Over the past several months, EDR Insight highlighted five real-world cases involving litigation against environmental due diligence professionals. These cases involved such technical topics as Phase I ESA updates, assessing vapor migration risk, historic search intervals, state agency reporting errors, and the degree of “obviousness” of site contamination.
Each case was unique and came with its own “Lessons Learned,” but holistically, there were also general lessons that are good food for thought for any new environmental professionals out there—as well as veteran EPs. Here’s our short list to consider as you write your own reports, document your findings and cover your bases.
Seven Ways to Protect Yourself from Professional Liability
1. Document. Document. Document.
When you rely on important facts (e.g., the depth to groundwater, soil type, groundwater flow direction from a Phase II investigation, etc.), be sure to reference the source.
2. Put All Assumptions in Report.
When you rely on important assumptions (e.g., groundwater flow following surface topography, homogenous soil in the subsurface, etc. ), be sure to clearly state this in the report.
3. Condition Your Opinions.
When you provide your professional opinion, be sure always to condition it (e.g., clearly identify what you base it on).
4. Include All Limiting Conditions.
Be sure to identify in your terms and conditions the limiting conditions identified in the ASTM E 1527 standard (e.g., This investigation is not exhaustive and uncertainty is not eliminated.)
5. Define a Clear Scope of Work.
Describe your scope of work clearly and as comprehensively as possible.
6. Make Reliance Crystal Clear.
State who can rely on the report very explicitly.
7. Stay Within the Four Corners of Your Contract.
Make sure you clearly stated what you were contracted to do, and then you did exactly that. No more. No less.
MISS OUR SUMMER SERIES?
This five-part series was based on a popular track from our 2015 Due Diligence at Dawn program. Drawing from years of expertise as an expert witness in these cases, Anthony Buonicore, P.E., BCEE, QEP and CEO of The Buonicore Group, guided hundreds of DDD attendees through five real-world case studies. The discussion of each case study addressed these questions: Was the “standard of care” provided by the EP deficient? How did the EP’s performance compare with “customary practice”? Did the scope of work meet the requirements in ASTM E 1527?
If you missed our summer series, be sure to check them out here by topic:
“How far should you go in reviewing another consultant’s previous Phase I for an update?”
“Wherever you are, you should be keeping tabs on what your state agencies are doing on vapor. The courts will look to you as the expert.”
“If you exclude things like asbestos and lead-based paint, it means you’re including everything else. That was the ‘death knell’ for the consultant being sued here.”
“If you are following the E1527 standard for these types of properties, then your Phase I ESA should include a limitation that the investigation may not identify all past tenants on the property and therefore may miss a high-risk tenant like a dry cleaner.”
”If something does not pass the “smell test,” it probably is worth doing additional investigation.”