To cut to the chase, we are concerned that the UST Fund, particularly some of the technical review staff, may occasionally abuse their discretion by making decisions regarding reimbursement payments that are at best inappropriate, may negatively affect established business relationships, and may threaten to jeopardize the compliance status of the property owner/UST Fund claimant. We are not alone in this concern, as there are some environmental consulting firms that refuse to do any work involving UST Fund reimbursements. We have seen instances in which it appears that personality issues of Fund reviewers stand in the way of effectively implementing the overarching purpose of the Fund which is to facilitate cleanup of leaking UST sites.
There are many examples that can be given of Fund decisions causing project management problems, delays in payment, and cessation of work due to Fund-caused disputes. However, space allows only a few to be included here. If you are not involved in the actual projects, some of the issues may seem trivial. However, consultants and contractors are not enamored at working for free or spending their own money and then not getting paid. This information is based on our own experiences and on that of other consultants and attorneys involved in UST Fund projects.
The Fund has on many occasions decided to unilaterally stop paying for services at rates or prices that were previously approved for the same site. This leads to short-paid invoices and can cause disputes to erupt between the parties.
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Decisions by the Fund to not pay for agency-required permit-related work lead to the consultant being discharged by the claimant following disputes with the Fund as to payment for work completed. A new consultant was procured but, due to the dispute between the original consultant and the claimant over money the Fund deemed ineligible for reimbursement, processing of subsequent reimbursement requests for the new consultant stopped because the claimant could not show proof of payment of the prior consultant's invoices. The replacement consultant worked on the site for the claimant without getting paid for over a year.
2. Second-Guessing Local Agency Technical Decisions is not Appreciated
Some of the most troubling Fund decisions are the second guessing and rejection of technical decisions that had already been made between the local agency and the technical consultant. One instance resulted in work stopping at the site because the Fund decided that the conclusions of the consultant and the agency representative should be changed. Both the consultant and agency representative were very experienced in dealing with contaminated sites, and since the County-approved work had already begun, the Fund's decision to not pay for work they deemed “inappropriate” frustrated all of the parties involved. The ensuing dispute lead to a work stoppage with all cleanup activities ceased. Needless to say, the County representative was livid at the Fund technical staff interjecting itself into the decision making of the local oversight agency.
3. Even Law Firms are not Immune
Even lawyers and law firms are not immune to the negative fallout from Fund decisions. For the legal practitioner involved with UST Fund projects, unworkable circumstances can arise in which the client (the UST Fund claimant) has gotten so distressed with the Fund and their consultant due to decisions of the Fund to withhold payment for completed work that the claimant decides to forgo further work, despite agency directives. Attorneys have seen their clients slip into non-compliance status because of disputes precipitated by the Fund withholding reimbursement money.
4. Technical Review Staff Needs Closer Scrutiny
Both a consultant and a very reputable law firm were dismissed from an active UST Fund site following a dispute precipitated by Fund decisions to not approve a significant amount of charges for work done on a project. According to a representative of the law firm, the loss of the client and the unpaid invoices for legal services performed stem from inconsistent policy implementation by various Fund staff. |
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We assume that most Fund sites experience few of the problems discussed above. However, there are situations that arise based on either poorly implemented or inconsistent internal Fund policies or simply unchecked and unprofessional personality quirks of Fund technical reviewers that can be the direct cause of severed business relationships, lost clients, and unpaid invoices. The Fund technical staff needs to realize that if reputable consultants are not paid for the work they conduct on these projects, then reputable consultants will refuse to work on Fund projects.
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