The following column by GAP Senior Advisor John Dragonetti is reprinted from the August 1998 issue of The Professional Geologist, a publication of the American Institute of Professional Geologists . It is reprinted with permission.
With the dawn of the nineties, issues related to hazardous waste site mitigation and the development of environmental site assessments began to loom large on the public agenda. The geotechnical community became a major player in such environmental endeavors. However, the obvious impact such projects had on human health and safety, caused The American Society for Testing and Materials (ASTM) to contemplate the development of standards for professional performance involving such undertakings.
ASTM is a highly respected organization with a record of excellence in the formation of standards for industrial materials. Established June 16, 1898 as the American Section of the International Association for Testing Materials, it is presently celebrating its 100th anniversary, although it did not acquire its present name until 1961. Originally committed to generating product standards, activities were expanded significantly over time and embraced environmental issues with the emergence of the modern environmental era in the 1970s.
ASTM operates through an extensive consensus-building process utilizing numerous committees often with substantial memberships. The task of developing standards and guidelines to govern the specialized practices of environmental and other technical professionals is currently under the purview of two committees; D-18 on Soil and Rock, and E-50 on Environmental Assessment. D-18 consists of 1035 members and has promulgated 301 standards and 63 guides since it was established in 1937. E-50 was created in 1990 with 1100 members, and has issued 13 standards, 7 guides, and 6 practices.
Beginning in 1990, those who would be subject to the prescribed terms "standard guide" and "standard practice" communicated their concerns to several professional societies who then initiated a continuous dialogue with ASTM. The discussions spanned several years during which time numerous engineering and geotechnical societies voiced their distress over the proposed prescriptive standards throughout ASTM's several layers of management, boards, and committees.
The points offered for consideration involved the apparent lack of professional judgement as an element of the proposed standards; the belief that a prescriptive standard limits innovation or the application of technological improvements; and, perhaps the most significant issue, the apprehension that a professional who does not precisely follow the prescriptive standard could be deemed negligent in a court of law. Although there was no case law to support this claim, there were reportedly several instances where "out-of-court" settlements were negotiated partially to avoid legal expenses; but of greater consequence, was the specter that ASTM's excellent reputation related to product standards would prevail in the courts, even though the prescribed standards may only represent suggested practices or guidelines.
The controversy raged on with several minor adjustments to the proposed standards, but not to the satisfaction to those practicing in the geotechnical field. ASTM representatives apparently did not consider the arguments of sufficient validity to alter the belief that their prescribed standards were merely suggested modes of operation. Unwavering in their conviction, the engineering societies asserted that lawyers argued and the courts and juries generally accepted an ASTM standard as an inflexible decree.
Formation of the Advocates
In February 1997, several associations engrossed in geotechnical activities became frustrated with the apparent lack of response to their concerns, formed a coalition called Advocates for Professional Judgment in Geoprofessional Practice (APJGP). The group presently consists of 17 societies representing over 100,000 members.
For over a year, APJGP representatives met with various elements of ASTM in an attempt to replace the term "standard" with something more flexible or, at least, devise "caveat language" which would clarify the terms "guide" and "practice" and introduce the relevance of professional judgement within the definitions. Finally on June 1, a facilitated joint ASTM/APJGP workshop was held at the Cosmos Club in Washington, D.C.
The stated objectives of the workshop were:
Participants included key management personnel from ASTM, and the following organizational members of APJGP: the Association of Independent Scientific Engineering and Testing Firms (ACIL), Professional Firms Practicing in the Geosciences (ASFE), the American Consulting Engineers Council (ACEC), the Geo-Institute (G-I) of the American Society of Civil Engineers (ASCE), the Hazardous Waste Action Coalition (HWAC), the National Council for Geo-Engineering and Construction (GeoCouncil), the United States Universities Council on Geotechnical Engineering Research (USUCGER), and AIPG.
An Understanding is Reached
Agreement was achieved on the following caveat language for the terms "standard guide" and "standard practice."
This guide offers an organized collection of information on a series of options and does not recommend a specific course of action. This document cannot replace education and experience and should be used in conjunction with professional judgment. Not all aspects of this guide may be applicable in all circumstances. This ASTM standard is not intended to represent or replace the standard of care by which the adequacy of a given professional service must be judged, nor should this be applied without consideration of a project's many unique aspects. The word "Standard" in the title of this document means only that the document has been approved through the ASTM consensus process.
A standard practice is a set of instructions for performing one or more specific operations. [The remainder of the definition is the same as shown above for the term "guide."]
In order to assure implementation, ASTM management agreed to present the caveat language to the appropriate committees and boards for adoption stressing that it had been negotiated at the workshop after painstaking deliberations. As of this writing, ASTM's D-18 committee has adopted the negotiated caveat language. The workshop participants hope the E-50 committee will take similar action, and that necessary board approval will be forthcoming.
However, even with favorable action by ASTM, there is no assurance that the geotechnical community will not have to grapple with liability questions. That phenomenon remains for the courts to decide.
The Government Affairs Column is a bimonthly feature written by John Dragonetti. John Dragonetti is the Senior Advisor the American Geological Institute's Government Affairs Program.
This article is reprinted with permission from The Professional Geologist, published by the American Institute of Professional Geologists. AGI gratefully acknowledges that permission.
Please send any comments or requests for information to the AGI Government Affairs Program at firstname.lastname@example.org.
Contributed by John Dragonetti, AGI Government Affairs.
Posted August 10, 1998
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