Role of the Environmental Consultant

You may be aware that environmental requirements are applicable to your company or that some environmental problem already exists. Where do you turn for help?

First take environmental matters seriously. In recent years the financial and legal consequences of environmental problems have expanded dramatically.

Second, recognize that you may need both technical and legal assistance. As the environmental requirements have expanded and become more detailed, consultants and attorneys have become specialized to address them. You probably need to go beyond general practitioners in these areas.

Third, carefully define the issue. This will require an environmental professional who not only specializes in the environmental area, but also has a broad understanding of both the technical issues and regulatory process.

Fourth, you may need specialized environmental services.

They might include:

• air/water/soil testing
• detailed design and construction services
• laboratory
• legal
• professional engineering

For example, the construction contractor may do the actual hands-on work, such as hazardous waste clean-ups or tank removal. However, some environmental consultants provide clean-up work, either with in-house capability or by subcontracting to other parties.

Selection Methods of the Environmental Consultant

An environmental consultant will oversee your environmental project and ensure that it is completed in a manner which will not only satisfy you but also meet all applicable state and federal regulations.

Your environmental consultant also will be responsible for developing a project plan and hiring or assisting in hiring any subcontractors which may be needed. Contacting your lender early in the search process will ensure that your efforts are coordinated with your source of financing.

Suggested steps to follow in selecting an environmental consultant:

1. Business defines project (e.g. hazardous waste, storage tank, asbestos)
2. Business determines role of consultant (e.g. assessment, survey, plan design, construction oversight)
3. Contact firms, request statements of qualifications (e.g. lists in yellow pages, DCCA, engineering associations)
4. Short list up to six firms based upon review of qualifications and request proposals from these firms (you may want firms to visit site) 5. Interview firms following review of proposals
6. Rank the top three firms in order of preference
7. Develop Scope of Work and negotiate fee with top ranked firm only
8. If agreement reached, finalize contract
9. If no agreement, drop number one firm and begin negotiations with second ranked firm and so on until agreement is reached.

Things to consider in evaluating an environmental consultant:

• professional reputation
• references
• licenses, registrations, certifications
• professional association activities
• professional awards
• insurance/amount and type
• Quality Control/Quality Assurance procedures
• experience in dealing with your particular problem and successful completion of similar projects in    your state
• identity and qualifications of project manager
• approach to project
• subconsultants
• ability to meet or exceed schedule
• location of firm
• financial stability
• ability to communicate
• creativity

Attorney Selection

You may consider hiring an attorney familiar with the particular environmental laws and regulations affecting your project. Given the complexity of environmental laws today, it is wise to retain the services of an attorney who concentrates his or her practice in the environmental field. Other resources for finding an environmental attorney include: referral from you current legal counsel, the Environmental Services Directory published by DCCA and the Directory of Environmental Attorneys, published by Prentice Hall Law & Business.

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Criteria to consider when selecting environmental counsel:

• Capability to provide the legal support and resources required to successfully complete your project.
• The attorney's experience in handling your particular problem.
• The attorney's relationship with the government.
• The attorney's familiarity with regulatory agencies with jurisdiction over your project.
• The identity of the attorney who will be working on your matter.
• The attorney's experience with environmental consultants and contractors.
• The attorney's experience with businesses similar to yours.
• Potential conflicts.

The Team Approach

A "team" approach is essential to the successfully completion of any environmental project. This team could consist of you, your environmental consultant, subcontractors such as construction contractors, and environmental legal counsel. For your project team to be effective, however, it is imperative that the environmental professionals you consider hiring are appropriate for both you and the task at hand.

The Contract

After you and your consultant have defined your project, a contract should be prepared that reflects the parties' understanding of the terms and conditions of the services to be provided. For small scale projects, the agreement may simply consist of a letter referencing an attached Scope of Work and the consultant's general contract terms and conditions or it may consist of a purchase order with an attached Scope of Work. For more complex projects, the agreement may be several pages long and provide for a number of contingencies that may arise. Regardless of the form, you should be sure that the following provisions are considered.

Scope of Work

The scope defines the work that you and the consultant have agreed upon and should be as detailed as possible. Sometimes contracts include a general description of the Scope of Work and reference an attached Scope of Work or set of drawings and specifications that provide the details of the work. For cases where you cannot precisely define the Scope of Work, provide as much detail as is known about the project and a description of the consultant's project approach. The contract should provide a mechanism for owner participation in modifying the Scope of Work, such as a change order, during the project.

Compliance with Applicable Laws

The consultant and all contractors should perform their services in accordance with all applicable laws and regulations to ensure that work required by law, but not specifically identified in the Scope of Work, is included.

Confidentiality

To prevent the unauthorized disclosure of the information given to the consultant or information generated by the consultant, include a confidentiality provision in the professional services agreement.

Cost and Payment Terms

The cost and payment terms, together with the Scope of Work, describe the essence of the bargain between you and the consultant. The cost provision should clearly spell out the amount the consultant will be paid.

The cost provision should clearly state on what basis the consultant is being paid and how the consultant is paid. Payment may be in one lump sum or progress payments made over the term of the contract. The contract should define project completion. Termination provisions also should be included stating under what circumstances the contract can be terminated.

Insurance

Consultants should be able to provide comprehensive general liability, professional liability (also known as "errors and omissions"), comprehensive automobile liability, and worker's compensation and employer liability insurance. In addition, consultants and contractors who specialize in hazardous waste or asbestos can often provide insurance coverage against certain environmental liabilities.

Limits on Liability

Consultants

The ways in which consultants may limit their liability include the following:

• To the amount of the contract fee (meaning profit, not total dollars to be paid by you under the contract).
• To the amount paid to the consultant (not limited to profit)
• To amounts that will be covered by the insurance the consultant agrees to carry as listed in the agreement.
• To a fixed dollar amount.

Limitations on liability should be carefully reviewed. Although some consultants may not be willing to perform the work with out some limitation on liability, you should carefully consider limitations in the agreement

Your Limitations

In addition to requiring insurance in sufficient limits, you can attempt to limit your liability by insisting that the consultant indemnify you for the consultant's activities. Many contracts also provide for owner indemnification of the consultant under certain situations. For more information, contact the Consulting Engineers Council of Illinois at 625 South College, P.O. Box 1604, Springfield, Illinois 62705. The phone number is 217/528-7814.

When in doubt, have an attorney review the contract.

This article is reprinted with permission from the booklet. How to Select an Environmental Consultant, published by the Illinois Department of Commerce and Community Affairs and the Illinois Environmental Protection Agency, in cooperation with the Governor's Small Business Environmental Task Force.•

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