Blogs > Alan Agadoni's - The Knowledge Gap

The Buck Stops Here: Part 2 (2 Comments)

Fri, 13 Mar 2009 18:35:04 +0000

Entry by agadoni

Entry

The “The Buck Stops Here” generated some interesting feedback. An attorney experienced in consultant liability commented to me on the three Environmental Professionals (EPs) who clashed on the findings of a site assessment, yet they all agreed to sign as the EP. Here is a summary of him “thinking out loud” on potential liability concerns posed by the scenario.

The attorney said that this “significant disagreement” could be a deposition gold mine. He saw three issues which an aggressive plaintiff’s lawyer might choose to try and exploit. He stressed that at the moment these are merely legal theories, with no cases to say that these ideas would or would not work....

Image

First, since many EP’s are also professional licensed as engineers or geologists, any applicable canons of ethics would be triggered. How could the EP explain to his or her licensing board (a complaint having, of course, been filed by the plaintiff) that he or she signed a report as the EP that he or she thought was wrong or incomplete without having a statement showing the client where the professional felt the report went astray?

Second, how would the EP (and the EP’s employer) explain to their professional malpractice carrier that the EP signed something they disagreed with? Remember: the plaintiff’s lawyer will characterize this much less charitably. The plaintiff’s lawyer might ask the same question in this way: “Why did you deliberately sign something you knew was wrong? Why did you sacrifice your professional integrity to the detriment of my client? Will you sign anything for money?” With this spin, the insurance carrier might take the position that the decision to sign something which your professional judgment told you was wrong (or so incomplete as to be effectively wrong) that it amounted to a knowingly wrongful act – and that might mean no insurance.

Third, and the lawyer stressed again for emphasis that this was speculation without a case to point to, the transmittal of the report with conclusions you believe to be wrong via mail or email (or both) might rise to the level of a violation of the federal mail or wire fraud criminal statutes. And, of course, there is no insurance for a crime. If this is a viable theory (again, a big “if”), it could create among the multiple EPs a new title: “co-conspirators.”

Whether or not you agree with the attorney, his comments should serve to caution all EPs. You may find yourself in similar circumstances. After all, differences of opinion are common in the ESA arena. The next part of this series will focus on some strategies for productively resolving disagreements before the report is finalized. There is a commonground discussion on issues like this associated with the role and responsibilities of the Environmental Professional. Please check it out and share your opinions.

The Buck Stops Here (1 Comment)

Thu, 05 Mar 2009 21:09:35 +0000

Entry by agadoni

Entry

How many people should sign a Phase I ESA report as the Environmental Professional (EP)? Your first response might be, "The more the merrier!" Yet, a review of the ASTM E 1527-05 standard practice suggests "The Buck Stops Here" with one EP.

This issue came up recently, when a former student asked, "Is it okay for multiple people to sign a report as the EP?" When I asked what spurred his question, he told me about an assessment where two EPs worked for another EP who was the project manager. There was some difference of opinion between the EPs on the findings of the project and ultimately they compromised on the conclusions and recommendations in the report. He explained that...

Image

part of the compromise was that all of them would sign the report as the EP. Their decision was based upon the logic that the report represented a consensus opinion, versus the sole opinion of the project manager.

I told him that legal counsel might wave a big red flag at this approach if there was still significant disagreement between the three EPs. Also, legal defensibility aside, I didn’t think it was practical or consistent with ASTM. The student countered that they borrowed the idea from the following ASTM sections that refer to EPs in a collective reporting role:

12.12 Signatures – "…the report shall include the following statements of the environmental professional(s) responsible for conducting the Phase I ESA and preparation of the report."
12.13 Environmental Professional Statement – "[I/We] have developed and performed the all appropriate inquiries…"

He made a good point. Before I answered his question, I needed to dig a bit further. Does ASTM really suggest that more than one person may serve as the EP? If so, who is accountable for assuring that all duties are performed? Perhaps most importantly, do all participating EPs need to agree on the report conclusions and opinions, or does one EP need to act like Harry Truman and insist that "the buck stops here?"

In order to find the answers, let's take a look at what E 1527-05 says. A phrase search for "environmental professional" results in the term appearing 120 times. In approximately 90% of those cases, the standard refers to a single individual when describing the role and responsibilities of the EP. The above-quoted sections are amongst the rare instances when the concept of multiple EPs on a project appears. So was this a case of inconsistent usage of terminology by ASTM? Perhaps it is more likely that sections 12.12 and 12.13 are merely acknowledging that assessments are often collaborative.

It may help avoid confusion to think of the term EP as both an identity and a role. A person is an EP if they meet the minimum qualifications set forth in the practice, regardless of their role in a project. Yet, the person who performs the duties of the EP for a particular project is the EP for that project. A careful reading of the standard consistently supports the concept that one person should play that role. ATSM confirms that some ESA tasks may be reasonably assigned to others. Yet, it also designates that the EP direct those activities.

So, what was the take away? From a legal, technical and practical standpoint, one person needs to perform the role and responsibilities of the EP. Furthermore, it is essential for consistency that the person performing the role of the EP is 100% in support of the report conclusions and opinions. For those reasons, I suggested to the student that the person who should sign the report as the EP is whoever performed the role of EP during the project. The other contributing EPs can and should sign as whatever their project role was – assessor, technician, etc. - but not as the EP.

I have started a commonground discussion on issues like this associated with the role and responsibilities of the Environmental Professional. Please check it out and share your opinions.

Unintended Lessons from the Smithsonian

Thu, 19 Mar 2009 16:11:51 +0000

Entry by agadoni

Entry

An exhibit worker at the Smithsonian National Air and Space Museum has alleged that for 17 years, his employer allowed workers to disturb asbestos-containing materials without using proper safety measures. The employee also claims he has an asbestos-related lung disease resulting from his workplace exposures. This Washington Post article details the aftermath of the sad tale that now features OSHA citations, lawyers, and allegations of whistleblower retaliation....

When you look beyond the obvious lessons to be learned regarding asbestos management, there is another moral to this story. What commonground members should note is the "smoking gun" of the article - an asbestos survey report produced in 1992 by a consulting firm who worked for the Smithsonian. While environmental professionals should already be aware of the serious nature of the work they do, how many would expect to find a report they produced more than a decade ago hyperlinked in its entirety on page one of a national news report?

Commenting on this article, commonground member and asbestos guru TomL of The Environmental Institute suggested the following lesson plan for his fellow environmental professionals. Sit down with your associates who write and review reports. Navigate to the article and click the link to the asbestos survey report. Then watch their jaws drop when the actual report pops-up on their desktops.

K-gap kudos to TomL for this important reminder!

EPA's Most Wanted

Thu, 09 Apr 2009 13:24:51 +0000

Entry by agadoni

Entry

Does the name, Albania Deleon ring a bell? A former owner of an asbestos training school, she was convicted of providing workers fraudulent training certificates and then profiting from their work. And, she was one example mentioned in my When Good Training Goes Bad post. Well, Ms. Deleon is in the news again, this time for failing to appear at her sentencing hearing. Her whereabouts are unknown but her poster is now prominently featured on US EPA’s Most Wanted site. You will find her along with 20 or so assorted fugitives from environmental justice. I particularly enjoyed reading up on the bad guys whose mug shots were stamped with the word, "CAPTURED" in big red letters....

Image

While you are there, I encourage you to peruse the EPA Enforcement site and the links to the Civil, Cleanup and Criminal enforcement pages. These pages are loaded with news, case histories, policy and guidance. You will find this information quite useful as an environmental professional looking to expand your knowledge base. During training classes I am often asked about the likelihood of regulatory enforcement related to a particular environmental condition. One research method I suggest is to search federal, state and local agency sites for write-ups and statistics on past enforcement actions for that condition. This quote from humorist Sam Levenson says it all, “You must learn from the mistakes of others. You can't possibly live long enough to make them all yourself.”

What is “The Knowledge Gap”? (3 Comments)

Fri, 30 Jan 2009 19:19:59 +0000

Entry by agadoni

In Dianne Crocker’s recent article on social networking for environmental professionals, I commented, "For years, we have urged students in our Phase I ESA training classes to never stop learning, but resources have been limited. Social networking sites are closing the knowledge gap between industry novices and experts by providing an open forum for candid discussions."

That's what sparked the concept for this blog. It will focus on news, regulations and research that are not on other bloggers’ radar. For example, many due diligence projects require consideration of health and safety topics like asbestos, lead and mold. Yet, it can be a struggle for environmental professionals to keep up with developments outside their primary area of expertise. So I will do my part to seek out the latest and greatest from the experts and share my personal experience and opinions on these topics.

I have been fortunate in my career to not only work as an environmental professional, but to also teach hundreds of environmental consultants and real estate professionals involved with due diligence. Experience has taught me this valuable lesson that I share with students and plan to maintain in this blog:

It is impossible for anyone to know everything about all the environmental issues, regulations, or real estate and construction considerations required by every site assessment they perform. Therefore, it is essential that we learn what we don’t know so we can acknowledge our limitations and effectively seek out the expertise and information we need for each project.

The door is always open for your feedback and any suggested topics, so let me know what you will find useful.

EPA Issues Guide for New Lead Paint Rule

Wed, 11 Feb 2009 21:10:36 +0000

Entry by agadoni

Now is the time to begin preparing for a new federal rule which will go into effect on April 22, 2010. EPA recently published a compliance guide that will help you evaluate the lead-based paint (LBP) renovation, repair and painting program (RRP). The RRP significantly alters the compliance landscape for owners, managers and contractors. State, tribal and local programs will also have to adapt to meet or exceed the rule. Following is a brief summary of key requirements:

Who is required to comply? Owners, managers and contractors who disturb painted surfaces in rental homes, apartments, schools, day-care and other child-occupied facilities built before 1978.

What must be done pre-renovation? Managers must educate occupants (effective now), and contractors must train workers and become EPA certified (before April 22, 2010).

What about during renovation? Projects require work practices to minimize occupant and workers exposures, signage, work area dust and debris control and proper disposal of waste.

As always, there are many details and exceptions in the regulation to consider when determining the impact on your operation. The revised training curricula and trainer accreditation programs have not yet been released so some details are pending. Thinking ahead, EPA has established compliance assistance for contractors and other small businesses impacted by this rule at www.cicacenter.org.

When Good Training Goes Bad

Mon, 23 Feb 2009 20:16:26 +0000

Entry by agadoni

“Corners cut and beers downed at Fed-run OSHA classes,” was the headline of a recent NY Daily News article that caught my eye. It chronicles the undercover investigation of a 10-hour safety course intended to save worker lives at a time of record construction deaths in New York City. The reporter observed disinterested workers and a “certified” instructor make a mockery of the class. Unfortunately, this type of fraud is a national problem that is challenging for even federal and state safety officials to control. How widespread is the problem? How seedy are the scofflaws? A little searching uncovers many cases, including:

A trade school in Queens allegedly allowed asbestos workers to use fake social security numbers and then provided them answers to pass the exam. Subsequently these workers used their credentials to work at high-security facilities.
The investigation of a New York City scaffolding worker who fell to his death revealed that the owner of the firm allowed an untrained, uncertified foreman with fake credentials supervise the project at the time of the accident.
The owner of the largest asbestos training school in Massachusetts convicted of falsifying identification, forging licenses and evading taxes.

In a recent commonground discussion on Price Cutting in the Phase I ESA industry, Jack Huntress posted about a stakeholder effort aimed at training and qualifying environmental professionals. As one of the volunteers, it has been encouraging to see an industry come together to build a “Due Diligence University.” But when it comes to oversight of the training, we will need to keep in mind the lessons learned by those who have come before us: beware of crooks who will risk everything for a few bucks.

AIHA Concerned About Mold Assessors

Thu, 05 Feb 2009 13:29:29 +0000

Entry by agadoni

This letter commenting on a recent “New York Toxic Mold Safety” bill (AB 648) by the American Industrial Hygiene Association (AIHA) is informative for all commonground members who conduct “limited mold assessments” in conjunction with a Phase I ESA. It includes strong opinions regarding the state of the mold assessment and remediation industry that are worth a look. Here is what it says about assessors:

“AIHA does not believe the skills necessary to conduct proficient mold assessments can be obtained through attendance at a training course held over a period of a few days. Combining education and demonstrating competency in specific areas of knowledge, is essential.”

And:

“AIHA considers the following minimum qualifications and competencies necessary to define a “competent professional”:

• Bachelor of Science in industrial hygiene, environmental health, or an engineering, life science, chemistry or physics discipline;

• Two years of experience under the direction of a CIH, CSP and/or licensed Professional Engineer with significant experience in building science, mold assessments, and exposure assessment. At least one of the two years must involve the performance of indoor environmental quality assessments.

• In addition to the qualifications above, the competent professional should have competence (from education, training and experience) in: Exposure assessment, Indoor Environmental Quality (IAQ), Heating, ventilating and air conditioning (HVAC), Microbial assessment and remediation, Building science, Legal/communication, Microbiology/mycology, Health effects”

While AIHA is not the only credible organization for mold professionals, their opinion is noteworthy and may prompt Environmental Professionals to re-examine: what are the appropriate qualifications and training for ESA staff conducting mold inspections?

K-Gap credit to TomL for the referral

Blogs > Alan Agadoni's - The Knowledge Gap

The Buck Stops Here: Part 2 (2 Comments)

Entry

Image

More

The Buck Stops Here (1 Comment)

Entry

Image

More

Unintended Lessons from the Smithsonian

Entry

More

EPA's Most Wanted

Entry

Image

More

What is “The Knowledge Gap”? (3 Comments)

EPA Issues Guide for New Lead Paint Rule

When Good Training Goes Bad

AIHA Concerned About Mold Assessors