Last week the Maine Supreme Judicial Court (the “Law Court”) issued a decision that reversed a determination by the Maine Board of Certification for Geologists and Soil Scientists (the “Board”) that a certified geologist had violated the Code of Ethics applicable to geologists and soil scientists (the “Code”) when interpreting groundwater data submitted to the Maine Department of Environmental Protection (“DEP”).  This decision may be of interest to clients, consulting geologists, and other environmental scientists working in Maine.

A geologist employed by an environmental consulting firm worked as part of a team engaged to assist a company in the closure of a landfill in Southwest Harbor.  In May 2004, the geologist submitted a report to the DEP in which he found elevated levels of sodium, manganese, iron, and volatile organic compounds in wells near the landfill, but concluded that none of the organic compounds exceeded federal drinking water standards or state guidelines.  The geologist also opined that there was no conclusive evidence linking the wells' elevated compound levels with the landfill.  Thus, he recommended no further action.

The geologist’s conclusion contradicted DEP’s earlier conclusion that some compounds were leaching from the landfill into neighboring residential wells.  DEP thus recommended that additional hydrogeological investigations be undertaken to evaluate the magnitude and extent of contaminants.  The parties agreed that the environmental consulting firm would drill additional wells and conduct additional testing at locations selected by DEP.  After receiving the geologist’s report presenting the results of the additional tests, DEP’s geologist told his supervisor that the consulting geologist’s interpretations and conclusions were “fundamentally flawed and not supported by the data.”  DEP’s geologist then filed a disciplinary complaint with the Board against the consulting geologist.

The Board’s disciplinary hearing focused on two features of the geologist’s second report: (1) his conclusion that there was no evidence that the landfill was impacting the residential wells, and (2) his conclusion that groundwater beneath the landfill did not flow toward the residential wells.  Both the DEP’s geologist and the Board’s expert, an associate professor of hydrology and environmental geology at the University of Maine, gave testimony in which they disagreed with the consulting geologist’s conclusions and expressed concern with his methods.  The consulting geologist defended his methods and analysis by testifying that he expected DEP to challenge his conclusions, and to request additional testing after he issued his 2006 report.  He further explained that he intended his report to express that, even if some compounds had leached from the landfill into the neighboring wells, there was no need to extend the investigation or delay closure because the levels of compounds found were below minimum levels provided by state and federal regulations.  Finally, the consulting geologist testified that he qualified his conclusion about the direction of the groundwater flow by stating that he was providing an “interpretation of conditions observed.”

The Board dismissed the allegation that the geologist had engaged in gross negligence, incompetence, or misconduct. Nevertheless, the Board concluded that the geologist violated the Code by giving a professional opinion “without being as thoroughly informed as might be reasonably expected, considering the purpose for which the opinion or report is requested.”  This finding was based on the Board’s determination that (1) the geologist stated he found no evidence that the landfill impacted neighboring wells, despite data and other facts that would reasonably support a contrary conclusion, and (2) his conclusion regarding the flow of groundwater was not reasonably supported by the data in his report.

The geologist challenged the Board’s conclusion in Superior Court, arguing that the Board had violated his due process rights by failing to establish the standard of professional competence that he was alleged to have violated.  Additionally, he contended that because the Board found that he did not issue a report containing false information, or engage in gross negligence, incompetence or misconduct, the Board could not have found that he issued an opinion without being as informed as might be reasonably expected under the circumstances.  The Superior Court rejected these arguments and the geologist appealed to the Law Court.

The Law Court reversed the Board’s decision.  The Court reasoned that the Board’s determination that the geologist violated the Code was based on the Board’s disagreement with the geologist’s conclusions, and not on his failure to meet the Code’s requirement to be thoroughly informed.  The Court pointed to the fact that both the Board’s expert and the Board had reached their conclusions based on the information in the geologist’s report, not by relying on information that he should have, but had not, obtained. 

In sum, the Court held that “[t]he Board’s disagreement with a geologist’s opinion, without a concurrent determination that the opinion is false, based on false data, or reflects the geologist’s incompetence, cannot be the basis for a determination that the opinion constitutes a violation” of the Code.  Further, the Court held that the Code does not allow for a determination of an ethical breach where the Board’s conclusion is simply that a geologist’s opinion is not reasonable in light of the underlying data.

Overall, this case shows that while courts will usually defer to an agency’s interpretation of its own rules, such deference is not absolute, particularly where an agency’s determination cuts against a rule’s plain language.  It demonstrates that a difference of opinion with an agency over interpretation of data, without more, does not constitute an ethical violation.  It also shows that environmental consultants may appropriately serve as advocates for their client’s positions, even if such advocacy is contrary to an agency’s position, as long as it is based on a reasonable interpretation of factual evidence.  Click here for link to the Law Court’s decision, Lippitt v. Board of Certification for Geologists and Soil Scientists.