The saying “The pen is mightier than the sword” rings true from ancient times to now.  However, more so now than then, the strength of your pen depends greatly on your mastery of words.  I will admit, I goof my words while typing quickly or forecasting my sentences while reviewing.  Recently I was caught red handed with one of the typo dreadnaughts of in the environmental world, contaminants (or how I spelled it contaminates).  I felt a little sheepish when it was pointed out, but that is why I recognize the need for peer or senior technical review.  So it prodded me ask everyone:

According to Dictionary.com continuity is defined as "the state or quality of being continuous." 

Open or Closed, a LUST site is a LUST site.  They represent a risk unless you have data to prove otherwise.  If there is a closure on an adjacent site… great, good for them… your site is still at risk.  Unless you review a report that documents the contamination is limited to soil in the area of the UST, or the contamination in the groundwater is not migrating to your site, the situation is a risk (REC).  Explaining this to a client can be daunting at times because of the adjectives “Open” and “Closed.”  As can be expected, a client will rely on the descriptions/categories created by the regulatory agency to be definitive.  Unfortunately, those categorical descriptions are not reliable.  This is where a consultant can shine or die.  Our ability to explain the differences between arbitrary nomenclature and reality, and more importantly the risks associated with the assumptions imposed by the arbitrary nomenclature, can create a life long client or (if you fail to communicate effectively or the client refuses to see it) a distraught client that may never return.  I have found the later is fine when the client does not want to understand, and just wants a piece of paper so he can move on to making money.  We all like money, but if you don’t understand your risks, you’re going to get burned eventually.  

 

Whether it is titled “Open” or “Closed,” an adjacent or proximate LUST site is a risk that should be highlighted for the client (i.e. a REC in a Phase I).  You will have to use your own professional judgment and experience in the area of the site to determine what should be considered proximate.  (Yes, I skipped gradient, preferential pathways, and many other little facets, but I'm not giving a lesson here, just making a comment.)  

 

Many adjectives used in writing are misleading, it is best to stick to the facts.  It is a LUST site, maybe it is “clean” = “Closed,” but the client needs to understand those two words are not mutual when it comes to contamination.  

 

Scott

 

In accordance with www.dictionary.com the “standard of care” means:  the degree of care or competence that one is expected to exercise in a particular circumstance or role.

 

A question started brewing in my mind during the “EP? I don’t think so” discussion.  How do we reflect the “standard of care” through our actions and reports.  In the 1980’s it was whatever the environmental professional dreamed up, then it slowly headed toward local practice.  “What were the other consultants in your market area doing?”  When ASTM arrived on the scene in the 1990’s… it was local practice with some advice.  Now we have AAI, and ASTM-05 referenced directly in AAI.  Yes, previously we had ASTM-97 and ASTM-00, but not everyone followed them because there was no need (still isn’t a need to follow ASTM-05, most EP’s just do).  Most did out of good practice, but that’s the hook, good practice verse blissful ignorance.  Now that all consultants have been handed the AAI bible and told to worship and follow its teachings, does our perception of the “standard of care” need to change (at least for those who had blinders on and only looked a few feet away)?  Basically… If you were not looking to meet a national standard before, you better meet it now. 

 

The local standard still has a play though.  If everyone in your local area is providing additional “out of scope” services, in addition to the basic Phase I, then your local standard for service may be more than other market regions; however, those addition services should not be considered the “standard of care.”  

 

One person may take the “standard of care” to mean walking every inch of the site, taking 100 photos, sketching a scaled diagram, researching every street directory year, and other OCD actions.  On the other hand I’ve seen someone else drive by the site, take one photograph, look at a record or two and call it good enough for a commercial lot…  Disparity?  Just a little.  This is nothing new to any of us.  We cringe at the costs associated with the over achiever consultants, and shake our heads at the 10 hour Phase I’s for industrial sites.  Will everyone agree on a similar tactic to meet the “standard of care?”  No, not exactly.  Each EP has their own corporate and regional differences.  As Ed has highlighted in his “CERCLA: It’s just Federal Law…” post, for our clients to show they are completing their due diligence appropriately, they need to contact an EP who is knowledgeable in the regulations of the region of interest.  State requirements can augment the “standard of care” between regions. 

 

Back to the definition above, I have yet to find a way for clientele to measure the “competence” of firms without using them first.  They could always ask for a “sanitized” report… but how many of us have ever had that request.  A larger matter would be, could the client recognize a “competent” report?  A few, absolutely.  The Users that are investing in real estate and developing sites tend to be aware of what they need; however, the majority of the Users do not have a full grasp of what makes a “competent” EP that can write a “competent” report that will meet the “standard of care.” 

 

How do we fix this lack of a cohesive “standard of care” across regions?  We really can’t, but we can help Users become educated indirectly.  Start here at CG.  It might sound trite, but the wealth of knowledge already contained here, and the constant input of opinions and examples is a wealth of knowledge to Users.  Beyond CG, Users should ask some basic questions:

 

Do you follow AAI?

Do you use the latest ASTM format?

How many AAI compliant Phase I’s have you completed?

How do you identify RECs?

How will you help me meet my due diligence requirements?  (If the answer is less than two sentences… run!)

 

EP’s should educate their clients and Users to their due diligence requirements and the “standard of care” they take to assist the client. 

 

These are just a few of the questions and thoughts that came to me while reading the blogs and discussions here at CG.  Yours are likely different, so express them. 

 

1. How do you define your “standard of care?”

2. What do you do to educate your clients and Users of their due diligence responsibilities and the dichotomy of practice across regions? 

 

Scott

 

 

We all see it.  They are in many reports.  The subjective verbs used in Phase I reports meant to summarize information.  To me, the use of these verbs let me know if a consultant actually pays attention to their writing and understands what they are saying.  For example:

 

… the data shows...

… the file indicated…

 

These are only a couple of the common ones I see on a regular basis.  They are generalizations of reality, where verbs representing the actual actions taken should be chosen.  Such as:

 

… the data listed…

… as recorded in the XYZ file…

… the file contained a XYZ report …

… Mr. Owner stated…

 

I’m still waiting for my data to “show” me something.  Since the reports I read with a “show” in them are entertaining, I always wonder if it’ll be a puppet show or a dance off. 

 

Please comment.  There are no wrong answers, just educational discussions.  Regular commentators and myself enjoy new opinions and perspectives.  If your new to the blog I encourage you to comment with any opinion or question. 

 

Scott

Well, this is a subjective topic, right?  I hope most EP’s think “Of course we support our statements in the reports we publish.”  Is that how our clients read the reports though?  Do you express commitment to your reports through solid statements?  How often do you come across a misstatement in a report, your or others (please give examples, we all love a laugh). 

OK, so here is my disclaimer:  I was trained to consider the HREC definition to be irrelevant.  So, why do I now write about it… I now have the flexibility to interpret for myself.  Only recently have I been digging into the HREC for a better understanding.  These observations below are based on years of experience reviewing other consultants’ reports.  Though I did not use HRECs in my reports previously, I did note how other consultants used it and questioned my training.