STATE OF NORTH CAROLINA



STATE OF NORTH CAROLINA IN THE OFFICE OF

ADMINISTRATIVE HEARINGS

COUNTY OF WAKE 05 BOG 0149

____________________________________________________________________________

James W. King, PG, )

Cary Environmental Consultants )

Petitioners, )

)

v. ) PROPOSAL FOR DECISION

)

North Carolina Board of )

Licensing of Geologists, )

Respondent. )

____________________________________________________________________________

This contested case was heard before Senior Administrative Law Judge Fred G. Morrison Jr. on May 26, 2005, in Raleigh, North Carolina. James W. King and Cary Environmental Consultants (“Petitioners”) are requesting review of the North Carolina Board of Licensing of Geologists’ (“Respondent”) proposed disciplinary action for violations of the Geologists Licensing Act or the rules duly promulgated by the Respondent. Specifically, the Respondent has proposed suspending Petitioner King’s license for one month and maintaining a letter of reprimand in the Petitioner’s file for violations of Board Rules under N.C. Admin. Code tit. 21, r. 21.1101(b)(1), r. 21.1101(b)(2), and r. 21.1101(d).

APPEARANCES

For Petitioner: For Respondent:

Bradford A. Williams, Esq. Stormie D. Forte, Esq.

Holt, York, McDarris, & High, LLP Assistant Attorney General

Two Hannover Square N.C. Department of Justice

Suite 2010 9001 Mail Service Center

Raleigh, North Carolina 27601 Raleigh, North Carolina 27699-9001

STATUTORY SECTIONS AND RULES IN QUESTION

N.C.G.S. § 89E; N.C.A.C. tit. 21, r. 21.1101(b)(1); N.C.A.C. tit. 21, r. 21.1101(b)(2); N.C.A.C. tit. 21, r. 21.1101(d)

ISSUE

1. Whether the Respondent acted properly and without error in proposing a one month suspension of Petitioner King’s license and maintaining a letter of reprimand in the Petitioner’s file for violations of Board Rules under N.C.G.S. § 89E, N.C. Admin. Code tit. 21, r. 21.1101(b)(1), r. 21.1101(b)(2), and r. 21.1101(d)?

TESTIFYING WITNESSES

Petitioner:

1. Frances Wagner Cope, former owner of the site (Wagner Property)

2. David LaTowsky, P.E., Armstrong Environmental Services

3. George Matthis, Head, UST Trust Fund Branch, N.C. DENR

4. James King, P.G., Cary Environmental Consultants

5. Jared King, Cary Environmental Consultants

Respondent:

1. Macklin Armstrong, P.G., Armstrong Environmental Services

2. Ivan K. Gilmore, P.G., Chairman, N.C. Board of Licensing of Geologists

3. Karen Harmon, Hydrogeologist II, N.C. DENR, RRO, DWM, UST Section

4. Robert Davies, P.G., UST Supervisor, N.C. DENR, RRO, DWM, UST Section

EXHIBITS RECEIVED INTO EVIDENCE

Petitioner:

1. NC DENR, Leaking Petroleum UST Cleanup Funds, Instructions for Completing a Reimbursement Claim and Preapproval Form dated 3-1-03

2. NC DENR, UST Section, Guidelines for Assessment and Corrective Action dated 4-01

3. Non-commercial Fund Reimbursements Letter signed by signed by George C. Matthis, Jr., Head, UST Trust Fund Branch dated 8-14-03

4. NC UST Primary Form for Former Wagner Residence Noncommercial UST dated 3-1-03

5. Sewer Systems Map prepared by the City of Raleigh

6. Chain of Custody Record prepared by GeoChem, Incorporated dated 2-14-03

7. Chain of Custody Record and Summary of requested analytical work prepared by GeoChem, Incorporated dated 2-14-03

8. Letter and Pre-approval Task Authorization Form prepared by Cary Environmental Consultants dated 12-27-02

Respondent:

1. Professional Services Agreement between Cary Environmental Consultants and Frances J. Wagner dated 6-6-01

2. Initial Abatement Measures Report prepared by Cary Environmental Consultants dated 8-27-01

3. Notice of Regulatory Requirements signed by John F. Maloy, UST Section dated 10-9-01

4. Limited Site Assessment prepared by Cary Environmental Consultants dated

3-20-02

5. Notice of Regulatory Requirements signed by John F. Maloy, UST Section dated 4-17-02

6. Site Specific Health and Safety (SSHS) Plan prepared by Cary Environmental Consultants dated 4-22-02

7. Invoice prepared by Cary Environmental Consultants dated 4-23-02

8. Letter signed by George C. Matthis, Jr., Head, UST Trust Fund Branch dated

4-25-02

9. Soil Assessment Report prepared by Cary Environmental Consultants dated

11-5-02

10. Invoice prepared by Cary Environmental Consultants dated 11-12-02

11. Memorandum with attached Accounting Review Form from Karen Harmon dated 12-13-02

12. Pre-Approved Task Authorization Form prepared by Cary Environmental Consultants dated 12-27-02

13. Letter signed by Karen A. Harmon dated 1-2-03

14. Task Authorization/Preapproval Denial signed by Karen A. Harmon dated 1-2-03

15. SAR Approval Rescission signed by Robert K. Davies, L.G. dated 2-7-03

16. Tank Closure and Soil Cleanup with Site Closure Request prepared by Armstrong Environmental, P.C. dated 5-03

17. Notice of No Further Action signed by Robert K. Davies, L.G. dated 5-16-03

18. Complaint from Armstrong Environmental, P.C. dated 6-24-03

19. Letter of Complaint signed by Neil J. Gilbert dated 7-26-03

20. Response from Cary Environmental Consultants dated 8-7-03

21. Report of Peer Review Investigation signed by G. David Garrett, P.G. dated

10-21-04

22. Notice of Proposed Suspension and Letter of Reprimand signed by Robert M. Upton, Board Administrator dated 12-13-04

23. Request for Hearing signed by Colleen Kochanek dated 12-30-04

24. Letter of Reprimand signed by Ivan K. Gilmore, P.G. dated 1-13-05

25. Letter of Acknowledgment/Hearing Request signed by Robert M. Upton dated

1-24-05

26. Application for Designation of an Administrative Law Judge signed by Ivan K. Gilmore, P.G. dated 1-24-05

27. Petitioner’s Prehearing Statement dated 2-25-05

28. Respondent’s Prehearing Statement dated 3-23-05

Based upon careful consideration of the testimony and evidence presented at the hearing, the documents and exhibits received into evidence, and the entire record of this proceeding, the undersigned makes the following.

FINDINGS OF FACT

1. Petitioner is a Licensed Geologist as defined under N.C.G.S. § 89E-3.

2. Respondent is an occupational licensing agency as defined under N.C.G.S. § 150B-2(4b). Respondent is an occupational licensing agency established pursuant to N.C.G.S. § 89E et seq. and vested with the statutory authority to regulate the entry of persons into the Geology profession and oversee such persons’ compliance with laws and rules, including those enacted to protect life, property, health and public welfare.

3. On June 16, 2001, Petitioner entered into a contract with Mrs. Frances Wagner Cope (Mrs. Cope) to close an Underground Storage Tank at the Fran Wagner Property, located at 4400 Boxwood Road, Raleigh, NC.

4. Petitioner prepared an Initial Abatement Measures Report on August 27, 2001. The report indicates one closure sample was collected on June 6, 2001, near the center of the base of the Underground Storage Tank through the use of a hand auger. The Site and Sample Location Map prepared by Petitioner and submitted with this report shows the tank oriented perpendicular to the residence and located partially under an air conditioning unit. Results of analysis of the soil sample indicate contamination as a result of a leak of the Underground Storage Tank. The Petitioner stated that a piezometer would be installed on-site near the tank pit area during Limited Site Assessment activities to determine if free product was present. The Petitioner also indicated the tank was previously closed in place and no soils were excavated from the site.

5. On October 9, 2001, NC DENR through the Division of Waste Management (DWM) sent Mrs. Cope a Notice of Regulatory Requirements for Risk Based Assessment and Corrective Action for Petroleum Underground Storage Tanks. Division of Waste Management directed Mrs. Cope to submit a Limited Site Assessment within 120 days, unless she could demonstrate through a Soil Contamination report, that the Underground Storage Tank and localized contaminated soil had been removed.

6. As the tank was still in place, the Petitioner prepared and submitted a Limited Site Assessment on behalf of Mrs. Cope on March 20, 2002. In the Limited Site Assessment, the Petitioner specifically states, “there are no known private water supply wells within 1500' (feet) of the subject site.” Petitioner also indicated there is no groundwater contamination, however there was significant contamination below the center of the tank. The Site and Sample Location Map prepared by Petitioner and submitted with the Limited Site Assessment show the tank oriented perpendicular to the residence and located partially under an air conditioning unit. The Petitioner submitted an analysis of three piezometer soil samples and one closure sample. Presumably, these samples were taken in relation to the orientation presented in the Site and Sample Location Map. As a result, the samples were below detection limits.

7. On April 17, 2002, NC DENR through the Division of Waste Management sent Mrs. Cope a Notice of Regulatory Requirements for Risk Based Assessment and Corrective Action for Petroleum Underground Storage Tanks. The Division of Waste Management, in reliance on the Limited Site Assessment prepared and submitted by the Petitioner for Mrs. Cope, classified the site as Low Risk.

8. On November 5, 2002, Petitioner prepared and submitted a Soil Assessment Report on behalf of Mrs. Cope to the Division of Waste Management. The Petitioner states that he collected four soil samples on October 15, 2002, for the Soil Assessment Report. The Petitioner states he collected three sidewall samples, in addition to one hand auger sample. Presumably, his samples were based on the orientation of the tank depicted in the Site and Sample Location Map. In the Soil Assessment Report, the Petitioner states the samples did not reveal any contamination beyond the immediate location of the Underground Storage Tank. Those samples were also deemed to be below detection limits. The Petitioner refers to the tank previously being closed in place.

9. On December 27, 2002, the Petitioner, on behalf of Mrs. Cope, submitted to the Division of Waste Management, a Pre-Approval Task Authorization form for the site. The request included removal of 8.4 tons of contaminated soil.

10. On January 2, 2003, the Division of Waste Management returned the Pre-Approval Task Authorization form to Mrs. Cope based on the scale maps/cross sections of the proposed excavation area and the confirmatory samples being inadequate.

11. On February 7, 2003, the Division of Waste Management rescinded the Soil Assessment Report previously submitted by Petitioner on behalf of Mrs. Cope. The Soil Assessment Report was rescinded based on several factors including:

a. The cross sections in the Soil Assessment Report did not show the closed- in-place underground storage tank.

b. The soil samples appeared to be collected at a depth equivalent to the bottom of the underground storage tank. Soil samples deeper than the base of the underground storage tank were necessary to determine the depth of soil contamination, because releases from the bottom of an underground storage tank have the tendency to migrate downward due to gravity.

c. The cross section drawings 4a, 4b, 5a, 5b, 6a, and 6b show soil contamination starting at a depth of about 4-4.5 feet, increasing with depth and then decreasing to below detectable levels at the bottom of boring CS-1 at a depth of 5.5 feet. The increasing and decreasing contamination levels and the vertical extent of the contamination are all based on one contaminated soil sample collected from the bottom of the boring. A written explanation of how it is possible to make those interpretations based on one soil sample was required based on that representation, which appears to defy conventional wisdom.

d. Soil types, based on a soil profile, needed to be shown on the cross sections as the soil type and changes in the soil profile can affect migration of contaminants.

Based on these factors, the Division of Waste Management rescinded the Soil Assessment Report because the extent of soil contamination was not adequately defined at the site. Without adequate identification of the extent of soil contamination, it was not possible to determine an accurate volume of contaminated soil at the site.

12. In March of 2003, Mrs. Cope terminated her contract with the Petitioner and hired

Armstrong Environmental P.C. to remove the underground storage tank on her site. During the process of evaluating the site, Armstrong Environmental (Armstrong) discovered the tank was not previously closed in place as the Petitioner stated in the Initial Abatement Measures Report and the Limited Site Assessment. Armstrong staff located the vent and fill pipes for the underground storage tank, which would have been removed if the tank had been closed in place.

Further, Armstrong discovered the tank contained residual material, after inserting a probing device in the tank’s fill pipe. In addition, the staff of Armstrong also determined the size, orientation and the location of the tank was different than depicted by Petitioner in the Site and Sample Location Maps submitted with the Initial Abatement Measures Report, the Limited Site Assessment and the Soil Assessment Report. Armstrong staff, utilizing a probing device and the orientation of the vent and fill pipes, determined the tank was parallel to the home as opposed to perpendicular. Further, the tank was not located under the air conditioning unit as the Petitioner depicted in previous maps. Armstrong’s orientation and location of the tank was confirmed when the tank was excavated.

13. Armstrong also discovered a 200-foot water supply well located approximately 40 feet from the release source area. The discovery of the well is another contradiction to the information supplied by the Petitioner in the Limited Site Assessment. As discussed in section six of the statement of facts, the Petitioner specifically stated there were no known private wells within 1,500 feet. Mrs. Cope testified that the Petitioner never asked her about any wells on site.

14. On April 16, 2003, the tank and contaminated soil were excavated and properly disposed of by P and F Environmental. Armstrong recommended removal of the tank based on site observations, conversations with Mrs. Cope, Mr. Robert Davies, and after review of the site assessment documents. After excavation, confirmatory soil samples were taken at the limits of excavation. Analysis of those samples indicate that contamination was below laboratory detection limits. Therefore, on behalf of Mrs. Cope, Armstrong requested that the Division of Waste Management issue a Notice of No Further Action for the site.

15. On May 16, 2003, the Division of Waste Management issued a Notice of No Further Action for the site.

16. On June 24, 2003, Macklin Armstrong filed a complaint with the N.C. Board for Licensing of Geologists alleging nine violations of the Board’s Code of Professional Conduct. The allegations include:

a. Cary Environmental Consultants performed a Limited Site Assessment based on only one soil sample, collected at depth during the initial investigation.

b. Cary Environmental Consultants’ 20-Day Report states that the tank was previously closed in place at an unknown date.

c. Cary Environmental Consultants made no documentation to remove the tank until the Soil Assessment Report was submitted to the Division of Waste Management.

d. Cary Environmental Consultants did not find the water supply well, that was located on the property.

e. The figures in Cary Environmental’s Limited Site Assessment and Soil Assessment Report incorrectly show the orientation of the tank in relation to the house.

f. Cross-Sections 4a and 4b in the Soil Assessment Report show soil contamination at different depths, and other cross sections show the vertical extent of soil contamination based on limited analytical data.

g. Cary Environmental Consultants attempted to charge the North Carolina Non-Commercial Leaking Petroleum Underground Storage Tank Cleanup Fund (Trust Fund) for the mobilization of what appears to be a portable hand-held power auger.

h. Cary Environmental Consultants waited over 18 months from the time that the release was reported to request preapproval to excavate contaminated soil associated with the Underground Storage Tank.

i. James King, apparently, was not performing [the] required fieldwork at the site or was not adequately supervising his subordinates in performing the fieldwork or preparing the various reports for the project.

17. On July 26, 2003, Respondent notified Petitioner of the complaint and informed him that an investigation would be conducted by Neil J. Gilbert, the Board’s Lead Investigator. The Respondent identified the following general allegations against Petitioner, as well as the specific allegations against him:

a. Did not adequately supervise subordinates’ fieldwork.

b. Did not adequately supervise subordinates’ preparation of project reports

c. Protracted assessment activities

d. Attempted to increase project costs

18. On August 7, 2003, Petitioner sent a letter in response to the allegations.

19. On October 21, 2004, Respondent’s Investigator prepared a Report of Peer Review Investigation. As a result of the Investigation, four out of the nine allegations in the complaint were deemed to be supported by documentation as well as interviews with Petitioner, Karen Harmon, Robert Davies, and George Mathis. The following allegations were found to be supported:

a. Cary Environmental Consultants states that the tank was previously closed in place.

The Respondent found that Cary Environmental Consultants did not check the tank to determine if it had been closed in place (i.e., cleaned and filled with inert material). It was later discovered by others that the tank was not filled with any inert material, and in fact contained some residual product.

James King contends that his Service Agreement with Mrs. Wagner [Cope] shifted the burden of responsibility for information pertaining to the tank to her. James King’s reliance on Mrs. Wagner’s [Cope’s] information about the tank being closed represents insufficient investigation. James King claimed that a HVAC unit, located behind the house, obstructed access to the tank, which also turned out to be incorrect because the tank was not where he thought it was. James King’s assertion that the Client is responsible for providing him correct information per the contractual agreement does not relieve him of the responsibility of verifying the information.

b. Cary Environmental Consultants did not find a water supply well on the property.

The Limited Site Assessment states that there are no water-supply wells used for drinking water located within 1000 feet of the release and that there are no water supply wells not used for drinking located within 250 feet of the release. Others later discovered that there is a water supply well on the property.

James King obviously did not conduct a thorough receptor survey, if he did one at all, or he would have found the well located 40 feet from the tank. King contends that his client is responsible for supplying him with accurate information pertaining to his investigation.

The fact that the information supplied by the client was incorrect confirms the need for the practitioner to verify facts first hand-hand. Misclassification of the risk assigned to the incident by the UST Section, based on King’s erroneous data, may have resulted in an unnecessary step in the process of characterizing the site- specifically, the required site investigation might have progressed to a Comprehensive Site Assessment (CSA) following the Limited Site Assessment (LSA), bypassing the Soil Assessment Report (SAR) stage.

c. The figures in the Limited Site Assessment (LSA) and Soil Assessment Report (SAR) incorrectly show the orientation of the tank in relation to the house.

The figures in both the Limited Site Assessment and Soil Assessment Report show the longitudinal axis of the tank as oriented north-south. It was later determined by others that the Underground Storage Tank’s longitudinal axis is oriented east-west.

The author [G. David Garrett] has received no contrary evidence to dispute Macklin Armstrong’s data regarding the tank size, location, or orientation. This erroneous reporting of the tank orientation indicates an inadequate investigation of the site, either by James King or others working under his responsible charge. In this incident, James King may not have adequately conducted his investigation or did not adequately supervise his subordinates.

d. Cross-Sections 4a and 4b in the SAR show soil contamination at different depths and other cross sections show the vertical extent of soil contamination based on limited analytical data.

A letter dated February 7, 2003 from Robert Davies, UST Section Regional Supervisor, to Fran Wagner identified several deficiencies in the Soil Assessment Report (SAR), and stated that the Soil Assessment Report (SAR) could not be approved until those deficiencies were addressed. A letter dated January 2, 2003 from Karen Harmon, Incident Manager, to Frances Wagner also mentioned deficiencies in the Soil Assessment Report (SAR) and stated that the Task Authorization Pre-Approval Request for additional work at the site (including soil removal) was denied because of those deficiencies.

Cross-sections 4a and 4b are not entirely consistent; i.e., the cross sections are oriented about 90 degrees apart and show contamination at different depths at approximately the same location. This is not a likely scenario. However, the cross sections also show inconsistencies with the standards of the profession, specifically, no soil descriptions or stratigraphy are provided, and contouring of the contamination on the drawings is based on too few data. This conclusion was reflected in the correspondence dated January 2, 2003, from Underground Storage Tank (UST) Section Hydrogeologist Karen Harmon to Mr. Jared King. The contouring shows the extent of “known contamination” “[words from James King’s report]”, which does not accurately associate borings with known contamination borings without contamination. James King (or his subordinate) did not correctly use the data, and there are insufficient data for determining the limits of contamination. James King, being in responsible charge, should have caught this error.

The Peer Review Investigation of the Petitioner found his actions constitute professional incompetence, based on numerous technical flaws that reflect a lack of understanding of the basic principles of hydrogeology and data presentation. Further, it was found that Petitioner’s attempts to shift the burden of responsibility for accurate data reporting to his client did not relieve him of his responsibility to verify the facts. This finding supports a conclusion that he is either untrained in the standards of practice, unprincipled, or both. The report found the Petitioner’s activities reflect gross unprofessional conduct. In addition to the report prepared by Mr. Garrett, Licensed Geologists Charles Gardner and Neil Gilbert reviewed and concurred with Mr. Garrett’s findings.

20. On December 13, 2004, the Respondent sent Petitioner a Notice of Proposed Suspension and Letter of Reprimand for License #1398 for violations of N.C.G.S. § 89E, N.C. Admin. Code tit. 21, r. 21.1101(b)(1), r. 21.1101(b)(2), and r. 21.1101(d).

21. On January 13, 2005, the Respondent sent Petitioner a Letter of Reprimand for License #1398 for violations of N.C.G.S. § 89E, N.C. Admin. Code tit. 21, r. 21.1101(b)(1), r. 21.1101(b)(2), and r. 21.1101(d). (Respondent’s Exhibit 24).

Based on the foregoing Findings of Fact, the undersigned Administrative Law Judge makes the following:

CONCLUSIONS OF LAW

1. All parties are properly before the Office of Administrative Hearings, and the Office of Administrative Hearings has jurisdiction over both the parties and over the subject matter at issue.

2. All parties have been correctly designated, and there is no question as to misjoinder or nonjoinder.

3. Petitioner and Respondent are “parties” within the meaning of N.C.G.S. §150B-40(e).

4. Pursuant to N.C.G.S. § 89E-16 (Code of Professional Conduct), the Respondent has to prepare in writing a Code of Professional Conduct, which shall be made known to each licensee and applicant for licensing. The publication of the Code of Professional Conduct shall constitute due notice to all licensees such as Petitioner.

5. Pursuant to N.C.G.S. § 89E-17 (Complaints), any person may file a written, sworn statement of charges or allegations against any licensee, which Macklin Armstrong did.

6. The Respondent, pursuant to N.C.G.S. § 89E-19 (Disciplinary Procedures), through N.C.G.S. § 150B, may suspend or revoke the license of a licensee who has violated the provisions of N.C.G.S. § 89E, or any rule or regulation of the Board. Further, if the Respondent finds a licensee is guilty of gross unprofessional conduct, dishonest practice, or incompetence or fraud, it can suspend or revoke the license.

7. Pursuant to N.C. Admin. Code tit. 21, r. 21.1101(b)(1) a licensed geologist is required to “conduct his practice in order to protect the public health, safety, and welfare. The geologist shall at times recognize his primary obligation to protect the safety, health, and welfare of the public in performance of his professional duties.”

8. Pursuant to N.C. Admin. Code tit. 21, r. 21.1101(b)(2) a licensed geologist is required to “protect the public, health, safety, and welfare by maintaining sufficient personal on-site involvement and continual direction and review of the activities of subordinates that constitute public practice of geology while such activities are in progress. The licensee must provide such supervision and have sufficient knowledge of the project and site conditions necessary to assure accuracy and compliance with all applicable laws and regulations.”

9. Pursuant to N.C. Admin. Code tit. 21, r. 21.1101(d) a licensed geologist is required to issue public statements only in an objective and truthful manner. The geologist shall be completely objective and truthful in all professional reports, statements, or testimony. He shall include all relevant and pertinent information in such reports, statements, or testimony.

10. The Respondent has proven, by a preponderance of the evidence, through exhibits and testimony, that the Petitioner has violated N.C.G.S. § 89E, N.C. Admin. Code tit. 21, r. 21.1101(b)(1), r. 21.1101(b)(2), and r. 21.1101(d).

11. A suspension of Petitioner’s license and a letter of reprimand are reasonable and appropriate under the circumstances based on violations of N.C.G.S. § 89E, N.C. Admin. Code tit. 21, r. 21.1101(b)(1), r. 21.1101(b)(2), and r. 21.1101(d).

Based on the foregoing Findings of Fact and Conclusions of Law, the undersigned makes the following:

PROPOSAL FOR DECISION

The North Carolina Board for the Licensing of Geologists should suspend the license of the Petitioner for a period of thirty days and place a Letter of Reprimand in his file.

ORDER

It is hereby ordered that the North Carolina Board for the Licensing of Geologists serve a copy of the final decision on the Office of Administrative Hearings, 6714 Mail Service Center, Raleigh, North Carolina 27699-6417 in accordance with N.C.G.S. § 150B-36(b).

NOTICE

The North Carolina Board for the Licensing of Geologists, the agency making the final decision in this contested case, is required to give each party an opportunity to file exceptions to this proposal for decision and to present written arguments to those in the agency who will make the final decision. N.C.G.S. § 150B-36(a).

The North Carolina Board for the Licensing of Geologists is required by N.C.G.S. § 150B-36(b) to serve a copy of the final decision on all parties and to the Office of Administrative Hearings.

This the 10th day of August, 2005.

_____________________________

Fred G. Morrison Jr.

Senior Administrative Law Judge

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