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PRACTICING GEOLOGY IN HAZARDOUS LANDS: COASTAL CALIFORNIA (Part Two–Administrative Court Hearing of Case CG 2010-13)

July 22, 2015

Of three initial complaints investigated by BPELSG, only one survived through the Informal Conference stage of the process [CG 2010-13] by the end of 2013. The Accused appealed this complaint in a formal hearing before an Administrative Law Judge, the last stage available for redress. The hearing took place June 3-4 and November 19-21, 2014. The contested work was the Accused’s review of reports prepared by licensed geologists for construction of a wine Tasting Room, evaluation of the water supply for the project, and the alleged absence of a geotechnical report on the project site.

Below I review aspects of this process in detail, because it reveals additional significant issues in current BPELSG implementation of the Geologist and Geophysicist Act, and the full scope of the process that a licensed geologist may face if required to defend his or her practice.

The formal CG 2010-13 Citation listed six violations of the Geologist and Geophysicist Act and Title 16 of the California Code of Regulations, relating to the Accused’s qualifications and representations. The Accused’s responses to these charges are in the Table Allegations and Responses, under Case CG 2010-13 in www.theamericanwestatrisk.com/Practicing-Geology-in-Hazardous-Lands.html

Hearing Before Administrative Law Judge Kirk Miller1

Charge-1 “[The Accused] conducted a review of the Fort Ross Vineyard Tasting Room…and prepared a report… submitted to Sonoma County Permit and Resource Management Department (County) on October 29, 2010. On October 29 [the Accused] reviewed the relevant County files and acknowledged there was a geotechnical report in the County files that he had not reviewed regarding the subject site. [The Accused] violated the G&G Act (B&P Code section 7850(b)(2)) and Title 16, CCR 3065(c)(5) when he failed to withdraw and/or modify his… report. Portions of the report, as submitted, were a misrepresentation of the contents of the materials filed for the project and had no basis in fact (i.e., existence and relevance of the RGH geotechnical report and its contents).”

This charge is based on statements in the Accused’s report, stating that no geotechnical report on slope stability had been prepared for the project, leaving that important issue unassessed.

The absence of a geotechnical report in the project file during the public review period is amply demonstrated in the Accused’s response to the charge, corroborated by credible witnesses. In addition, no such document is listed in the Revised Mitigated Negative Declaration, dated September 10, 2010, which had been prepared for the project.2 The charge neglects to mention that the Accused submitted his report to the public record at the very end of the public review period. Following submittal of the report, he reviewed the file and found there a report by consultant RGH, with a title that contained the word “geotechnical.“3

Upon his discovery of the so-titled geotechnical report, the Accused immediately notified his client, and was instructed to write a letter about the finding for the client, but to do no additional work as the public review period was over and the client could not pay for additional work.

In his testimony, a Mr. Johnson, identified as the BPELSG’s Expert Consultant, asserted that whether the Accused had submitted his report before or after discovering the RGH report was “absolutely” irrelevant. Mr. Johnson said that the Accused had the duty to provide a factual report that would allow county reviewers to decide what weight to give his report. If his client does not authorize additional work, Mr. Johnson stated, the Accused “…has no other choice…than to withdraw the report.

In fact, however, once a report is date-stamped and submitted to the public record it cannot be withdrawn or modified. Under cross examination, Mr. Johnson revealed that he did not know the regulations regarding withdrawal of a dated report in a public file.

It thus appears that neither the BPELSG’s Expert Consultant Johnson nor the BPELSG’s Enforcement Section that prepared the Citation, had knowledge critical to the correct execution of their duties.

Charge-2 “[The accused] violated the G&G Act (B&P Code § 7860(b)(2)) and Title 16, CCR § 3065(c)(5) when he prepared a regional landslide setting map that shows large scale landslides that he drew across the subject property while the actual California Division of Mines and Geology Special Report 120 [CDMG SR-120] map does not show any potential landslides in the area.

This charge was an extra allegation, not present in Mr. Johnson’s Expert Consultant’s report to BPELSG leading to Citation, dated August 12, 20114. It is identical to an allegation in the written response from a different Expert Consultant, Mr. Chuck Kull, in response to a request from BPELSG, dated December 19, 2011. This additional report was admitted as hearsay evidence by the Court.

The charge is incorrect on a number of points, as enumerated below:

  • Kull’s statement that the SR-120 map does not show any potential landslides in the area is incorrect. This question was covered intensively at the October 4, 2012, Informal Conference, over which Mr. Kull presided. At that time, Mr. Kull agreed that SR-120 does indeed show many potential landslides in the area.
  • The charge was also in error for stating that the Accused’s report shows large-scale landslides that he drew across the property. The Accused’s report clearly stated that his map showed areas where inspection of several sets of air photos, more recent than SR-120, revealed features indicative of landsliding that needed further investigation. Both the Accused’s map and his words indicated that the mapped areas have landslide potential and would require further investigation, as is common geologic practice (see discussion in SR-120).

Charge-3. The Accused was in violation of the provisions cited in Charge-2 “when he claimed that he had performed a site reconnaissance even though he was never on the site.

This charge also is semantic, but it carried the implication that the Accused had never visited the project area. In his testimony, Mr. Johnson expressed his opinion that a “…’site reconnaissance ‘ has a particular meaning in the field of geology: That you actually physically set foot on the property” and walked it in order to make a report. The authoritative American Geological Institute Glossary of Geology, introduced by the Accused’s defense, does not agree that a reconnaissance even requires a site visit, however, depending on the information sought.

The Accused’s witnesses disputed the implication that he had not visited the site. Both witnesses had independently visited the site and confirmed that the Accused could not have made the observations in his report without having visited the site. At the time of the Accused’s visit to the site it had been fenced and posted No Trespassing, so the Accused had confined his observations to what he could see from accessible areas beyond the property boundary, including the immediately adjacent roadside. The project building site was fully visible from the road.

Charge 4. The Accused was in violation of the provisions cited in Charge-2 “when he claimed there is no apparent rock outcrop in the vicinity of the proposed building; however, there are reports that document outcropping at the site.

This is another semantic charge. The Accused stated explicitly in his report that the project construction area was visible from the road and he saw no rock outcrops in that specific area. The BPELSG did not reference the supposed reports of rock outcroppings, and the words “vicinity” and “site” are not sufficiently restrictive to contradict the Accused’s statement. No geologist, other than Expert Consultant Johnson, who had not visited the site, disputed the presence of rock outcrops on the large property that includes the project site. In fact, one of the expert reports commissioned by the property owner states that there are no rock outcrops on the building site, which had been leveled off many years before.

Charge 5. The Accused was in violation of the provisions cited in Charge-2 “when he stated in his October 27, 2010 report that ‘it appears significant grading would be required for the project; however he states that he did not review the grading plan.’

This charge is another semantic exercise, dependent on the definition of “significant” earth grading. What, if anything, relevant to the question was contained in a grading plan was not revealed in the accusation or Citation. In fact no document representing a grading plan was even submitted to the Court. Lacking any supporting evidence for the Court, the charge was dropped by the complainant at the hearing.

Charge 6. “In an unrelated report entitled ‘Geologic Review of The Geoservices Group Geologic Report in support of the Delectus Wine Complex…’ [the Accused] stated…’My review report does not address the issue of water availability because that is not my area of expertise.’ On page 2 he further noted ‘A review of the water availability issues affecting the proposed project is not within the scope of my services…’ [The Accused] violated Title 16, CCR §§ 3065(b)(1) (c)(1) when he approximately 6 months later, with apparently no change in professional qualifications, reviewed and critically evaluated water availability reports…for the subject Fort Ross Vineyard Tasting Room.

This charge is based on the meaning of the term “water availability,” which the BPELSG and its Expert Consultant Johnson construed to be an area of investigation solely reserved to licensees certified as hydrogeologists. The term “water availability” is not formally defined in geology, so much of the dispute results from differing opinions rather than regulatory requirements.

The questions addressed in the hearing relate to the Accused’s qualifications to critique “water availability” findings in two consultants’ reports supporting the project.5 In testifying for the Board, Mr. Johnson stated: “What [water availability] means to me is that [if] you’re going to adequately opine on water availability, you have to have a specialty or special knowledge that goes beyond just basic geology, [and that]…actually, water availability is more a civil engineering and a hydrology, rather than a basic geology question.

The Boudreau report contained the only geologic characterization of the site, and a second report, by EBA engineering, bolstered the Boudreau report without performing any additional geologic investigations. The Accused had criticized Boudreau’s characterization of site geology, based on multiple unsubstantiated assumptions, including the hypothesized presence of a sandstone aquifer in a restricted area at the well site, aquifer dimensions based on a suspect driller’s log, inconsistency with adjacent road-cut exposures near the well site that do not expose sandstone bodies, and a speculative cross section that does not conform to standards.

The Accused’s report did not specifically criticize Boudreau’s water supply estimate, but addressed the geologic data, stating: “The evaluation of water availability appears to consist of an initial investigation by E.H. Boudreau and analysis of the Boudreau ‘data’ by EBA Engineering. The data appear incomplete and contradictory and the interpretations and conclusions derived from those data, therefore, appear questionable.

The defense lawyer asked Expert Consultant Johnson: “Doesn’t it appear to you … that [the Accused] is limiting himself to looking at the geologic data?” His answer included the following statements: “… I think on the surface I would agree with that. But the problem … is that going from a collection of various types of data to coming to an answer requires an expert to make decisions on every aspect of the data that goes into the input to the final calculation [of water availability].” Johnson further identified Boudreau, the proponent’s consultant, as an “expert,” who had observed the area and collected data from a well drilling log and a pump test, and proposed a geologic model for the site. He used that information, and general ranges of hydrologic values to “roughly” estimate the water supply for the proposed project.

Johnson concluded, “In fact, [the Accused] may have been discussing geologic principles, but he can’t pull that whole thing apart and render it useless without being an expert in that particular topic [meaning hydrology].” Thus, Mr. Johnson seems to represent the BPELSG as holding that data are inseparable from interpretation, and that data on which a conclusion is based can only be evaluated by the “expert” reaching the conclusion. Were this an acceptable scientific doctrine, there would be no such thing as peer review.

Contrary to Johnson’s testimony, the BPELSG requires candidates for certification as hydrogeologists to first be licensed as Professional Geologists (PG), which attests to the fundamental role of geology for defining hydrologic characteristics. In addition, courses recommended for those preparing to take the PG licensing examinations include basic hydrologic topics.

Thus the Accused’s critique of Boudreau’s geologic interpretations followed generally accepted scientific practice, and did not require that the Accused have any knowledge, experience, or licensure exceeding that implied by the licensure and experience that he does have.

Proposed Decision

The Administrative Court Judge found for the Accused on all charges in the Citation, as follows:

Issue 1. Cause to issue a Citation due to respondent’s failure to withdraw or modify the October 27, 2010 report was not established

Issue 2. Cause to issue the Citation for filing a misleading map was not established

Issue 3. Cause to issue a Citation based on respondent’s use of the term “site reconnaissance” was not established

Issue 4. Cause to issue a Citation for respondent’s description of outcroppings was not established

Issue 5. Complainant acknowledged at the conclusion of the hearing that this portion of the Citation was not proven

Issue 6. Cause to issue the Citation for misrepresentation of professional qualifications was not established

Summary Decision

Citation Order CG 2010-13 against respondent [the Accused] is dismissed.

Signed by Administrative Law Judge Kirk E. Miller, December 30, 2014

What Happens Next

It is important to note that this is a Proposed Decision to the agency, the Board for Professional Engineers, Land Surveyors, and Geologists, which is the complainant in the case. The Board then has the following options under the Administrative Procedures Act, Government Code, §§ 11500-11529, available at http://www.leginfo.ca.gov/cgi-bin/displaycode?section=gov&group=11001-12000&file=11500-11529 ; they are in summary:

1) adopt the proposed decision;

2) adopt part of the proposed decision and discard other parts;

3) reject the proposed decision and either refer it to another administrative law judge for more inquiry; or

4) reject it and decide the case “upon the record,” probably requiring the Accused party to pay to provide a transcript of the proceedings.

These rules are astonishingly one-sided. Even if the agency has to back down on the charges, it can keep the Accused in a state of extended double jeopardy for many months (for starters, the agency has 100 days to decide on its option). Under item 3) the agency has the option to start the whole procedure again under the jurisdiction of the same or a different Administrative Law Judge, and item 4 allows the agency to discard the proposed decision and re-decide the case on the basis of the record. A requirement under item 4 allows the “parties opportunity to present oral or written argument before the agency” all over again — essentially an opportunity to repeat everything he or she has said in response to the initial complaint, to the citation, in the Informal Conference, and at trial.

An accused person might not expect this repetition to have any effect on the agency, if the testimony had had none up to that point. If the agency were to miraculously find in favor of an accused licensee, it has another 100 days before having to notify the licensee of that fact.

Agency Decision

In the case of CG 2010-13, the miracle did occur. The Accused received the following message:

The attached Corrected Proposed Decision of the Administrative Law Judge is hereby adopted by the Board for Professional Engineers, Land Surveyors, and Geologists in the above entitled matter [Case No. CG 2010-13].

This Decision shall become effective on May 15, 2015

IT IS SO ORDERED April 16, 2015

The corrections to the Proposed Decision are reportedly of code citations, without substantive change in the Judge’s Proposed Decision, which dismissed all the charges.

 

It Ain’t Over ‘till It’s Over
– attributed to Yogi Berra

Along with the Decision announcement, the Accused received a copy of Section 11521 of the Administrative Procedures Act. Part (a) of this section allows the Board to reconsider all or a part of its decision, and for any party to petition for reconsideration, within 30 days of the date the decision was mailed or delivered to the respondent, or at the end of a stay of not to exceed 30 days, which the agency may grant for the purpose of filing an application for reconsideration. If additional time is needed to evaluate a petition for reconsideration, another 10 days may be granted by the agency.

Part (b) of Section 11521 states that “The case may be reconsidered by the agency itself on all the pertinent parts of the record and such additional evidence and argument as may be permitted, or may be assigned to an administrative law judge. A reconsideration assigned to an administrative law judge shall be subject to the procedure in Section 11517.” Section 11517, as described above, allows 100 days from the date of receipt of the Proposed Decision for the Board to consider the Proposed Decision.

In virtually identical language, and under the same rules stated in Section 11517, Part (b) of Section 22521 permits the BPELSG to go through the very same procedure for reconsidering the document that was allowed for considering the document in the first place. In the event that a reconsideration is heard by an Administrative Law Judge, Section 11517(b)(3) apparently permits another 100 days for the agency to review the reconsidered decision.

This raises the question of how much time might pass after a Judge provides his or her Proposed Decision based on the initial hearing, before a case may really be settled?

  • 100 days from the date of receipt of the decision is allowed for BPELSG to review a Proposed Decision.
  • For case 2010-13, that date of receipt was January 8, 2015, and the effective deadline for the BPELSG’s decision was May 15, 2015, a total of 126 days. The additional time was given so that purely referential changes to the Judge’s decision could be entered into the record.
  • The Accused’s waiting time can be extended by a possible 70 days under Section 11521(a) and a possible 100 days under Section 11521(b)
  • There could be, as well, an unknown length of time for a second adjudication of the case, for a total of close to 300 or more days.

Conclusion

The process described for the case of a California-licensed geoscientist, who had been accused of multiple infractions of the State Code illustrates multiple failures of the Board for Professional Engineers, Land Surveyors, and Geologists, the Board’s Enforcement Unit, and its Expert Consultants. An administrative law judge’s judgment of one complaint and the Board’s actions on three additional complaints with two citations all went against the BPELSG, underscoring the early pattern of failures, which will be further discussed in Part 3.

The simple fact is that a licensing agency equipped with dispassionate Enforcement Analysts, who are well-trained in earth sciences, would never have allowed most of the complaints to be investigated, because they lacked any factual support. The Board’s hired Expert Consultants provided flawed information that could easily be refuted by standard references, and even the BPELSG’s website. In addition to training for its own staff, this clearly shows that the BPELSG needs an effective means of screening experts in the geosciences.

REFERENCES AND NOTES

1The case for the BPELSG is presented by Jonathan Cooper, Deputy Attorney General, and for the Respondent Kimberly Burr, Attorney at Law. Witnesses for the BPELSG: Jeffrey Johnson, Expert Consultant, who also acted as Expert Consultant in BPELSG’s investigation that led to the Citation here contested; and a written communication from Chuck Kull (acting as a second Expert Consultant hired by the BPELSG). Witnesses for Respondent (here referred to as the Accused): Jay Smith, geologist, and Jane Nielson, geologist

2The California Environmental Quality Act requires listing of all relevant reports considered during the decision-making process in the CEQA document

3The missing “geotechnical report”–RGH Consultants, Geotechnical Study Report, Fort Ross Vineyard Tasting Room, 15001 Meyers Grade Road, Jenner, California, August 6, 2009—is not a comprehensive geotechnical report. It’s principal purpose appears to be examination of soils at foundation points. It does not constitute a slope stability report

4Apparently the report delivered by Mr. Johnson, as Expert Consultant in the Fort Ross case, was deemed insufficient by the BPELSG, in particular as it exonerated the Accused in all issues investigated other than Charges 1 and 6. Charges 2 through 5 are all identical to those provided in Mr. Kull’s report, dated 4 months after Mr. Johnson’s report and 4 months before issuance of the Citation

5E.H. Boudreau, Geology & Groundwater Potential: Schwartz Property, 15001 Meyers Grade Road, Jenner, California, December 2009; EBA Engineering, Geologic Report for General Policy WR-2e 15001 Meyers Grade Road, Jenner, CA (UPE09-0027), EBA Job No. 10-1665, July 21, 2010

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