudulent or dishonest enterprise.
      5. Engineers shall not aid or abet the unlawful practice of engineering by a person or firm.
      6. Engineers having knowledge of any alleged violation of this Code shall report thereon to appropriate professional bodies and, when relevant, also to public authorities, and cooperate with the proper authorities in furnishing such information or assistance as may be required.

      This clause requires engineers to hold public safety and health paramount.  It leaves interpretation up the individual, though, as regards when one needs to report a given condition to regulatory authorities.  Note also item c, which puts the onus on the engineer to obtain client approval "except as authorized or required by law" or the code itself.  This can lead to some pretzel logic in real-world situations, depending on the individual engineer's interpretation of what conditions truly constitute a threat to safety, health and welfare. 

    • Tom Speight
      posted February 26, 2010 by Tom SpeightElite Contributor

      In the two states where I work (MA and CT) the enviro professionals licensed by the states adopt very similar codes of ethics and standards.  NJ is essentially trying to clone the MA system.  Neither MA nor CT put the obligation on the consultant so strictly, though-- we're not deputized by the state, we're independent professionals who have obligations to the public as conditions of licenses we hold or (in CT) by virtue of the field in which we work.  You're supposed to notify the client or, through the client, the property owner, and the obligation is usually on THEM to report... unless it's a significant hazard, for which both states have some pretty clear and simple criteria (gross contamination, drinking water exposures, etc.), and even then the consultant is only required to report if he is aware that the client/property owner won't report it.  There was actually a legal decision by the MA AG's office back in the early 90s that the DEP offered as guidance (and a lot of us were glad to have it) for what to do in the event that the client fired us to keep us from reporting.  More to the point, a LSP is only bound by the LSP regs when he's doing LSP work or becomes aware of situations which should be LSP work.  Regular Phase I work doesn't count. 

      We would get a lot more Phase II work if we didn't have to tell people beforehand that they could wind up with an obligation to report. 

      I think NJ is trying to change too much too fast.  There was a lot of regulatory and professional whiplash when MA went to the LSP system (on which the LSRP thing is based) in 1993, and that was definitely handled better than this.  It would be better, I think, to let the system go for a few years with fewer restrictions and then turn loose an audit department.  This is what the MADEP does, and it works almost like the line out of Candide: "Dans ce pays-ci il est bon de tuer de temps en temps un amiral pour encourager les autres."  Skewer a lousy consultant from time to time to keep the others  on their toes.

      Then again, NJ probably has a very different population in the regulated community than MA or CT does; e.g. CT historically had many more really huge industries on the scale of Pratt & Whitney than MA does, and as a result their regulatory programs tended to reflect more of a RCRA orientation.  Given the number of Superfund sites and the historic industries in parts of NJ......

    • MSA
      posted February 28, 2010 by MSAMember

      New York has a weird reporting program.  "Anyone with knowledge" is required to report petroleum releases; so a lot of consultants have to make reports.  But only owners and operators must report other types of releases, unless there is a "significant threat to human health or environment."  This is not defined anywhere, but I had a project with gross solvent contamination adjacent but cross-gradient to a residence a few hundred feet away.  We made recommendations to the owner and their counsel to report the contamination, but it was never done.  A year later, I received a call from the state chastising me for not reporting it, even though they agreed that I had no legal obligation to do so.  They did suggest that if I were a PE, they would report it to the state Department of Education (which oversees PEs in NYS).

      Currently, I have another solvent contamination project, gross contamination about 75' upgradient of a private residence with a basement.  In this case, we again recommended that the property owner report the contamination, especially with all of the attention on indoor air issues.  But in this instance we will make the report if the owner (a local municipality) does not.

      • Tom Speight
        posted March 1, 2010 by Tom SpeightElite Contributor

        I don't follow-- why would a PE have an obligation under these circumstances (and presumably under the same laws) when others do not?

    • MSA
      posted March 1, 2010 by MSAMember

      PEs are not governed by the same laws.  They are held to a higher standard and, in New York, they are personally liable, as is their estate, for their negligence.  It was the state's way of trying to force something that is not in their regulatory ability to do.