June 2013 LSPA Newsletter

Considerations for Site Management: LSP Practice in Uncertain Times
By: Duff Collins, LSP, Woodard & Curran, and Jim Decoulos, LSP, Decoulos & Co., Loss Prevention Committee 

As we all know, in early 2013 the Massachusetts Department of Environmental Protection (MassDEP) proposed changes to the Massachusetts Contingency Plan (MCP).  MassDEP's current goal is to promulgate changes to the MCP this fall, with an effective date in late 2013 or very early 2014.  There are several proposed changes which, if enacted, will broadly affect response actions at all disposal sites.  Each time the regulations change, there is a corresponding change in the way LSPs must perform assessment and response action work.  We offer a few recommended steps that practitioners might consider in wading through the currents of change.  So, what should you do?  Have faith, we've been here and done that before!  Read on... 

The practice of assessing and remediating sites has been evolving ever since the Commonwealth first codified Chapter 21E in 1983.  In 1988, the long awaited (and overdue) first MCP was enacted.  By 1990, it was clear that the original intent of the statute was going unmet- many site cleanups were stagnantly languishing, awaiting MassDEP review and approval of Responsible Party-proposed actions.  Voila, through hard work and the visionary foresight of a diverse group of stakeholders encompassing the public, for-profit, and non-profit sectors, the LSP program was born!  And so was a MAJOR set of revisions to the MCP. There have been at least four major changes to the MCP since 1993.   Each time the rules change, LSPs are faced with the need to assess the impact of the new rules on their work and on their clients. 

Based on the currently proposed changes to the MCP, there will be several evolving areas of practice to which LSPs will need to attend.    While we wait for MassDEP to consider the public comments and modify the final language, we are left in a transition period of anticipating change and advising our clients on the most appropriate course of action. 

The MCP changes will affect how all RPs and their LSPs conduct response actions under the MCP.  This is very relevant to LSPs and our practice because our compliance with the changed regulations is a key component of our licensure via the LSP Board of Registration's Rules of Professional Conduct.  These rules define Professional Competency at 309 CMR 4.02.  Section 1 states that:   

In providing Professional Services, a licensed site professional shall act with reasonable care and diligence, and apply the knowledge and skill ordinarily exercised by licensed site professionals in good standing practicing in the Commonwealth at the time the services are performed. 

More broadly, Professional Competency addresses our obligations to conduct assessment and response action work with a certain professional standard of care.  However, as the Supreme Judicial Court noted last year in a case involving an architect, "professionals do not have a duty to be perfect in their work."   LeBlanc v. Logan Hilton Joint Venture et al., (2012).  The Court went on to state that professionals are "expected to exercise 'that skill and judgment which can be reasonably expected from similarly situated professionals.'" Klein v. Catalano, (1982). 

The reasonable expectation of a professional's conduct is often a subjective issue upon which reasonable people can differ.  If the difference in opinion (or LSP Opinion) is based on sound facts, is documented, and the decisions are reproducible, then the professional, in our case the LSP, is on firm ground. 

How should the conscientious LSP ensure that she/he is on firm ground during this transition period?  The following suggestions apply to our work in general, but are particularly important during times when the regulatory requirements are in a state of flux: 

  • Review the proposed MCP rules carefully and offer your talents and advice to MassDEP if given the opportunity;
  • Assess what impacts there are to your current work, on a project by project basis;
  • Understand why MassDEP is adopting certain changes.  For instance, regarding source control and non-aqueous phase liquids, MassDEP  is moving away from undocumented assumptions towards national standards that have been promoted by organizations such as ASTM and ITRC;
  • Plan and communicate a path of change and, if appropriate, adjust your work procedures to the changes;
  • Document your work, thoroughly and clearly, particularly where making judgments regarding facts and conditions.  Conduct and document peer review of your work;
  • Review and heed the LSP Board's Rules at 309 CMR 4.03 "Professional Responsibility";
  • Review potential impacts, both positive and negative, to your recently completed response action work;
  • Participate in LSPA and other regulated community events and activities to keep up with how peers are assessing and implementing the changes; and
  • Keep copies of the old rules and guidance documents for reference. 

One thing is certain - there will always be change.  And we are all participants in the process of change.  As LSPs and environmental professionals, we must work with MassDEP in the Agency's attempts to develop regulations that are both reasonable and protective, help our clients understand the regulatory changes which impact their individual situations, and - for our own protection - document our attempts to address these changes as they occur.    

Please consider joining the LSPA's Loss Prevention Committee or Technical Practice Committee if you wish to explore these issues further.