Time to Revisit AAI EP Definition?

Many environmental lawyers, consultants and professional organizations were deeply disappointed when EPA bowed to pressure from other government agencies and severely weakened the definition of Environmental Professional (EP) in its “All Appropriate Inquires” (AAI) rule that was published on November 1, 2005.

The EP definition in the proposed AAI rule included minimum levels of education and experience. Specifically, the proposed EP definition was limited to persons with a Baccalaureate degree or higher in specific disciplines of science and engineering along with a specific number of years of experience unless the individual was licensed as an environmental professional by a state, tribe or the federal government

As EPA stated in its preamble to the final rule, a significant number of commenters applauded the proposed definition of an environmental professional and stated that it may increase the rigor and caliber of environmental site investigations. However, EPA received comments from other federal agencies who were concerned that the proposed EP minimum qualifications would preclude many long-term employees who had been conducting environmental site assessments but lacked college degrees. EPA decided to “dumb down” the definition and eliminated the educational requirement. So, even those without a high school education could qualify for what is supposed to be a professional position.

EPA could have grandfathered these long-time employees who did not meet minimal educational requirements so that they could have continued working with their agencies until they retired while the rest of the private sector had to comply with more rigorous standards. After all, if barbers, hair stylists, electricians and other trades are required to have minimal training and education to ensure public safety, one would think that persons determining if releases of hazardous substances present risks to human health or the environment should have minimal training and education as well.

However, perhaps inspired by the Emma Lazarus poem appearing on the base of the Statute of Liberty (“Give me your tired, your poor … The wretched refuse of your teeming shore. Send these, the homeless, tempest-tossed to me, I lift my lamp beside the golden door!”), the agency not only watered down the EP definition but also completely eliminated the grandfather provision. EPA then compounded this error by allow non-EPs AAI tasks provided that person was conducting the task under the supervision of an EP. What this has translated into is a non-EP doing all the work, inserting the information in a template with an imaged signature of an EP placed on the EP certification page.

Now it is true that many without a science degree can exhibit sound judgment and even write better reports. However, the process of earning a decree tends to weed out the unmotivated, lazy and inept. Moreover, having to obtain and maintain a license tends to instill a sense of professionalism which is so lacking in the industry today. In addition, since the rule relies so much on professional judgment, it would seem to be important that persons take time to learn their craft. Lawyers do not start getting real responsibility until at least their third year. This is the same with many other professions.

EPA and others felt the market place would punish those who performed substandard work. However, the underlying assumption is that property owners would be in a position to discern the difference between good and bad reports. The truth is that most cannot because they are unfamiliar with environmental issues just as probably most patients are unable to distinguish among cancer doctors. Moreover, clients tend to respond to delivery time, price and optics.

A government licensing will never serve as a proxy for identifying those persons who exercise good professional judgment. Minimal education requirements and the need to take a test will never prevent incompetent, indifferent or uninterested individuals from qualifying to do the work. However, minimal education and licensing requirements could certainly help screen out lots of unqualified, unmotivated, lazy, unskilled, apathetic, careless, indifferent, uninterested, inattentive, lackadaisical, neglectful, and unscrupulous types looking to earn a buck without having to break a sweat.

There is widespread consensus among environmental lawyers that there has been deterioration in the quality of the phase 1 reports since the promulgation of the AAI rule, and the singular reason for the low-quality reports has been the EP definition coupled with the fact that virtually all the AAI tasks can be done by a non-EPA. EPA has facilitated and exacerbated this race to the bottom. The problem with the due diligence market is that basically anyone can do a phase 1 and have a buddy who is an EP signoff on the report to make it AAI compliant. Asbestos, LBP and mold inspectors have to be certified or licensed. We see no credible reason why EPs should not also have to be licensed. Otherwise, the industry is going to be ruled by the few dishonest and incompetents who are taking the industry on downward death spiral….just like the dishonest mortgage brokers took down the subprime market.

But there may be a ray of hope to fix this problem. EPA has proposed to amend the AAI rule to add the ASTM E1527-13 standard practice as an acceptable alternative method for satisfying AAI. Technically the proposed amendment is limited to this specific purpose. However, the AAI door has been opened and presumably EPA will have to respond to comments it receives suggesting that AAI rule is fundamentally flawed because of the EP definition based on experience over the past eight years.

The vast majority of EPs are hard-working and highly skilled. Unfortunately, because this industry has virtually no entry barriers, the few unsavory types can have a disproportionate impact on the rest of the industry.

If you believe the EP definition needs to be fixed and/or that some of the important tasks should be performed by an EP, send a comment to EPA before midnight Monday night, September 16th. Your comments can either be uploaded directly to the docket at: http://www.regulations.gov/#!docketDetail;D=EPA-HQ-SFUND-2013-0513 and click on “comment now” button where person can either copy text into the block or upload file. Alternatively, you can simply email your comment to: superfund.docket@epa.gov

If the agency fails to meaningfully respond to the EP comments, it risks being sued for acting arbitrary and capriciously for not taking action in the face of comments from the industry on what is probably the most important aspect of the AAI rule.

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