APEGGA DISCIPLINE COMMITTEE
DECISION

Date of Hearing: September 15 & 17, 2003
Date of Decision: June 10, 2004

IN THE MATTER OF the Engineering, Geological and Geophysical Professions Act

- and -

IN THE MATTER OF the conduct of [Engineer A], P.Eng. and Robert Weldon, P.Eng. regarding environmental site assessment services for [Company B]

1500 Scotia One, 10060 Jasper Avenue, Edmonton, Alberta, Canada T5J 4A2
Tel: (780) 426-3990 Fax: (780) 426-1877 Toll Free: 1-800-661-7020

DISCIPLINE COMMITTEE PANEL Rick Imai, P.Eng., Chair
Bruce Alexander, P.Eng.
Allin Folinsbee, P.Geoph.

Panel Counsel Dwayne Chomyn, Neuman Thompson

PARTIES

APEGGA Investigative Committee represented by Barry Massing, Hendrickson Gower Massing Olivieri

Members [Engineer A], P.Eng. and
Robert Weldon, P.Eng.

Members’ Counsel Mr. James R. Scott
Roddick, Scott & Johnson

BACKGROUND

On May 3, 2002, the Discipline Committee received, from the Investigative Committee, the referral for a discipline hearing concerning [Engineer A], P.Eng. and Robert Weldon, P.Eng.

(the "Members"). The Discipline Committee responded and requested that the Investigative Committee provide particulars of the matters to be heard. The charges were received May 23, 2002. After obtaining the availability of all necessary parties, a hearing date of November 12, 2002 was set.

On July 16, 2002, the Discipline Committee issued a formal notice of hearing and served copies on the Members through their counsel, Mr. Scott and on the Investigative Committee (the "parties"). At the same time, the Discipline Committee, according to its standard process for disclosure of documents, requested that the parties provide, to the Panel and to each other, copies of documents on which they intended to rely at the hearing. Those documents were provided to the Panel on November 6, 2002.

On November 8, 2002, Mr. Scott requested an adjournment that the Investigative Committee did not oppose and new hearing dates of April 9, 10 and 11, 2003 were set. On April 2, 2003, the Investigative Committee and Mr. Scott both requested another adjournment. The adjournment was granted, and subsequently the hearing was rescheduled to begin September 15, 2003.

THE HEARING

The hearing was held before the Panel at the Association’s offices in Edmonton on September 15, 2003 and reconvened on September 17, 2003. Mr. Massing represented the Investigative Committee. Mr. Scott represented Mr. Weldon and [Engineer A]. Final submissions and closing arguments were made in writing and put before the Panel on November 18, 2003.

CHARGES (ALLEGATIONS)

As noted in the formal hearing, the matters brought before the Panel by the Investigative Committee related to the conduct of Mr. Weldon and [Engineer A] in relation to services provided regarding a series of Phase II Environmental Site Assessments, 6 in number, prepared for [Company B] by [Company C].

1. "That in or about July and August, 1998, [Engineer A] authored a technical report, the content of which included geophysical data and interpretive conclusions beyond the training and expertise of [Engineer A], thereby constituting unskilled practice of his profession and a breach of APEGGA Code of Ethics Rule of Conduct No.2.

2. That in or about July and August, 1998, Robert Weldon authored a technical report, the content of which included geophysical data and interpretive conclusions beyond the training and expertise of Robert Weldon, thereby constituting unskilled practice of his profession and a breach of APEGGA Code of Ethics Rule of Conduct No. 2."

On the first day of the hearing, it was agreed to amend the charges to read:

R.V. Weldon, P.Eng.

1. That Mr. R.V.Weldon, P.Eng., signed and sealed several technical reports as follows:

a) Report 6119-1, date November 23, 1998
b) Report 6119-2, date January 22, 1999
c) Report 6119-4, date January 22, 1999
d) Report 6119-5, date May 17, 1999
e) Report 6119-6, date May 17, 1999
f) Report 6119-8, date May 17, 1999

The contents of which included geophysical data and interpretive conclusions beyond the training and expertise of R.V. Weldon, P.Eng., thereby constituting either unskilled practice of his profession or unprofessional conduct and a breach of APEGGA Code of Ethics Rule of Conduct No. 2.

[Engineer A, P.Eng.]

1. That [Engineer A], P.Eng., as responsible professional member for [Company C], signed and affixed the permit stamp of [Company C] to the following reports:

a) Report 6119-1, date November 23, 1998
b) Report 6119-2, date January 22, 1999
c) Report 6119-4, date January 22, 1999
d) Report 6119-5, date May 17, 1999
e) Report 6119-6, date May 17, 1999
f) Report 6119-8, date May 17, 1999

The contents of which included geophysical data and interpretive conclusions beyond the training and expertise of [Engineer A], thereby constituting either unskilled practice of his profession or unprofessional conduct and a breach of APEGGA Code of Ethics Rule of Conduct No. 2.

FINDINGS

1. R.V. Weldon, P.Eng., authored, sealed, and signed six reports that include EM-31 geophysical data in the form of contour maps purporting to represent sub-surface levels of conductivity. It is the opinion of the Panel that Mr. Weldon did not have adequate knowledge, or training, in the use of electromagnetic tools which are designed to provide an estimate of terrain conductivity, to conduct an electromagnetic survey and lacked the experience needed to ensure that data was properly acquired and numerically valid.

The Panel finds that Mr. Weldon’s conduct constitutes unskilled practice and a breach of APEGGA Code of Ethics Rule of Conduct No. 2.

2. [Engineer A], P.Eng, signed and affixed the permit stamp of [Company C] to six reports which include EM-31 geophysical data in the form of contour maps purporting to represent sub-surface levels of conductivity. It is the opinion of the Panel that [Engineer A] was not required to have specific experience, or training, in the use of electromagnetic tools which are designed to provide an estimate of terrain conductivity, and the data derived from them, in order to sign the permit stamp since APEGGA does not require the signing member to possess the specific training or expertise to support the contents of the reports.

The Panel finds that [Engineer A’s] conduct does not constitute unskilled practice or unprofessional conduct or a breach of APEGGA Code of Ethics Rule of Conduct No. 2.

THE REASONS

1. Mr. Weldon and [Engineer A] are both charged with a breach of APEGGA Code of Ethics Rule of Conduct No. 2 which states that "Professional engineers, geologists and geophysicists shall undertake only work that they are competent to perform by virtue of training and experience and shall express opinions on engineering, geological or geophysical matters only on the basis of adequate knowledge and honest conviction.” (1995). The Panel heard testimony from several witnesses and was provided with a voluminous amount of written documentation from both parties. Much of the material and testimony dealt with the subject of geophysics and whether the use of the electromagnetic tools to acquire terrain conductivity data fell within the exclusive scope of practice of geophysics, or was the use of these tools within the scope of practice of geotechnical engineering. According to the Engineering, Geological and Geophysical Professions Act [Part 1 section 7(1) ] “Subject to subsection (2) no individual, corporation, partnership or other entity except a professional geophysicist, a licensee so authorized in his license or a permit holder so authorized in the permit shall engage in the practice of geophysics”. However, given the specific wording of the charge, the Panel felt its decision must be based solely on the evidence pertaining to the training and experience of Mr. Weldon and Engineer A and how the EM-31 data contained in the reports, and the interpretations arising from that data, are supported by their training and experience. The Panel felt that the evidence provided as to whether or not the use and interpretation of the EM-31 data fell within the exclusive scope of practice of geophysics was not the issue raised in the charge. The question before the panel was whether the reports did contain geophysical data and whether these members had the training and experience to make proper and professional use of the data in the context of the matters before the panel.

2. The subject reports were prepared by Mr. Robert Weldon, P.Eng., as an environmental site investigation and baseline survey of six former [Maintenance Yards]. The primary purpose of the reports was to provide an assessment of the salt contamination of the soils and the groundwater within the site. The format and presentation for each report is similar and each essentially contains borehole data, Oakton TDSTestr electrical conductivity measurements, and an EM-31 survey. The EM-31 is an electromagnetic device used by geophysicists to estimate the electrical conductivity of the surface and subsurface down to a depth of 5 to 6 m. This conductivity data can then be interpreted to indicate areas of salt contamination.

The portions of the subject reports pertaining to the use of the EM-31 consist of a brief description of the field procedures used with the device, an appended contour plot, and one or two observational interpretations in the conclusions section. Mr. Weldon testified that he made no interpretations from the EM-31data but it is clear that the some of the conclusions, and the preparation of the contour maps, can only be as a result of interpretations of the EM31 data.

For example in the report on the Ponoka site under Tab 11B, page 8 it states “The EM contour map indicates that the salt contamination extends to the north ... and appears to extend to the northwest to just beyond the site boundary”. It is simply not possible to draw this conclusion from the soil sample data. Mr. Weldon did not even include a map in the report showing the soil conductivities as measured in the samples and cores. In his report under “Terrain Conductivity Survey” he writes, “The EM-31 measures soil conductivities in microSiemens/centimetre”. In fact the EM-31 measures conductivities in milliSiemens /metre (mS/m). Mr. Weldon then writes “ The resulting data was input into a contouring program to generate a contour map of the soil conductivity levels across the Site. The contour map for the site is included as Figure 3, in Appendix A.” There are no units specified on this contour map. There is no explanation for the discrepancy between the conductivities as measured in the test holes and the apparent conductivities as seen on the EM contour map. For example Test hole 98-2 shows an average conductivity down to 5 m of 2600 microSiemens/centimetre (uS/cm), and the EM contour map shows a value of about 60 at that location. Test hole 98-3 shows an average conductivity down to 5 m of 270 uS/cm, and the EM contour map shows a value of about 110. So at 98-2 the soil conductivities are 43 times larger than the EM contour map, and at 98-3 the soil conductivities are 2.5 times larger than the EM contour map.

The Panel felt that the interpretations presented in the conclusions are only basic observational comments and that these same conclusions could be drawn by the reader from an examination of the contour plot without being stated in the text. Hence, in the opinion of the Panel, a person without training or experience could make these simplified interpretations in geophysical surveying. However, the Panel does consider that the field acquisition of the data, and its refinement into the form of a contour plot, and the inclusion of this map in the final report to the client, would definitely require specific expertise to validate the raw EM-31 readings and properly transpose them into a contour plot.

3. The Investigative Committee presented testimony that acquiring data by means of the EM-31 device and making interpretations on that data, constitutes the practice of geophysics and therefore is beyond the qualifications of Mr. Weldon and [Engineer A] because they are not registered as geophysicists. While their actions may be considered a violation of the Engineering, Geological and Geophysical Professions Act, this is not the basis of the amended charges.

4. The Panel heard from Mr. Weldon that the EM-31 was only intended to be used as a tool to identify preferred locations for subsequent conventional core drilling and soil sampling techniques. He also indicated that he was not seeking exact levels of conductivity but only relative values. The reports however contain specific EM-31 references and detailed data contour plots which go beyond the scope of preliminary borehole screening and in fact, imply to the reader that they are accurate measurements of ground conductivity. There were no qualifications in the reports stating that the EM-31 results were based on cursory field investigation procedures and are not to be construed as accurate baseline measurements.

The Panel did not find fault with Mr. Weldon’s intent to use the EM-31 as a preliminary screening tool but did feel that if the EM-31 data and contour plots were only for this purpose then it should not have been presented, or referenced in the reports.

Mr. Weldon’s position that the EM-31 was only intended to be used as a screening tool is not supported by his “revised” proposal to [Company B] (dated May 22, 1998), that states that the EM-31 services offered would permit the preparation of a map showing the variations in electrical conductivity in the ground. This component of the project was added at the specific request of the client. There was no indication in this proposal that the EM-31 would be used solely to determine sampling locations or that the results were not intended as baseline measurements.

5. Mr. Weldon testified that he had only minimal prior experience with conductivity measurements and had no training with use of the EM-31 device or the experience to judge the suitability or accuracy of the raw data. He did retain Mr. Don Roy, an experienced EM-31 technologist, to assist him with the field data acquisition but testified that he relied on Mr. Roy’s recommendations to establish the survey procedure including the frequency and spacing of the readings and the background levels of conductivity.

The Panel felt that Mr. Weldon relied too heavily on Mr. Roy and that he should have had sufficient experience and knowledge on his own to properly conduct the field program. He should have been at least knowledgeable on the standard measurement units used and the magnitude of typical background values to be expected. Alternatively, Mr. Weldon should have stated clearly the limitations of his experience and knowledge and the limited purpose for which the data was purportedly being used. This is not a mere clerical or reporting error. The client requested that the firm use the EM-31. The natural inference is that they wanted someone knowledgeable in the use of and interpretation of the data.

6. The Panel heard evidence from the Investigative Committee that the EM-31 contour plots in the reports were numerically incorrect and that there are errors and inconsistencies with the units as stated. Mr. Johnston testified that after he converted the maps into the “correct” units of mS/m then the low (background) values seem reasonable but that the maximum values are too low, which could mean they underestimated the amount of contamination on the site by a very large factor. Mr. Weldon testified that he was unsure of the units at the time of writing the reports and that he was unable to contact the firm who supplied the EM-31 device because it was no longer in business. The Panel did not accept this excuse and felt that Mr. Weldon should have exhausted other sources in order to verify something as basic and essential as the units with which he was working.

ORDERS

On March 26, 2004, the Panel served its findings and reasons on the parties and requested them to provide written submissions on orders. Both parties made submissions, and the Panel received these on April 28, 2004. On May 4, 2004 the Panel requested the Director of Professional Practice (the Director) to provide information on the costs associated with the hearing. The Director wrote to the parties on May 5, 2004, indicating the costs that his office had determined and noting that if the parties had no objections, he would provide a copy of that letter to the Panel on May 12, 2004. Mr. Scott responded with a request for a breakdown of the Investigative Committee and Discipline Committee counsel services. The Director subsequently provided that information. No further comments or objections were received from either party, and the costs letter was provided to the Panel on May 28, 2004.

Pursuant to the Panel’s findings and the submissions made by the Investigative Committee and Mr. Scott, the Panel makes the following orders:

1. That Mr. Weldon be reprimanded for unskilled practice.

2. That Mr. Weldon pay to APEGGA the amount of $ 4,814.67, being 25% of the total costs of the hearing, such costs to be paid within 60 days from the date of these orders being served on him.

3. If Mr. Weldon fails to comply with Order 2 above, then his registration in APEGGA shall be suspended until Order 2 above is complied with.

The Panel noted in the submissions from both parties that Mr. Weldon has not been the subject of any previous disciplinary actions and that the conduct in question did not compromise public safety. The Panel agrees that a reprimand for unskilled practice is appropriate.

In assessing a portion of the costs against Mr. Weldon, the Panel has considered the reasons why [Engineer A] and Mr. Weldon elected to proceed with this hearing, and the Panel took note of the fact that there were no adverse findings against [Engineer A]. The adverse findings of the Panel stemming from the hearing were based solely on the actions of Mr. Weldon. Accordingly, a sanction of 25% of the costs is deemed appropriate.

DATED this 10th day of June, 2004 at Edmonton, Alberta.

___________________________________
Rick Imai, P.Eng.
Chair, Discipline Hearing Panel

Note Box:

Although there were no findings against one of the members in this decision, and the committee itself did not order publication, Council policy requires that The PEGG publish all discipline committee decisions. One member’s name and some other identifying words have been removed. Changed material spears in side large brackets.