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Second Opinions Can Offer a Distinctly-Different Path Forward

Written by Alan Hahn, Dragun Corporation

A story in the Washington Post from a year
ago discussed why second medical opinions can be very important.  In one case, a young man, at his mother’s
behest, got a second opinion and received life-saving surgery for cancer that
he would not have otherwise received. 
The other case they highlighted was a woman who did not get a second
opinion and had a double mastectomy and hysterectomy.  Neither, it turns out, were necessary.

A Mayo Clinic Study found
that as many as 88% of those looking for a second opinion left with a new or “refined
diagnoses,” and 21% had a “distinctly different” diagnoses.  

Medical second opinions can literally save
your life.

While environmental consultants are not in
the business of saving lives directly, in our experience,
environmental/scientific second opinions have provided some very stark results.

The intent of second opinions, medical, or
as is the case in our world, environmental, is not (or should not be) to
unjustly criticize.  The intent is to
objectively review the data and offer suggestions for a “refined diagnoses” and
occasionally offer a “distinctly different” path forward.

At Dragun Corporation, we began 30-plus
years ago providing second opinions, or, as we call them, peer reviews.  Below are very
brief discussions of some of these second opinions.

Second
Opinion of Groundwater Investigation

A site assessment and remediation program
that was confounding a company had many complicating factors.  When we were asked to review the project, it
was headed down a path of more investigation and remediation.  What we found, and why the subsurface data
were not making sense, was an underground storage tank that was “missed” early
in the investigation. The problem was compounded as they moved to each
subsequent phase of work.  Once this was
discovered, the other data began to make sense.  Collection of additional supporting data presented
to the regulators was convincing and the site was closed.

Second
Opinion of Remediation

An old industrial site with a lot of
“environmental history” was getting more complicated (and confusing) with each
subsequent set of data.  The calculated
groundwater flow at the site did not make sense, but a multi-million dollar
remediation was proposed nonetheless.  The
major issue uncovered in the peer-review process was improperly-screened
wells.  It was a “simple” mistake (and a
reminder of why field work is so important), but the potential consequences
could have been very expensive.  In this
case, a distinctly-different diagnoses led to a far-different (and less costly)
solution.

Second
Opinion Leads to Supreme Court

Another older industrial site that used a
common, but often problematic, chemical, trichloroethylene (TCE), was so
contentious that it ended up in a US State Supreme Court.  When the problem was first identified in the
groundwater, the client recognized that they had used TCE and “stepped up” to
take responsibility.  While operating a
groundwater pump-and-treat system to capture and treat the TCE plume, they were
approached by the state regulators to investigate a newly-discovered
plume.  The state theorized that the
plume had “escaped” the treatment system.  In this particular case, the client’s
consultant was not willing to “push back” and defend the client’s position;
they believed the best course of action was to do as the state directed.

The review of the data suggested that there
was no scientific reason to believe the escaped plume theory.  The subsequent technical and legal battles
ended in the State Supreme Court.  The
unanimous decision of the Supreme Court supported our scientific interpretation,
and the state was ordered to pay the client’s technical and legal costs (nearly
$4 million).

When should you consider a second
“environmental” opinion?  I don’t know if
there are any hard and fast rules.  From
our perspective, the requests for second opinions have come when someone is
considering a new scope of work for additional investigation, considering
remediation, or when a project is potentially headed toward litigation.  In each case, there are potentially-significant
expenses in the next step.

Often, but not always, legal counsel is
involved in this decision including vetting the firm that may be offering the
second opinion.  

Recently, we developed a list of issues we
have encountered more than once in providing second opinions.  You can download this list of “29 Potentially Costly
Soil and Groundwater Investigation Mistakes”
on our website.  This list may provide you with some guidance
as you review your data.

The findings published by the Mayo Clinic regarding medical second opinions providing both refined diagnoses and distinctly different diagnoses are quite remarkable.  And if our experience is any indication of environmental second opinions, it may be worth your effort to seek out a second opinion before taking significant action.   


About the Author

Alan Hahn works at Dragun Corporation, an environmental services headquartered in Farmington Hills, Michigan. His practical experience in the environmental business and the practical experience in marketing, allows him to develop realistic strategic business plans. His undergraduate and graduate studies are both in the environmental field (University of Michigan – Dearborn and University of Maryland). He also has substantial hands-on experience in the environmental field (both in an analytical laboratory and in collection of samples).

The Commodification of Phase I ESA’s and the Need for Innovation

Introduction

Individuals who read environmental site assessments (“ESAs”) in the early 1990’s as part of their job will likely remember the unevenness of recommendations and conclusions and the wide range in the quality of reporting.  During that time, as an in-house environmental engineer at a major law firm, I likely read more ESA reports from more environmental consulting firms than I care to remember.  To this day I still read my fair share of ESA reports from various consultants as part of my job.

Standardization

In the 1990’s there was a growing demand from users of ESA reports for some form of standardization.  Back then, and to this day, a potential buyer of a property and the associated lender used an ESA report to aide in determining the monetary risk associated with any environmental liabilities linked to a property.  The wide variety of styles, coverage, disclaimers, recommendations, and conclusions in ESA reports back in the early 1990’s made that task very hard.

More than one consultant in the 1990’s would try to absolve themselves of liability by merely stating the findings of the investigation and avoiding any recommendation or conclusions.  Others would include disclaimers that would essentially hold them blameless for all errors and or omissions.

The first standardized ESA reports that came across my desk conformed with the United States ASTM E1527 standard published in 1993.  The first Canadian ESA standard (Z768) was issued in 1994 by the Standard Council of Canada.

In Canada, the latest version of the CSA Z768 standard is what is used as starting point for conducting Phase I ESA’s.  A vast majority of ESA reports that I read begin quoting the CSA standard but with the added qualifying statement that the report is in “substantial conformance” with the standard.

Commodity

Currently, many of the major lenders in Canada have lists of approved consultants for ESA’s.  Any borrower can choose freely from the list and arrange for an ESA on a property.  Other organizations have similar lists.

The CSA Z768 standard combined with the lists of qualified consultants typically supplied by lending institutions has created, in my opinion, a commodification of Phase I ESA’s.  An unsophisticated and occasional user of environmental services would most likely choose a consultant to conduct a Phase I ESA based on price.

Sophisticated buyers of environmental services have their own favourite consultants.  To earn the trust of a regular user of ESA services, a consultant needs to be able provide a clear explanation of environmental liabilities and a strong justification for the need further investigation (i.e., Phase II ESA).  The exemplary consultant has the ability to uncover the less than obvious environmental liabilities.  All trusted consultants provide timely report in a cost-effective manner.

The advantage of the sophisticated buyers of ESA services is the experience gained from reading reports from dozens of different firms and knowledge of the revelations and oversights of each.  Even amongst sophisticated buyers, there is a level of commodification that exists as they would likely have anywhere from 4 to 5 firms (any maybe more) that they trust to do good work.

Differentiation

When being sold environmental services from consultants, I typically ask a consultant what differentiates them from their competitors with respect tot the conduct of a Phase I ESA.  In essence, I want them to articulate to me how their ESA work is superior to the competition.  The typical list of replies can be found in the table below.  Based on the majority of responses I receive, it is my conclusion that the consultants themselves are unknowingly conceding that they are selling a commodity service.  The differentiators they describe can apply to almost any firm that provides the service.

Table 1: Common Reasons Cited by Environmental Consultants for Choosing Them

“Cost effective”

“better”
“Fast turn-around time” “more effective”
“Use only experienced assessors” “more thorough”
“Experienced reviewers and supervising Staff”

“quality controls”

Innovation

So how can a consulting firm give clients what they want – more certainty on risk associated with a property – and differentiate the ESA service they provide?

I have found one consultant that I now work with has risen above the commodity Phase I ESA.  This consulting firm, through innovation, has gone beyond the bare minimum of a Phase I ESA that would conform to the CSA Standard and utilized technology to enhance the Phase I ESA.

A standard Phase I ESA requires only observation as part of the site visit portion of the ESA.  The use of intrusive testing is saved for a Phase II.  However, with the utilization of field instrumentation that is non-intrusive, an enhanced Phase I can provide much more information that a standard Phase I ESA.

The environmental consulting firm, Altech Consulting Group, uses magnetic surveys as a standard part of the its Phase I ESAs.  A magnetometer measures the magnetic potential underground through non-obtrusive means.  It can identify the presence of underground steel tanks or drums, and other ferrous buried objects (i.e. pipes).

Enhanced Phase I ESA – Seeing underground with the magnetic survey

By including a magnetic survey as a standard part of a Phase I ESA, Altech has more information from which to base its conclusions and recommendations.  It can utilize the information found from the magnetic survey along with historical data and interviews with persons knowledgeable of the property to have a stronger argument for the need for a Phase II ESA or not.

Chad Stewart, the head of the environmental investigation group at Altech stated “one of the biggest sources of environmental liability at the majority of sites is leaks from underground storage tanks or pipelines.  By including a magnetic survey as part of our Phase I ESA, we are in a much better position to state if further intrusive investigation is required.  Our approach saves the client time and money.”

As I said earlier, I have seen my share of ESA reports from numerous consultants.  Their a some that are very quick to recommend a Phase II ESA based on the limited information that only hints that a UST may have been present.  A vast majority of the subsequent Phase II findings reveal that there is no contamination.

Any means of bringing non-intrusive testing and measurement techniques into use for a standard Phase I ESA is a good thing in my opinion.  The more information that can be obtained during the Phase I ESA, the better the decision making on the need for a Phase II.

By not having to perform an unnecessary Phase II ESA, a client could save tens of thousands of dollars.  By performing a Phase II ESA based on information obtained from a magnetic survey that is a standard part of a Phase I ESA, a client could potentially save hundreds of thousands of dollars.

Avoiding Common Phase Two ESA Errors – Part 2

By: Bill Leedham, P.Geo, QP, CESA.

Last month I discussed some common mistakes I have encountered in reviewing Phase Two Environmental Site Assessment reports, specifically in the initial planning stage, now it’s time to turn our attention to recognizing and reducing errors during the Phase Two ESA field work.

Sometimes, deficiencies that occur in the planning stages of a Phase Two ESA transfer into errors in field procedures.  This can be caused by poor communication between the project manager and field staff (i.e. the PM neglects to inform field personnel of specific project requirements, and/or field staff forget to include important sampling media or potential contaminants of concern).  Full, two-way communication is vital to successful completion of any Phase Two ESA. It’s not enough for senior staff to just assume that less experienced team members understand all the complexities of the sampling plan; nor is it acceptable for a project manager to fail to provide adequate guidance and answers to questions from the field.  I have always thought it was important for junior staff to ‘know what they don’t know’ and encouraged them to ask questions at any time.  When project managers are ‘too busy’ to answer questions and simply tell their staff to ‘figure it out themselves’ everyone loses.

Photo Credit: All Phase Environmental

Despite good intentions and full communication, deficiencies can still occur.  Some are the result of inexperience compounded by poor judgement; some are due to budget limitations or staffing shortfalls; and some are caused through poor sampling protocols.  Some of the more common field sampling errors can include: failure to sample all relevant media at a Site (e.g. no sediment or surface water sampling is undertaken despite the presence of a potentially impacted water body); failure to consider all potential contaminants of concern (e.g. sampling only for petroleum hydrocarbons at a fuel storage site and not volatile parameters like BTEX); failure to sample in locations where contaminants are most likely to occur or be detected (e.g. sampling only surficial or near surface soils, and not at the invert of a buried fuel tank or oil interceptor, or failure to sample groundwater in a potable groundwater situation); and lack of field or lab filtering of groundwater samples for metals analysis (failure to remove sediment prior to sample preservation can skew the results for metals analysis).

Inadequate sampling and decontamination procedures can also bias lab results, leading to inaccurate or faulty conclusions.  When samples are disturbed (such as grab samples of soil collected directly from a drill augur that has travelled through an impacted zone) or collected improperly (e.g. compositing soil samples for analysis of volatile components); the test results can be biased and may not be representative of actual site conditions.  Similarly, failure to properly clean drilling and sampling equipment can result in apparent impacts that are actually the result of cross contamination between sampling points. Consider using dedicated or disposable sampling equipment to reduce this potential. A suitable quality control program should also be implemented, including sufficient duplicate samples, trip blanks, etc. for QA/QC purposes, and inclusion of equipment rinsate blanks to confirm adequate decontamination.

These are only a few of the more common field sampling errors I have come across. In an upcoming article I will discuss other practical methods to reduce errors in Phase Two data interpretation and reporting.

About the Author

Bill Leedham is the Head Instructor and Course Developer for the Associated Environmental Site Assessors of Canada (AESAC); and the founder and President of Down 2 Earth Environmental Services Inc. You can contact Bill at info@down2earthenvironmental.ca

 

This article first appeared in AESAC newsletter.

United States: New Standard Of Care Document On Environmental Due Diligence (“Phase I”)

Article by Jerrold Samford and Andrea L. Rimer

Troutman Sanders LLP

The GeoProfessional Business Association (GBA) – formerly known as ASFE – recently released a new study on the standard of care for conducting Phase I environmental site assessments.  This document is the fourth in a series of studies the organization has produced since the inception of the due diligence process in the early 1990’s.  The study is an evaluation of approximately 200 Phase I reports from across the country, written between 2007 and 2010. The results of the study will be a valuable tool in determining whether a Phase I conducted during that time period meets the standard of care or not.

In completing the study, the GBA compared the Phase I reports to the elements of the ASTM Standard E1527-05, applicable during the time period of the reports, to see whether the reports included the elements of the ASTM standard. Although nearly all of the reports stated they were completed in accordance with the ASTM Standard, the committee reviewing the reports concluded that not a single report actually complied with every component required by the Standard. Consequently, the GBA study finds that strict compliance with the ASTM standard does not constitute the standard of care for conducting Phase I evaluations of commercial real estate.

The committee’s conclusion could become critical in legal actions where the issue at hand is whether appropriate environmental studies were completed prior to completion of the transaction. The GBA study could be used to show a court that because strict compliance with the ASTM Standard is not commensurate with the standard of care, a purchaser could still be in compliance with the All Appropriate Inquiry provisions of CERCLA even if some of the elements of the ASTM Standard had not been completed.

The study is available through the GeoProfessional Business Association at www.geoprofessional.org.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

This article was first published on the Troutman Sanders website.

_______________________

About the Authors

Jerrold “Jerry” Samford is an environmental compliance specialist at Troutman Sanders.  He is a certified professional geologist in the State of Virginia, a licensed professional geologist in the States of North Carolina and Kentucky.

Andrea L. Rimer is a partner at Troutman Sanders.  She has a national practice representing clients on transactional and regulatory matters involving brownfields redevelopment, hazardous site investigation and cleanup, hazardous waste management, and state and federal Superfund and voluntary remediation programs.

 

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