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STATE OF NORTH CAROLINA IN THE OFFICE OF
ADMINISTRATIVE HEARINGS
COUNTY OF MECKLENBURG 99 BOG 1254
O. Phillip Kimbrell, P.G., )
Petitioner, )
)
v. ) PROPOSAL FOR DECISION
)
N.C. Board for the Licensing of )
Geologists, )
Respondent. )
This matter was heard before Administrative Law Judge James L. Conner, II on February 6,
2000 in Charlotte, North Carolina regarding the appeal of disciplinary action proposed to be imposed
against Petitioner, O. Phillip Kimbrell (“Kimbrell”), by the Respondent, North Carolina Board for
the Licensing of Geologists (“Board”), an occupational licensing agency as defined at N.C. Gen. Stat.
§ 150B-2(4b). The hearing was conducted under Article 3A of Chapter 150B of the North Carolina
General Statutes, N.C. Gen. Stat. §§ 150B-38 through 150B-42, and by an Administrative Law Judge
who acted as the presiding officer as requested by the Board. Pursuant to N.C. Admin. Code tit. 21,
r. 21.0503, the Administrative Law Judge conducted the hearing in accordance with the Board’s
hearing rules, N. C. Admin. Code tit. 21, r. 21.0600 through .0605. The Administrative Law Judge
now proposes the following decision, which contains proposed findings of fact and proposed
conclusions of law as required by N.C. Gen. Stat. § 150B-40(e).
APPEARANCES
For Petitioner: For Respondent:
W. Clark Jordan Mary Penny Thompson
Attorney at Law Assistant Attorney General
Kilpatrick, Stockton, L.L.P. N. C. Department of Justice
3500 One First Union Center Environmental Division
301 South College Street Post Office Box 629
Charlotte, NC 28202 Raleigh, NC 27602-0629
ISSUES
1. Whether the Board properly accepted referrals from the North Carolina Department of
Environment and Natural Resources.
2. Whether the Board used the correct standards, i.e., endangering public health and
safety; gross, unprofessional conduct; incompetence; and failure to exercise responsible charge of
work or direct supervisory control, in proposing to impose discipline upon Petitioner.
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3. Whether Petitioner acted in a manner which warranted disciplinary action.
4. Whether the Board properly proposed imposing a three-month suspension of
Petitioner’s license.
STATUTORY SECTIONS IN QUESTION
N. C. Gen. Stat. §§ 89E-1 through 89E-24 (1998) (Geologists Licensing Act prior to 1999 revisions)
EXHIBITS RECEIVED INTO EVIDENCE
PETITIONER:
1. Newsletter, North Carolina Board of Licensing of Geologist, January 1999
2. Request for Investigation of a NC Licensed Geologist
3. Request for Investigation of a NC Licensed Geologist
4. Correspondence of June 1, 1999 from Neil J. Gilbert, P.E., PG. to Robert M. Upton
5. Correspondence of February 8, 1999 from Burrie D. Boshoff , Ph.D. to David Garrett, P.G.
6. Correspondence of January 20, 1999 from Burrie D. Boshoff, Ph.D. to David Garrett, P.G.
7. Correspondence of May 27, 1999 to Stephen G. Conrad, P.G.
8. Correspondence of May 28, 1999 from John Callahan, Ph.D. to Neil Gilbert
9. Correspondence of July 26, 1999 from Robert M. Upton to O. Phillip Kimbrell, P.G.
10. Proposed disciplinary action against Mr. Kimbrell
11. Correspondence of July 17, 1998 from Phil Kimbrell, P.G. to Steve Bograd
12. Correspondence of July 27, 1998 from Pete Overton to Steve Bograd
13. Correspondence from William L. Meyer to Pete Overton
14. Correspondence of March 16, 1999 from Steve Bograd, P.G. to Pete Overton
15. Correspondence of November 12, 1998 from Phil Kimbrell, P.G. to Steve Bograd
16. Comprehensive Site Assessment of December 15, 1997
17. Correspondence of March 9, 1999 from Phil Kimbrell, P.G. to Robert Krebs, P.G.
18. Resume of Ollie Phillip Kimbrell, P. G. #893
19. Correspondence of April 24, 1997 from Pete Overton to Phil Kimbrell
20. Correspondence of August 25, 2000 from J. William Miller, Jr., Ph.D., P.G. to W. Clark
Jordan
21 Correspondence of August 28, 2000 from J. William Miller, Jr., Ph.D., P.G. to W. Clark
Jordan
22. Correspondence of February 23, 1998 from Steven Bograd to Pete Overton
23. Correspondence of February 10, 1998 from Phil Kimbrell, P.G. to Steven Bograd
24. Correspondence of August 7, 1998 from Phil Kimbrell, P.G. to Steven Bograd
25. Correspondence of March 2, 1999 from Robert B. Krebs, P.G. to Pete Overton
26. Correspondence of March 23, 1999 from Teddy Chapman to Steve Bograd
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RESPONDENT:
1. January 20, 1999 Referral for Investigation with supporting attachments including Request
for Investigation of a NC Licensed Geologist signed and notarized by Steven Bograd;
2. February 8, 1999 Referral for Investigation with supporting attachments including Request
for Investigation of a NC Licensed Geologist signed and sworn by Allen J. Schiff;
3. March 20, 1999 Letter from O. P. Kimbrell to Neil J. Gilbert regarding Response to Charges
of Complaint Filed Per NCGS 89E-17 Geologists Licensing Act with supporting
attachments;
4. June 2, 1999 Addendum to Report of Investigation - O. Phillip Kimbrell, P.G. with
supporting documentation;
5. Graph drawn by Neil J. Gilbert entitled, “Diagonal Cross Section Trough MW-1 Country
Store, Fig. 23, Toluene;”
6. Table compiled and highlighted by Neil J. Gilbert entitle, “Country Store;”
7. Table compiled and highlighted by Neil J. Gilbert entitle, “Terrell Shell;”
8. August 7, 1986 Application Certification signed and sworn by Ollie Phillip Kimbrell;
Based upon careful consideration of the testimony, evidence, and legal briefs received during
the contested case hearing as well as the entire record of this proceeding, the undersigned makes the
following:
FINDINGS OF FACT
1. Petitioner is a licensed geologist holding North Carolina license number 893.
2. Respondent is an occupational licensing board established under the North Carolina
Geologists Licensing Act, N.C. Gen. Stat. §§ 89E-1 through 89E-24, to administer and enforce the
provisions of the North Carolina Geologists Licensing Act.
3. The Board consists of the State Geologist as an ex officio member and a permanent
member of the Board, an academic geologist, a mining geologist, a consulting geologist, a company
geologist and a lay person, pursuant to N.C. Gen. Stat. § 89E-4. As a whole, the Board represents
the wide range of professionals in the field of geology.
4. The North Carolina Geologists Licensing Act’s purposes, as stated in N.C. Gen. Stat.
§ 89E-2, are to protect life, property, health and public welfare through the regulation of the practice
of geology in the State of North Carolina; to define the practice of geology as a profession,
establishing minimum professional standards of ethical conduct, professional responsibility,
educational and experience background; and to prevent abuses of the practice of geology by
untrained or unprincipled individuals.
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5. “Responsible charge of work,” as defined by N.C. Gen. Stat. § 89E-3(10), means the
independent control and direction by the use of initiative, skill and independent judgment of
geological work or the supervision of such work.
6. The Board considers ‘responsible charge’ and ‘direct supervisory control’ to be
synonymous phrases and to be a part of protecting the public health, safety and welfare which is
referenced in the North Carolina Geologists Licensing Act and the 1986 and 1999 versions of its
Code of Professional Conduct.
7. The North Carolina Geologists Licensing Act required, pursuant to N.C. Gen. Stat. §
89E-16, the Board to prepare and adopt a code of professional conduct which was made known in
writing to every licensee and applicant for licensing under the North Carolina Geologists Licensing
Act and was published by the Board.
8. The code of professional conduct may be amended from time to time after due notice
and opportunity for hearing to all licensed members and the public for comment before adoption of
the revision or amendments.
9. On February 1, 1986, the Board adopted a "Code of Professional Conduct" for
geologists as authorized by N.C. Gen. Stat. § 89E-16 (the "1986 Code of Professional Conduct").
10. Paragraph (b) of the 1986 Code of Professional Conduct stated in its entirety:
The geologist shall conduct his practice in order to protect the public health, safety,
and welfare.
The geologist shall at all times recognize this primary obligation to protect the safety,
health, and welfare of the public in the performance of his professional duties. If his
geologic judgment is overruled under circumstances where the safety, health and/or
welfare of the public are endangered, he shall inform his employer of the possible
consequences and notify other proper authority of the situation, as may be
appropriate.
11. Paragraph (c) of the 1986 Code of Professional Conduct stated in its entirety:
The geologist shall perform his services only in areas of his competence:
(1) The geologist shall undertake to perform geologic assignments only
when qualified by education or experience in the specific technical field of
geology involved.
(2) The geologist may accept an assignment requiring education or experience
outside of his own field of competence, but only to the extent that his services are
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restricted to those phases of the project in which he is qualified. All other phases of
such project shall be performed by qualified associates, consultants, or employees.
(3) The geologist shall not affix his signature and/or seal to any document dealing
with subject matter to which he lacks competence; by virtue of education or
experience, nor to any such plan or document not prepared under his direct
supervisory control except that the geologist may affix his seal and signature to
drawings and documents depicting the work of two or more professionals provided
he designated by note under his seal the specific subject matter for which he is
responsible.
12. Petitioner was aware of the requirements of the North Carolina Geologists Licensing
Act, the Rules and Regulations of the North Carolina Board for Licensing of Geologists, and the
1986 Code of Professional Conduct adopted by the Board as he was required to read them prior to
applying for licensure which is evidenced by his certification on his application for licensure.
13. Prior to November 24, 1999, the Board did not publish a code of professional conduct
in the North Carolina Administrative Code.
14. The Board did adopt temporary rules pursuant to the rulemaking procedures outlined
in N.C. Gen. Stat. § 150B-21.1. The temporary rules became effective November 24, 1999 and
reflected legislative changes to the North Carolina Geologists Licensing Act, pursuant to 1999 N.C.
Sess. Law 355 (which revised the procedure used by the Board to address complaints and
investigations and authorized the assessment of civil penalties), and incorporated the 1986 Code of
Professional Conduct with revisions (“the 1999 Code of Professional Conduct”).
15. In the 1999 Code of Professional Conduct, paragraph (b) of the 1986 Code of
Professional Conduct was revised to read as follows:
(b) The geologist shall conduct his practice in order to protect the public health,
safety, and welfare.
(1) The geologist shall at all times recognize his primary obligation to protect the
safety, health, and welfare of the public in the performance of his professional
duties. If his geologic judgment is overruled under circumstances where the
safety, health and/or welfare of the public are endangered, he shall inform his
employer of the possible consequences and notify other proper authority of
the situation, as may be appropriate.
(2) The geologist shall 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
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necessary to assure accuracy and compliance with all applicable laws and
regulations (including, but not limited to, G.S. 89E and the rules of this
Chapter).
16. All actions of the Petitioner upon which the Board took action in its proposal for
discipline occurred prior to the 1999 legislative amendments and temporary rulemaking.
17. The Board may, pursuant to N.C. Gen. Stat. § 89E-19, suspend or revoke the license
of any licensed geologist who has (1) violated the provisions of the North Carolina Geologists
Licensing Act, (2) violated a rule or regulation of the Board, (3) been found by the Board to be guilty
of gross unprofessional conduct, (4) been found by the Board to be guilty of dishonest practice, or (5)
been found by the Board to be incompetent.
18. A May 1998 meeting occurred between the Board and representatives of the
Department of Environment and Natural Resources. This meeting and a description of the Board’s
"policy concerning supervision" are described in the January 1999 Board Newsletter as follows:
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 is expected to provide such supervision and have sufficient
personal knowledge of the project and site conditions necessary to assure
accuracy and compliance with all applicable laws and regulations including
NCGS 89E and the rules promulgated thereunder.
19. The "policy concerning supervision" described in the January 1999 Board Newsletter
was not published in any publication issued by the Board in writing to every licensed geologist prior
to January of 1999 nor was it made available for hearing and public comment before its adoption by
the Board as a temporary rule.
20. The remarks in the January 1999 Board Newsletter were prefaced with the statement
that, “The Geologist Board has had several occasions in the past and at present to make use of a
definition of the term ‘supervisory control’ or ‘direct supervision.’ The subject arises when
considering cases where an individual charged with oversight of a geology project leaves some doubt
as to actual direct supervision or supervisory control.”
21. Testimony by William C. Miller, who was the Board’s Chairman during the time the
Board proposed the contested disciplinary action, further established the fact that the Board had been
making use of the concept of ‘responsible charge’ or ‘direct supervisory control’ ever since he joined
the Board.
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22. As evidenced by Dr. Miller’s testimony, the Board did not use the particular
definition published in the January 1999 Board Newsletter in considering disciplinary action against
Petitioner. The Board tried to determine whether Petitioner was in ‘responsible charge’ and whether
he was performing work that could be considered safe work or work that would not expose the
public to undue harm.
23. The Board does not require all supervising geologists to make site visits under its
interpretation of ‘responsible charge’ or ‘direct supervisory control.’ Testimony from Dr. Miller
verified that the site visit requirement is dependent on the type of work being conducted. Working
with underground storage tanks and field work require site visits under the Board’s interpretation
because a geologist cannot understand a site well enough to do geological work on it without having
visited the site and looked at it at least once.
24. Mr. Gilbert’s testimony showed that, aside from the Board’s written statements on
‘direct supervisory control,’ the standard of the profession requires a geologist to select appropriate
sampling locations which usually requires a site visit.
25. The Board requires complaints about licensed geologists to be in writing and
notarized, pursuant to N.C. Gen. Stat. § 89E-17. Once a valid complaint is received by the Board, it
has the authority and duty to investigate the complaint.
26. The Board rules, N.C. Admin. Code tit. 21, r. 21.0501, state that, “Any person may
file with the Board a charge of negligence, incompetence, dishonest practice, or other misconduct or
of any violation of Chapter 89E of the North Carolina General Statutes or of these Rules.”
27. The Board created a complaint form which listed four categories, i.e., Gross
Unprofessional Conduct, Geologic Incompetence, Dishonest Practice, and Fraud or Deceit in
Obtaining a License. Subcategories were listed under each category. Dr. Miller substantiated the
fact that the categories were not intended by the Board to be all-encompassing, but rather the most
likely types of complaints that people would submit to the Board.
28. The North Carolina Department of Environment and Natural Resources, Mooresville
Regional Office (“MRO”) referred two complaints to the Board. Each package included a complaint
form signed and notarized by the MRO employee most familiar with the interaction between
Petitioner and the MRO. Each package also included a cover letter from the MRO employee’s
supervisor which further detailed the facts behind the complaint.
29. When a release occurs from an underground storage tank, a series of reports on the
status of the site must be submitted to the proper regulatory agency. In North Carolina, it is the
Department of Environment and Natural Resources’ Division of Waste Management. A twenty-day
report is submitted, then a limited site assessment, and then a comprehensive site assessment. A
comprehensive site assessment delineates the horizontal and vertical extent of groundwater and/or
soil contamination. Almost every comprehensive site assessment includes a contour map graphically
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representing the extent of the groundwater contamination. Depending on the site, a contour map of
the soil contamination may be included as well.
30. Petitioner conducted work at a project known as the Country Store Site. It is operated
as a convenience store and gasoline station. Two underground storage tanks were closed in place in
September 1996. Three other underground storage tanks and one small underground storage tank
remained in service. The smallest tank was variously used to store kerosene and racing fuel.
Initially, no soil contamination was indicated in the tank closure report. Upon request for additional
sampling by regulators, petroleum contamination was found. Free product, i.e., pure petroleum
floating on the water table, was identified in December 1998.
31. At the Country Store Site, Petitioner repeatedly missed regulatory deadlines. On
December 2, 1996, the MRO issued a Notice of Regulatory Requirements to the owners of the
Country Store Site requiring completion of a Comprehensive Site Assessment (“CSA”) within 45
days. Four months later, Petitioner submitted a preliminary report, but not the CSA. Four and one-
half months later, an Overdue Notice was sent to the owner. Petitioner requested a three month
extension which was granted. Petitioner submitted the CSA three days after the extended deadline.
However, MRO identified deficiencies in the CSA and set an end-of-May 1998 deadline for the
revised CSA. An Overdue Notice was sent in June of 1998. A revised CSA was not submitted until
November 1998. MRO still identified deficiencies and required another revised CSA. The owner
received a civil penalty for not submitting a completed CSA.
32. Also at the Country Store Site, Petitioner incorrectly constructed groundwater
concentration contour maps as evidenced in Figures 23 and 24 of the CSA and testimony by Mr. Neil
Gilbert, the Board’s investigator and Stephen Bograd, complainant. One contour line on each figure
should have been placed on the opposite side of the well, the figures contained labeling problems,
and the presence of an isolated low without a contoured transition violated the rules of contouring.
An anomalously low concentration indicates questionable data and requires an explanation or
retesting of the site to determine the reason for the presence of the anomalous low or to eliminate
faulty data.
33. Also at the Country Store Site, Petitioner incorrectly prepared a soil concentration
map which was inconsistent with laboratory and field data as evidenced by Figure 21 of the CSA and
testimony by Mr. Gilbert and Mr. Bograd. The published requirements for a CSA in effect at the
time indicated a preference for laboratory data over field data and required laboratory data for the
Executive Summary of the CSA. The standard in the geology profession is to use field data to screen
samples, but to ultimately use laboratory data in the analysis because it is more accurate and
reproducible. Although it is difficult to tell whether the soil concentration map is drawn upon
laboratory or field data, the contour lines on the map are inconsistent with either set of data.
34. Petitioner’s own testimony admitted that there were errors in judgment and that there
were mistakes, primarily regarding the location of wells and contour gradients. He characterized it
as the low point of his career.
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35. The MRO identified necessary corrections in the figures and asked that they be
redrawn with laboratory data instead of field data. Petitioner did not redraw the figures.
36. The contouring skills necessary to draw these figures correctly were basic and part of
the normal curriculum taught to every first-year geology student.
37. Also at the Country Store Site, Petitioner failed to comply with an MRO directive
with regard to well sampling and failed to keep commitments to specific sampling dates. The
directive required the site to be sampled quarterly. Petitioner specifically committed in a letter to
MRO that the results of water supply sampling would be ready by the second week of July. In fact,
the well was not sampled until the second week of July and the results were not reported until
August 7, 1998.
38. Petitioner conducted work at a project known as the First Stop/Last Stop Site. It is
operated as a convenience store and gasoline station. One underground storage tank was removed in
December 1995 and soil contamination was discovered. A 1996 preliminary groundwater study
indicated groundwater contamination. Two other underground storage tanks were removed in 1997.
39. At the First Stop/Last Stop Site, Petitioner repeatedly missed regulatory deadlines.
Petitioner submitted a CSA after receiving three extensions on the deadline to submit it.
Deficiencies in the CSA were identified and a one and one-half month deadline was set for a
response. An Overdue Notice was sent after the deadline passed without response. Another
Overdue Notice was sent five months later. A CSA Addendum was finally submitted three months
later, over eight months from the initial deadline for a response.
40. Additionally, a Corrective Action Plan for the First Stop/Last Stop Site was required
to be submitted by mid-September 1998. An Overdue Notice was sent in mid-January 1999, four
months after the deadline. Neither the owner of the site, nor Petitioner has responded to the last
Overdue Notice and the owner appears unwilling to proceed with corrective action. Mr. Gilbert, the
Board’s investigator, testified that it did not appear Petitioner could be held accountable for these
delays. Dr. Miller confirmed that it was not a basis for the Board’s proposed disciplinary action.
41. Also at the First Stop/Last Stop Site, Petitioner placed monitoring wells in a
questionable, non-traditional configuration. Petitioner placed monitoring wells in a straight line.
Petitioner claimed that his experience enabled him to recognize a groundwater divide, an area where
the groundwater runs in opposite directions. A straight line of wells will not prove or disprove a
groundwater divide theory, or other theory of contamination extent, because the contamination could
exist in any plane rotated along the axis of the straight line. Because the wells were placed in a
straight line by Petitioner, it was difficult to convince others of the presence of the groundwater
divide. A more traditional configuration would have resulted in more reliable and acceptable data.
Ultimately, other wells had to be added to verify the presence of a groundwater divide. However,
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since it turned out that Petitioner was correct about the ground water divide, this cannot be found to
constitute incompetence.
42. Also at the First Stop/Last Stop Site, Petitioner did not meet the deadlines for well
sampling on time. The wells were to be sampled semi-annually, but it appears Petitioners samples
were taken late and reported late. However, the samples were close enough to the deadlines that Mr.
Gilbert found them to be sufficient and not substantiating the charge that the delays in well sampling
endangered the public health, welfare and safety.
43. Petitioner testified that the responsible party at the First Stop/Last Stop Site, Mike
Dellinger, directed him not to continue any work so that he could use the outstanding necessary work
as leverage to bring in other responsible parties for the contamination clean-up.
44. Petitioner conducted work on a project known as the Terrell Shell Site. The Terrell
Shell Site contained several underground storage tanks which were closed in 1995. Both soil and
groundwater contamination were identified at the site. Free product was identified in one of the
monitoring wells. A recovery well was installed and free product gathered from both the recovery
well and the indicated monitoring well.
45. At the Terrell Shell Site, Petitioner repeatedly missed regulatory deadlines. After
missing a deadline, but being granted an extension after-the fact, Petitioner submitted a CSA.
However, the CSA contained deficiencies and petitioner was required to revise the CSA by the end
of April 1997. An Overdue notice was sent three months after the deadline, followed one month
later by a warning of imminent enforcement action. Petitioner may have sent a revised CSA on May
15, 1998, but it was still late. The Corrective Action Plan was due on February 10, 1998, but an
extension was granted until mid-April 1998. Petitioner requested further extensions, but was denied.
Specifically, the MRO did not consider cash flow problems as a legitimate basis for an extension.
Ten months after the original deadline for the Corrective Action Plan, the owner was assessed a civil
penalty for failure to submit the Corrective Action Plan.
46. Also at the Terrell Shell Site, Petitioner failed to perform required sampling of
threatened water supply wells. An Overdue Notice noted that well samples should have been
received in May 1998. A September 28, 1998 Notice of Violation reiterated a requirement that the
wells be sampled quarterly instead of semi-annually. Petitioner submitted semi-annual sample
reports for January and July 1998. The water supply samples of January and July 1998 showed that
one of the two wells contained a petroleum-related impact, i.e., one well was contaminated.
47. In addition, Petitioner was aware that a free-product recovery system (which removes
petroleum from the water supply) was out of service three months after it was installed and was not
repaired or replaced by Petitioner because of cash flow problems. Despite Petitioner’s knowledge of
the problem, he did not notify MRO and MRO discovered the failure through its own sources.
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48. Both the Country Store Site and the Terrell Shell Site were owned by Acme, Inc.
Petitioner entered into a contract with Acme to perform work and receive reimbursement directly
from a State trust fund. When the legislature eliminated the State trust fund, payments were delayed
and Petitioner fell deeply into debt. However, Petitioner continued to work for Acme and did not
terminate the contract or sue upon its terms. On occasion, he would receive partial payments from
Acme. He also used notices of violation and enforcement as leverage against Acme to receive more
money for the ongoing work.
49. The Board responded to a letter by Petitioner’s attorney regarding the monetary issue
by stating that late payments by petitioner’s client involved a contractual issue outside the purview of
the Board, as evidenced by Petitioner’s Exhibits 20 and 21.
50. Petitioner conducted work on a project known as the Sharon Towers Site. The
Sharon Towers Site contained four underground storage tanks which were removed between
November 1997 and July 1998. All of the underground storage tanks contained fuel oil and three
had leaked, base on soil samples collected during closure. A temporary monitoring well did not
indicate petroleum contamination.
51. On the Sharon Towers Site project, Petitioner reviewed, signed, and sealed reports
prepared by others without having visited the site. On or about January 5, 1999, Petitioner signed
and sealed a Limited Site Assessment Report - Phase I ("LSA") for Sharon Towers that was prepared
by employees of Terraine, Inc. Petitioner claimed to be familiar with Terraine and that he worked
closely with the Terraine staff on site. The LSA was submitted to the MRO on January 7, 1999, and
received on January 8, 1999. Petitioner specifically admits he did not personally visit the Sharon
Towers site.
52. On or about January 11, 1999, Mr. Allen Schiff reviewed the Sharon Towers LSA.
Mr. Schiff sought clarification of the description of “direct supervision” from the Board. On behalf
of the Board, Mr. Bob Upton prepared a memorandum to Mr. Schiff that outlined the description
based on August 1998 minutes of a Board meeting which was identical to the description in the
January 1999 Board Newsletter.
53. In discussing the extent of contamination on a site, Respondent’s Exhibit 3 contains a
statement by Petitioner which says, “As far as ‘extent of contamination’ is concerned, this issue is
highly subjective and no scientific principal or concrete regulations have been presented by the
DWM that spells out exactly what ‘extent of contamination’ means. Therefore, I believe that this
conclusion is based on the opinion of the Professional Geologist and cannot be made by someone
that has never seen the site and/or does not have first hand experience with the data collected from
the site.”
54. In general, employees of MRO will bring items to the attention of their supervisors
when they feel the items should be referred to the Board as a complaint against a licensed geologist’s
work. If the supervisor agrees, the employee drafts a package which is then sent to the Section
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Chief. Once the Section Chief reviews the package and makes any necessary changes, it is sent to
the Board as a referral from the Department of Environment and Natural Resources, Division of
Waste Management.
55. The first package referred to the Board was dated January 20, 1999 and contained a
cover letter from the Section Chief, a Request for Investigation of a NC Licensed Geologist signed
by Steve Bograd and notarized, an April 24, 1997 letter from Acme Petroleum and Fuel Company
(“Acme”) directing Petitioner to proceed with the requirements of a Notice of Violation, a drawing
labeled Figure 21, a drawing labeled Figure 4, a drawing labeled Figure 23, a drawing labeled Figure
24, a compilation of measurements labeled Table 1, a compilation of measurements labeled Table 3,
a drawing labled Figure 8, and an excerpt from the comprehensive site assessment for the First
Stop/Last Stop Site. Mr. Bograd testified that he referred a complaint to the Board on the Country
Store Site, the First Stop/Last Stop Site and the Terrell Shell Site because they were all high risk sites
upon which delays could cause serious risk to human health. Mr. Bograd also stated that he defined
geologic negligence, as he wrote on the complaint form, to mean endangering human health by not
following schedules and causing delays.
56. The second package referred to the Board was dated February 8, 1999 and contained a
cover letter from the Section Chief, a Request for Investigation of a NC Licensed Geologist signed
by Allen Schiff and notarized, a memo from the Board dated January 11, 1999, a letter from
Terraine, Inc. submitting the limited site assessment, and the limited site assessment for the Sharon
Towers Site.
57. The Peer Review Investigation Report indicated that the missed regulatory deadlines
at both the Country Store and the Terrell Shell Sites constituted negligence. The Report also stated
that withholding the information from the State until his client paid him flew in the face of the
geologist’s primary obligation to protect the safety, health, and welfare of the public in the
performance of his professional duties under the Code of Professional Conduct. The Report also
notes that there was evidence that groundwater contamination was affecting the water supply wells
which Petitioner failed to timely sample.
58. The Peer Review Investigation Report indicated that using field data instead of
laboratory data, incorrectly contouring contaminant concentration maps, and incorrectly placing
monitoring wells for delineation of groundwater flow could constitute incompetence. However, the
Report indicates that placement of additional wells seems to have supported the migrating-divide
premise at the First Stop/Last Stop Site and, so, indicates that charge of incompetence was not a
valid charge. However, Dr. Miller testified that he still had concerns over the placement since the
divide could not be substantiated without the additional wells.
59. Two other members of the Board’s Peer Review Committee, Stephen G. Conrad, P.G.
and John Callahan, Ph.D., read the Peer Review Investigation Report and concurred with its findings.
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60. Dr. Miller read the Peer Review Investigation Report and summarized its content for
the Board at its July 9, 1999 meeting. Proposals for disciplinary action ranged from three to four to
six months suspension.
61. The Peer Review Investigation Report indicated that the failure to visit the Sharon
Towers Site is a violation of Board policy.
62. On July 26, 1999, the Board issued a Notice of Proposed Disciplinary Action to Mr.
Kimbrell that proposed to suspend Mr. Kimbrell's license for three months based in part on the MRO
complaint related to the Country Store Site, the First Stop/Last Stop Site and the Terrell Shell Site;
and based on the MRO complaint (or Schiff Allegation) related to the Sharon Towers Site which, in
pertinent part, stated:
That [Mr. Kimbrell] reviewed, signed, and sealed reports prepared by others
without having visited the sites, demonstrating [Mr. Kimbrell’s] failure to
exercise responsible charge of work as defined by G.S. 89E-3(10) and direct
supervisory control as required by the Code of Professional Conduct.
CONCLUSIONS OF LAW
1. All parties are properly before the Administrative Law Judge acting as presiding
officer for the Board for Licensing of Geologists (“Board”), an “occupational licensing agency” as
defined at N.C.G.S. § 150B-2(4b). .
2. The Board is subject to Article 3A of Chapter 150B of the North Carolina General
Statutes, otherwise known as the “Administrative Procedures Act” or “APA,” N.C. Gen. Stat. §§
150B-38 through 150B-42.
3. All parties have been correctly designated, and there is no question as to misjoinder or
nonjoinder of parties.
4. The law in effect and applicable at the time of Petitioner’s action included the North
Carolina Geologists Licensing Act prior to its amendment in 1999, the administrative rules of the
Board prior to the 1999 amendments which were initiated by temporary rule, and the 1986 Code of
Professional Conduct adopted by the Board.
5. The Board properly accepted referrals from the North Carolina Department of
Environment and Natural Resources since they conformed to the requirements of N.C. Gen. Stat. §
89E-17 by being in writing and notarized.
6. The standard of endangering public health and safety constitutes a correct standard
since it reflects the purpose of the North Carolina Geologists Licensing Act pursuant to N.C. Gen.
Stat. § 89E-2; and is repeated in the 1986 Code of Professional Conduct which was adopted by the
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Board pursuant to N.C. Gen. Stat. § 89E-16. As such, a violation of this standard constitutes a
violation of the North Carolina Geologists Licensing Act and constitutes an act of unprofessional
conduct pursuant to N.C. Gen. Stat. § 89E-19.
7. The standard of gross unprofessional conduct constitutes a correct standard for
disciplinary action since it is specifically listed in the statutory section regarding disciplinary
procedures, N.C. Gen. Stat. § 89E-19. Violations of the 1986 Code of Professional Conduct
constitute acts of unprofessional conduct. Gross unprofessional conduct varies from unprofessional
conduct by degree.
8. The standard of incompetence constitutes a correct standard for disciplinary action
since it is specifically listed in the statutory section regarding disciplinary procedures, N.C. Gen.
Stat. § 89E-19.
9. The standard of ‘failure to exercise responsible charge of work’ or ‘direct supervisory
control’ is a correct standard for disciplinary action since the first term is defined by the North
Carolina Geologists Licensing Act under N.C. Gen. Stat. § 89E-3(10) and the second, synonymous
term is used in the 1986 Code of Professional Conduct. As such, a violation of this standard
constitutes a violation of the North Carolina Geologists Licensing Act and constitutes an act of
unprofessional conduct pursuant to N.C. Gen. Stat. § 89E-19.
10. The Board is aware of the regular standards in the geology profession since it is made
up of a representative group of professionals from the geology field.
11. The Petitioner acted in a manner which warranted disciplinary action.
(a) Petitioner’s actions of repeatedly missing regulatory deadlines and delaying the
transmittal of information to a regulatory agency, especially in connection with
potentially-contaminated water supply wells, endangered public health and safety,
constituted gross unprofessional conduct, and constituted incompetence.
(b) Petitioner’s actions of reviewing, signing, and sealing reports prepared by others
without having visited the site constituted a failure to exercise responsible charge
of work and direct supervisory control.
(c) Petitioner’s actions of preparing groundwater concentration maps by incorrectly
constructing contour maps demonstrated incompetence.
(d) Petitioner’s actions of incorrectly preparing a soil concentration map which was
inconsistent with laboratory and field data upon which the map was allegedly
based demonstrated incompetence.
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(e) Petitioner’s actions of failing to comply with a regulatory agency directive with
regard to well sampling and failing to keep commitments to specific sampling
dates constituted gross unprofessional conduct and incompetence.
12. The Board properly proposed imposing a three-month suspension of Petitioner’s
license since the Board was authorized to suspend or revoke the license pursuant to N.C. Gen. Stat. §
89E-19.
Based on the foregoing Findings of Fact and Conclusions of Law, the undersigned makes the
following:
RECOMMENDED DECISION
The Board for Licensing of Geologists should uphold the decision to impose a three-month
suspension of Petitioner’s license.
ORDER
It is hereby ordered that the Board for Licensing of Geologists serve a copy of its final agency
decision on the Office of Administrative Hearings, 6714 Mail Service Center, Raleigh, NC 27699-
6417, in accordance with N.C. Gen. Stat. § 150B-36(b).
NOTICE
The Board for 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 Recommended Decision
and to present written arguments to those in the agency who will make the final decision. N.C. Gen.
Stat. § 150B-36(a).
The Board for Licensing of Geologists is required by N.C. Gen. Stat. § 150B-36(b) to serve a
copy of the final decision on all parties and to furnish a copy to the parties’ attorneys of record and to
the Office of Administrative Hearings.
This the 22nd day of May, 2001.
____________________________________
James L. Conner, II
Administrative Law Judge
