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
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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.