The Issue Whether Respondent violated Sections 400.102, 400.121, and 400.23, Florida Statutes, and Rule 59A-4.133(16)(d), Florida Administrative Code; and, if so, what penalty should be imposed.
Findings Of Fact Petitioner, the Agency for Health Care Administration (Agency), is the state agency responsible for licensure and regulation of nursing homes operating in the State of Florida. Respondent, Golfview Nursing Home (Respondent/Golfview), operates a licensed nursing home at 3636 10th Avenue North in St. Petersburg, Florida. At all times relevant to this proceeding, the facility had fifty-seven (57) beds, but the usual occupancy was between thirty-two (32) and thirty-five (35). The Agency conducted an annual licensure survey of Golfview on April 3-5, 2001, during which the Agency surveyors evaluated the facility's compliance with state and federal regulations governing the operation of a nursing home. At the outset of the survey, on the morning of April 3, 2001, the surveyors expressed to Golfview staff concerns over the adequacy of the hot water temperature of the facility's dishwasher. One of the surveyors was concerned that the dishwasher was required to run four cycles before reaching 125 degrees, the specified temperature for operation of the type of dishwasher used at the facility. Based on the previous year's survey, Golfview staff members were aware of that concern and had a procedure in place to address the issue related to the dishwasher water temperature. Golfview established a procedure for achieving the specified hot water temperature of the dishwasher. The procedure was to run the dishwasher three cycles before running a wash cycle to overcome the cooling effect of a nearby air conditioner on the metal dishwasher. Golfview's standard dishwasher procedures did not include raising boiler temperatures. Nonetheless, in response to the concern raised by the surveyors regarding the dishwasher temperature, Respondent's maintenance director increased the temperature of the boiler at Golfview in order to increase the temperature of the water going into the dishwasher. The water at Golfview is heated by one 100-gallon boiler which is thermostatically controlled. The boiler is heated with propane gas and has a pilot light. Golfview has a circulating pump which circulates heated water throughout the building. The circulating pump is also thermostatically controlled. On the morning of April 3, 2001, and after the facility's maintenance director had raised the boiler temperature, the surveyors observed that the water temperature in some of the resident sink faucets seemed hot to hand touch. Consequently, the survey team leader asked the Agency's life safety inspector surveyor to test the water temperatures in resident rooms. Upon measuring the water temperature, the surveyor reported that he found the water temperature in one resident room to be 122 degrees Fahrenheit (hereinafter all references to temperatures will be in Fahrenheit degrees). However, that room was unoccupied and no resident was assigned to that room. Rule 59A-4.133(16)(d), Florida Administrative Code, requires the water temperature in resident rooms be between 105 and 115 degrees Fahrenheit. Later on April 3, 2001, the surveyors advised Golfview management of their concern that the water temperatures exceeded the rule requirements. In response, the Golfview maintenance director explained to the surveyors that he had increased the boiler temperature to accommodate the surveyors' concerns about the temperature of the dishwasher water and that he would reduce the boiler temperature. Soon after the maintenance director reduced the boiler temperature, the water temperatures in the resident rooms returned to the limits required by the applicable rule. On April 3, 2001, after 12:15 p.m., there were no resident rooms in which the water temperatures exceeded 115 degrees. Moreover, when the surveyors left Golfview at the end of the day on April 3, 2001, the water temperatures in the resident rooms were within acceptable ranges. Due to the surveyors' expressed concern over water temperatures in discussions with facility management, Golfview called its plumber on April 3, 2001, the first day of the survey. The plumber came to Golfview within thirty (30) minutes of being called and immediately began to work on and/or evaluate the hot water system. Plumbers returned to the facility the next day and continued to evaluate, work on, and/or adjust the hot water system throughout the April 2001 survey, including April 5, 2001. In fact, during most of the time the surveyors were at the facility, the plumbers were also there working on the hot water system. Based on the survey team's April 3, 2001, discussion with Golfview staff, the following day the team decided to conduct another check of the water temperatures in the resident rooms. On April 4, 2001, the thermometers to be used for the temperature checks were calibrated, and the surveyors measured the water temperature in 15 resident rooms. This water temperature check revealed that 4 of the 15 resident rooms had water temperatures higher than 115 degrees. On April 4, 2001, the surveyors were measuring the water temperatures in the resident rooms during the time the plumbers were at Golfview evaluating, working on, and/or adjusting the water system at the facility. On April 4, 2001, based on their water temperature measurements, the surveyors notified Golfview management that a situation of "immediate jeopardy" existed. Golfview immediately developed and implemented a plan of correction designed to protect staff, residents, and visitors from exposure to water temperatures in excess of that permitted by rule. Golfview provided its written plan of correction to the surveyors that same day. By 5:30 p.m. on April 4, 2001, the surveyors determined that an acceptable plan of correction had been presented and that the water temperatures were and would remain within levels required by rule. Because of the immediate action taken by the staff of Golfview as well as the physical limitations of the residents, residents of the facility were not in jeopardy of being burned or scalded by the hot water temperatures on either April 3 or 4, 2001. All but one of the residents required assistance with bathing and that resident is an alert, strong 55-year-old, wheelchair-bound male. With regard to residents needing assistance, the certified nursing assistants who provide assistance with bathing are specifically trained in the use of hot water with the elderly, including training to test water on themselves prior to bathing the residents. In total, throughout the three-day survey, including the period while the plumbers were adjusting the system, the surveyors found water exceeding 115 degrees in 4 out of the 15 rooms that were checked. The surveyors believed and noted on the survey report form that where the water temperature exceeded 115 degrees, the residents assigned to the room and other residents who might go into the rooms, were at risk for burning or scalding if they used the bathroom facilities. The survey report noted that the hot water temperature presented a potential for accident hazards from burns or scalding to skin, particularly for frail and elderly residents. However, despite the Agency's findings as reported and summarized on the survey report, the surveyors did not explain on the report nor did the Agency present evidence at hearing as to why or how the residents were at risk or in any imminent danger of being burned or scalded from hot water. The survey report indicated that on April 3, 2001, the administrator took immediate action to alleviate the potential risk of harm to any resident. The report stated in relevant part the following: Based on the excessive and fluctuating temperatures posing a serious threat to resident safety the administrator was advised of the nature of the problem and immediate jeopardy was identified. The administrator took immediate action, calling a plumber (who arrived within 30 minutes), made an announcement regarding the elevated temperature of the water over the intercom and requested that the hot water not be used until approval was given. Nursing staff then went back to each room and told all residents of the problem. The director of nursing staff stated showers were not to be given until the issue had been resolved. A department head meeting was held by the administrator. The plumber called in his supervisor to assist in determining the problem, temperature adjustments were made and following the lowering of the boiler temperature, temperatures were measured again and determined to be from 103 to 108 degrees F. The plumbers were scheduled to return 4/04/01 to further evaluate the systems. The facility administrator developed an acceptable action plan to maintain water temperature levels and ensure resident safety until it could be determined that the hazard was corrected. Based on the immediate action of the supervisor and the acceptable action plan to maintain safe temperature levels the jeopardy was removed at approximately 5:30 p.m. on 04/04/01. At the time of the April 2001 survey, Golfview had a written policy for monitoring and maintaining hot water temperatures at the facility. Included in the policy were requirements for regular monitoring and recording of water temperatures at the facility and for taking immediate corrective action in the event that water temperatures were found to be out of the designated range. Pursuant to Golfview's policy regarding the testing and regulation of hot water, the maintenance director is responsible for checking the water temperatures at the facility, including resident rooms, showers, and the kitchen dishwasher, and keeping a weekly written record of those temperatures on a log sheet. A copy of the log sheet, titled, "Weekly Hot Water Temperature Log Sheet," was attached to Golfview's policy regarding the testing and regulation of hot water. On the log sheet, spaces were provided to record the date of the testing, the name and title of the tester, the room where the hot water was tested and the temperature of that water. Finally, the log sheet included a section which directed the tester to document any concerns and plans of correction. On April 3, 2001, after reviewing Golfview's policy on hot water testing and regulation, the survey team requested copies of the weekly log sheets required to be maintained by the policy. Initially, the maintenance director told the survey team that there were no logs for them to review. However, the next day, the maintenance director provided the survey team with 13 sheets of paper on which he had recorded room numbers and the hot water temperatures in those rooms. Only 1 of the 13 sheets with room numbers and hot water temperatures included the dates the temperatures were measured. One of the sheets on which the maintenance director had recorded temperatures reflected the hot water temperatures as measured in selected rooms at Golfview on February 11, 2001, and March 29, 2001. On both days, the recorded hot water temperature for several rooms exceeded the temperature required by rule. The sheet noted that on February 11, 2001, four of the five resident rooms where water temperatures were measured had hot water temperatures of 116 degrees, one degree above what is required by rule. On March 29, 2001, at least seven of the resident rooms had water temperatures higher than 115 degrees. The maintenance director regularly measured and recorded the hot water temperatures at the facility. Typically, if he determined that the hot water temperature was not within the prescribed range, he made the necessary adjustments to the hot water system to resolve the problem. He did not nor did the policy require him to report the hot water temperatures to the facility administrator. The maintenance director did not record the concern or problem that existed on February 11, 2001, or March 29, 2001, that might have caused the elevated hot water temperatures in the facility. However, he recalled the problem that resulted in the elevated hot water temperatures on March 29, 2001. The credible testimony of the maintenance supervisor was that because the pilot light of the boiler had gone out, he came in about 5:30 a.m. on March 29, 2001. Upon arriving at the facility, the maintenance director relit the boiler and turned up the boiler temperature so that the water would reheat more quickly. He then continued to adjust the thermostatically controlled boiler while water temperatures stabilized and monitor water temperatures until they stabilized within proper range. When this process had to be implemented, it usually took about an hour to an hour and a half to adjust the hot water temperatures and get them back down to the required temperature range. Upon completion of the survey, the Agency documented its findings on a standard survey report form, titled "Statement of Deficiencies and Plan of Correction." On the form, each deficiency is noted and referred to as a "tag." The tags cited on the survey form for the April 3-5, 2001, survey of Respondent's facility relevant to this proceeding were Tags F323 and F490. Tag F323, which references 42 C.F.R., Subsection 483.25(h)(1)(2001), requires that the facility ensure that the resident environment remains as free of accident hazards as is possible. On the survey form, the Agency has stated that Respondent did not ensure the control of the temperature of hot water used by residents in that 4 of 15 rooms surveyed had hot water temperatures in excess of the 115 degree allowable under Rule 59A-4.133(16)(d), Florida Administrative Code. Tag F490, which references 42 C.F.R., Section 483.75 (2001), requires that Respondent’s facility be administered in a manner that enables it to use its resources effectively and efficiently to maintain the highest practicable physical, mental, and psychosocial well-being of each resident. On the survey form, the Agency noted that Respondent was deficient in this area because it failed to administer the facility to ensure the highest practicable physical well-being of each resident. Specifically, the report noted that the excessive hot water temperatures placed the residents at risk for burns and scalding. The Agency assigned both the Tags F323 and F490 deficiencies noted on the survey form as Class I violations. The Complaint also classified both allegations as Class I deficiencies and imposed civil penalties of $15,000 for the former allegation and $10,000.00 for the latter allegation. Golfview has no prior deficiencies related to water temperatures. Furthermore, Golfview's maintenance director has been employed by Golfview for five years and has never experienced a deficiency for water temperatures during that time or during his prior employment at another nursing home. There is no indication that prior to the events of April 3-5, 2001, and through that time, that Golfview had experienced any incidents or resident injuries due to excessive hot water temperatures or had any complaints because of excessive hot water temperatures. The Agency's surveyor team member who was designated as the Life Safety Inspector and who took most of the resident room temperatures during the April 2001 survey did not testify at the hearing in this case.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Agency for Health Care Administration enter a Final Order finding that Respondent did not violate Rule 59A-4.133, Florida Administrative Code, as alleged in the Administrative Complaint and, thus should not be assessed a civil penalty. DONE AND ENTERED this 6th day of November, 2001, in Tallahassee, Leon County, Florida. CAROLYN S. HOLIFIELD Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 6th day of November, 2001. COPIES FURNISHED: Diane Grubbs, Agency Clerk Agency for Health Care Administration 2727 Mahan Drive Fort Knox Building, Suite 3431 Tallahassee, Florida 32308 William Roberts, Acting General Counsel Agency for Health Care Administration 2727 Mahan Drive Fort Knox Building, Suite 3431 Tallahassee, Florida 32308 Alfred W. Clark, Esquire 117 South Gadsden Street, Suite 201 Post Office Box 623 Tallahassee, Florida 32301-0623 Michael P. Sasso, Esquire Agency for Health Care Administration 525 Mirror Lake Drive, North Suite 310-G St. Petersburg, Florida 33701
Findings Of Fact This case involves the Department's attempt to purchase and utilize eight water quality data transmitter/display/logger units to measure parameters of pH, conductivity, DO (dissolved oxygen), temperature, depth, salinity, an option for oxygen reduction potential, and an option for ammonia measurement simultaneously in either fresh water or salt water for a period of up to 48 hours. The Department mailed ITB No. 93-03, entitled Water Quality Data Transmitter/Display/Data Logger Unit, on October 7, 1992. The term "parameter" refers to specific measurements such a pH, dissolved oxygen, conductivity, depth, and temperature, those measurements that were called for in the ITB. The term calibration refers to adjusting the measurements by a comparison to a standard. Calibration is performed to compensate for drift or shift in measurements, usually over a period of time. ITB No. 93-03 contained the following specifications for the desired equipment under "special Conditions and Specifications": Water Quality Data Transmitter/Sonde - for use in both fresh and saltwater with automatic temperature compensation. Include temperature, conductivity, dissolved oxygen, depth, and low ionic pH system. Must be able to calculate or determine salinity and DO percent saturation. Must have option of adding additional probes, e.g. ORP and Ammonia. - 8 units. Water Resistant Digital Display/Data Logger Must be programmable for unattended data measurements for all parameters in item no. 1 above at various intervals (e.g. every 15, 30, 60 minute) and have the capability of logging all such data. - 8 units. Calibration/Maintenance Kits - Calibration for all parameters in item 1 must be simple, requiring 5 minutes or less for each parameter. - 8 units. Stirrer Units (if needed) - 8 units. PC compatible Software and Cable for data down loading - 8 units. Sonde to Logger/Display Unit Cable - at least 50 feet. - 8 units. Unattended Monitoring - Must be able to log and maintain water quality data file for a sampling frequency of 15 minute intervals over at least a 48 hour period while in an unattended mode of operation - 8 units. Field Carrying Case for Sonde and Display/Logger Unit - 8 units. User Manuals - 8 Units. Probe weights (if needed) - 8 units. ITB No. 93-03 specified the following warranty and delivery requirement: Must carry 2-year warranty on Sonde, Display/Logger Units, Stirrers, and Cables. Warranty service must be provided within two weeks of notification or, if extended repair period is required, then loaner units must be made available at no cost to DER during the warranty period. Delivery must be within 45 days of bid award. Petitioner Solomat's bid of $50,086.32 was the lowest when bids were opened on October 23, 1992. The company's written equipment specifications provided by the Petitioner to the Department were similar or superior to the written specifications provided with the competing bid responses. They were submitted in compliance with "General Condition" No. 7, page 1 of the ITB, which required submission of full specifications. Dr. Wayne Magley, on behalf of the Department, requested that Petitioner demonstrate the equipment it was offering in its bid response because the Department was not familiar with the Petitioner nor its equipment. After the bid opening, and before award in November 1992, Petitioner demonstrated its existing MPM4803 production unit for the Department in Florida, along with the 803PS sonde. A sonde is a multiparameter probe. The 803PS sonde was capable of being plugged into the existing MPM4803, and the WP4007 and WP803 data logger units then under development by Solomat. Petitioner agreed to modify its software for the MPM4803 to add the ability to read out in milligrams per liter (MG/L), a capability not mentioned in the ITB specifications or in Solomat's company specifications. This software modification contributed to the Department's subsequent calibration troubles because, according to Mr. Stonier, the modification of the unit software rendered Solomat's "how to" manual less accurate, detailed, and specific than it would have been for the unmodified software. The Petitioner amended its bid offering by letter dated November 5, 1992, to include, in addition to its October 20, 1992 bid response, the following: Stainless Steel Relief Cables with each unit Display D.O. readings in MG/L. A day of On-Site training from a Solomat factory representative A day of training at each local site from Geometrics. The ITB had only called for a water resistent product, but during this same pre-contract award period, Department personnel expressed a need to hose off the equipment. Hosing off the equipment would require a waterproof unit, so Petitioner offered the option to upgrade to new instruments slated for development and sale in April or May of 1993. In so offering, Solomat's representative described to Department personnel a WP4007 unit then under development. Solomat also had its WP803 unit under development. The WP803 also was intended to be developed to be waterproof. The WP803 was not part of Petitioner's additional offers to the Department in November 1992. Although Mr. Stonier asserted at formal hearing that Solomat's November 1992 upgrade offer was not integral to the finalized November 1992 bid award, he conceded that the Solomat offer was, "something Solomat was obliged to provide." In fact, this offer was reduced to writing. In response to the Department's concerns about hosing off the units, the Petitioner also promised a latex boot to protect the probe on the MPM4803 unit. This offer also was reduced to writing. The Petitioner further amended its bid response by letter dated November 10, 1992, to include, in addition to its October 20, 1992 bid offering and its November 5, 1992 enlargement of that offer, the following: Both versions of the weighting bracket will be provided with each unit. Two year warranty will cover any damage due to immersion or intrusion by salt air. Bottom latex boot will be supplied in addition to latex cover which you saw displayed today. A wrist strap will accompany each unit. Any further software (CS4) or Eprom updates will be available at no charge. SOLOMAT will extend the option to upgrade any or all of the instruments, with our new, fully waterproof version WP4007, within the next year at no charge. We will ship demo MPM 4803, fully preprogrammed, to be received by D.E.R. prior to November 18, 1992. Petitioner knew via the original ITB specifications and by the further discussions that took place in November 1992 after the bid opening and prior to the final award and purchase order that the Department was concerned about the ruggedness, watertightness, and use of the eight instruments in the field for extended periods in various conditions and types of water. No. 1 and No. 7 of the ITB "Special Conditions" specifications clearly stated that the Department wanted to leave the units on site for 48 hours in varying types of water. At formal hearing, Mr. Stonier admitted he knew in November 1992 that was what the Department wanted to do even if the ITB were confusing. The Petitioner knew that the Department would be utilizing the water quality monitoring equipment under diverse conditions in the field because Mr. Stonier's November 12, 1992 letter to the Department provided as follows: The D.E.R.'s application includes the tough everyday use in varied environments that demands the ruggedness and reliability that the Solomat instruments have been designed and are each tested for. Mr. Stonier testified at formal hearing that it was understood in November 1992 . . that the units were going to be carried out on site into various types of measurement situations, . . . and that the probes would be -- the 803PS sonde would be submerged, and samples would be recorded. And these instruments are certainly designed to do that. in fact, they're designed where they can be left out on-site for longer periods of time. The Department accepted the Petitioner's October 20, 1992 bid as amended by its November 5 and 10, 1992 letters, and in reliance on those letters. Although the ITB contained no definition of "accuracy", the Department's acceptance of Petitioner's bid also included reliance on Solomat's equipment specifications regarding equipment accuracy submitted by Petitioner in its response to "General Condition" No. 7, page 1 of the ITB. The bid acceptance and subsequent purchase order occurred on or about November 20, 1992. The purchase order is not in evidence. In January 1993, Petitioner delivered eight MPM4803 units and eight 803PS sonde units to the Department in response to the bid award/purchase order. This model was equipped with a latex boot, but the Department complained about the waterproof ability of the boots, and Petitioner promised to provide wider latex boots. Petitioner's training representative provided one day of training in Tallahassee and one day of training in Orlando in early February, 1993. Petitioner's training representative encountered difficulty in demonstrating how to calibrate the equipment at the February 1993 Tallahassee training session which he was unable to resolve prior to calling Petitioner's U.S. headquarters for technical assistance. Beginning in early February 1993, Department personnel repeatedly encountered problems in calibrating the Petitioner's equipment. Calibration problems were encountered in trying to follow the manuals provided by the Petitioner despite some additional written instructions beyond the original faulty manual (see Finding of Fact 11) and despite oral instructions by telephone. There also were continuing problems with the pH sensor, with conductivity, and with DO (dissolved oxygen). Beginning in February 1993, Department personnel repeatedly encountered problems with Petitioner's equipment's inability to stay calibrated and to take accurate measurements resulting from excessive drift. Solomat employees perceived the Department users as unsophisticated and slow to understand how to use the Solomat equipment, and as preferring the earlier models of similar units with which they were more familiar and which had been developed by competitive vendors. Indeed, some documented user errors included Department personnel failing to remove probe guards on sensors. Some OC3 dissolved oxygen sensors in the 803PS sonde had to be replaced by Solomat due to user error in installing them without the 0-ring so that water could seep in and damage the equipment or with two 0-rings so that there was no contact between the electrode and the probe sonde. However, these types of human error did not significantly affect valid tests showing calibration drift and accuracy reading problems. It is noted that P-5 (Loxahatchee notes), an August 24, 1993 28 day "short informal report" relied upon by Petitioner to show that some persistant, open-minded Department users could learn to correctly calibrate the MPM4803 data loggers/803PS sondes and that good data could be gathered over more than 48 hours, contains on its first page the comment, "Stabilities were very good except DO; it is unclear whether this was due to probe response drift or improper calibration by Solomat representatives." Department personnel tracked their problems with the Petitioner's MPM4803 equipment's failure to take accurate measurements by sampling at field sites which have been consistently tested by Department personnel with other equipment over a period of years so that they had a background of data for comparison for any given parameter. When they were unable to account for significant drifts of calibration and even negative readings in some parameters on Petitioner's products, Department personnel then used other vendors' water quality monitoring equipment to confirm that the Petitioner's equipment was not giving consistently accurate measurements. Although Petitioner's witnesses testified concerning their perception that such methods of comparison lacked accuracy and fairness, they offered no better field tests as an alternative. Petitioner's concerns mostly centered around other vendor's meters also sometimes registering outside ITB or company specifications. However, in fact, the Department was making some of its assessments based upon calibration and post-calibration readings on the same Solomat meter each time. In light of the testimony of John Kent Edwards that in his District, he personally calibrated the Petitioner's units every morning in the laboratory before they went out in the field and that careful post calibration procedures on the same meters still demonstrated significant drift; the testimony of Mr. Edwards and Louis They that standard calibration solution or calibration solutions prepared fresh by a chemist were used in calibrating Petitioner's units to eliminate variables of that sort; the admission by Don Roos to Department personnel in July 1993 that it could take five minutes to stabilize DO on the low end and on the high end (see Finding of Fact 36); the acknowledgement by Peter Ebersold that it is possible that DO and pH drift would violate ITB specifications and Petitioner's own equipment specifications over more than 24 hours in dirty water; Dr. Saffel's uncontradicted testimony that the calibration on all Petitioner's units provided to the Department were written only for generic water, not water as bioactive as some of Florida's water, and that Petitioner's units' long term stability of calibration depends very strongly on the purity of the water being measured; and Wayne Magley's testimony that a subsequent Winkler Titration test in the laboratory verified the other vendors' scores but not Petitioner's scores while showing that Petitioner's units were working correctly, and that statistical correlations of all the meters were done, it is found that the Department's testing procedure is probative and persuasive that the MPM4803 units were not meeting certain specifications encompassed in the bid award/purchase order. The Petitioner's assertion that low ionization cables threw off all calculations is in the nature of a nonsequitur, since this type of cable was agreed upon in the amended bid responses, became part of the parties' contract, and Petitioner was required to provide workable units under that agreement. Petitioner's assertion that the conversion of readings to MG/L was the problem falls in the same category. During 1993, both parties made repeated good-faith attempts to resolve the calibration and instrument accuracy problems, with the Department informally telephoning Petitioner for assistance and sharing information among the Department's Tallahassee office and district personnel. By a June 9, 1993 letter, the Department provided Petitioner its data showing its employees were not able to get consistent, reasonable readings with the Solomat units. In June 1993, Wayne Magley, on behalf of the Department, asked the Petitioner to provide additional on-site assistance because Department personnel were still unable to resolve problems with calibrating and using Petitioner's equipment despite Petitioner rendering helpful technical advice when called by Department personnel. Dr. Magley specifically asked for Don Roos because of Mr. Roos' history of being extremely knowledgeable about the equipment and rendering helpful technical advice when called. In July 1993, Don Roos and Peter Ebersold came to Florida to provide assistance at the Department headquarters in Tallahassee and Orlando District office. During the Tallahassee visit, Mr. Roos admitted that it could take up to five minutes for DO to stabilize before it could be calibrated for low end and five minutes for DO to stabilize for high end, for a total time in excess of 10 minutes for one parameter. This calibration time violates the Department's bid specification that each parameter must be calculated in five minutes or less. Misters Roos and Ebersold observed Department staff calibrating the MPM4803 with the 803PS sonde during their July 1993 visit to Tallahassee and did not have any criticism of the Department staff's calibration process. Petitioner diagnosed a problem with its MPM4803 units as being that some Department users were inadvertently recalibrating temperature and misinterpreting "error" message prompts, thus throwing all the readings off. Therefore, Solomat made a change to eliminate "temperature" from the recalibration cycle and changed the Eproms on the Department's units to simplify the procedure. Despite trying to get the wider latex boots for the MPM4803 units until July 1993, Petitioner was unable to obtain wider latex boots and at that point gave up trying to get the required improved boots for the MPM4803 units, in anticipation of being able to upgrade the Department to newer units. The Petitioner reiterated in correspondence as late as August 3, 1993 that the Department would be receiving an upgrade from the MPM4803 to the WP4007 units, stating, "[t]he exchange of your MPM4803s with the new WP4007 waterproof dataloggers will occur near the end of the year." Dr. Saffell testified that the Department was promised an upgrade on his authority. By a November 15, 1993 letter, the Department reported to Petitioner that most of its employees still could not calibrate for each parameter within the five minutes or less as required by the ITB specifications and still had difficulty getting consistent readings. The Department wanted to return the units for refund. By a December 7, 1995 letter, the Department notified Petitioner that it intended to find Petitioner in default of the bid contract including failing to provide the promised upgraded units in any timely fashion despite Petitioner's promise to do so within a year of its November 10, 1992 bid amendment and because the Petitioner's equipment could not be consistently calibrated in five minutes or less for each parameter as required by the bid specifications. The Petitioner also had never supplied the latex boot as agreed. It is clear that as of the December 7, 1993 letter, Petitioner was in default on the foregoing three elements of its contract with the Department. By letter dated December 13, 1993, Petitioner notified the Department that it still wished to provide the instrument upgrade. In this letter, Petitioner unilaterally changed the model it was going to provide from the WP4007 to the WP803, on its own assessment that the WP4007 had too many options and a more user friendly unit would be less confusing to Department users. The WP4007 features which are not on the WP803s were not part of the original ITB specifications. The WP803, like the WP4007, was intended to be waterproof. Solomat's specifications for the WP803 were intended to exceed those of other vendors for comparable machinery. Despite Solomat's best intentions to have both the WP4007 and the WP803 models fully developed and ready for the market in April or May of 1993, neither the WP4007 nor the WP803 was released in the United States until February or March 1994. By letter dated December 21, 1993, the Department gave Petitioner until February 1, 1994, to correct its failed performance under the contract by supplying eight replacement units that met the specifications agreed upon back in November 1992. No mention was made of what model unit would be necessary, however the Petitioner was notified that the replacement units had to be provided to the Department for testing and that the units had to be acceptable to the Department after testing by February 1, 1994 in order for Petitioner to avoid being found in default of the bid contract. The Department did not, in this letter, or at any other time, specifically agree to accept the WP803 upgrade instead of the promised WP4007 upgrade, but specified that a failure to supply eight upgraded units and have them timely accepted by the agency would result in default. Petitioner responded that it would provide two prototypes or preproduction units to test in January and try to meet the Department's February 1, 1994 deadline for delivery of eight upgraded units. The Department allowed Solomat until February 15, 1994 to exchange eight satisfactory upgraded units for the eight MPM4803s originally supplied. Petitioner delivered two WP803 preproduction units and provided some training in January 1994. WP4007 preproduction units could have been provided but were not. Because development had lagged behind marketing, Petitioner had inventory of neither WP803 nor WP4007 production units. The Department conducted testing, some of which could be considered limited field use, on January 18-20, 1994 on the prototype or preproduction WP803 units with Petitioner's representatives present. Petitioner's representatives did not criticize Department personnel's calibration procedures. On January 28, 1994, the Department provided the Petitioner a written summary of its findings as a result of the testing which included a four-point conclusion that the new units did not meet bid specifications. Petitioner's witness conceded the following: The circuit boards on the preproduction WP803 units tested in January 1994 had been assembled by hand. The internal programming on the Eprom was not fully debugged. There were problems with the conductivity linearizations. Petitioner attempted to interface those instruments with the 803PS sondes the Department already possessed and the modifications did not work. Petitioner did not intend these prototype WP803s to be used in the field because, among the foregoing problems, they were not fully waterproof. Petitioner's review of the Department's test data in February 1994 on the prototypes convinced the company that there were problems that went beyond mere user problems. Some parameters were acceptable but results were not reliable for all parameters. The testimony of John Kent Edwards, Louis They, and Wayne Magley together with Petitioner's assessment is sufficient to establish that despite a fair test, calibration drift for Petitioner's preproduction WP803 units tested on January 18-20, 1994 failed quality assurance levels and did not meet certain specifications of the contract. The Department eventually extended the February 1, 1994 deadline until February 21, 1994. The Department conducted additional testing on the WP803 production units supplied by the Petitioner prior to February 21, 1994. Wayne Magley set up and calibrated three of the production units received. One machine had an immediate hardware failure. Over a week, he did a series of calibrations and post-calibrations in the laboratory and one field trip. Despite employing calibration methodology to give Petitioner the benefit of the doubt and even accounting for low ionic strengths, the "five minutes for calibration of each parameter" specification could not be met. Problems with accurate readings remained even when Petitioner's instruments were tested against each other. Department testing on the WP803 production units demonstrated that they also failed to meet either the ITB specifications or the company specifications provided by the Petitioner as part of its bid. By a March 3, 1994 letter, the Department notified Petitioner it was declaring a default, pursuant to Rule 60A-1.006 (3) F.A.C. By mid-February, Petitioner had not supplied more than four production level WP803s. The Department instructed Solomat not to ship any more units because Department tests on the first four made the Department not want to progress further. Petitioner did not send the additional WP803 production units. The Department ended up with four MPM4803 production units, four WP803 production units and four 803PS sondes. Solomat has four 803PS sondes at its Connecticut office marked, "DEP property." In August 1994, Petitioner provided its production level WP803 data logger and 803PS sonde to U.S. Testing Labs which performed an independent evaluation to determine if the problems that the Department had experienced were with the units or with the users. Daniel Cooke, Ph.D., was in charge of the test. He, like the Department, had some initial start up difficulty, including learning how to calibrate with oral instructions over the telephone beyond the printed December 1993 instruction manual; a loose connection that Petitioner had to repair; and conductivity adjustments that Solomat had to make. As a result, he aborted the first test on his own and aborted the second try at a test at the request of Solomat. He found he was able to calibrate with the June 1994 instruction manual Petitioner created after the Department had claimed a default. His test results also showed that: 1) high DO was outside of specification throughout the test; 2) conductivity was outside of specification throughout the test; 3) salinity was outside of specification throughout the test; and 4) all parameters were outside of Petitioner's specifications at times during the testing. Petitioner's witness conceded that there could be some drift over the period of a week in the field, some small drift over two hours even in the lab calibrations and DO and pH drift could violate the ITB's "48 hours" specification, dependent upon the pollution of the water in the field. A few months before formal hearing, Petitioner revised its own company specifications to define more realistic tolerances under actual field conditions as 24 hours and two weeks after calibration. The Department represented that it has not yet gone to the next bidder or established a timetable and assumed any costs of reletting the ITB, as contemplated by Rule 60A-1.006(3) F.A.C., because it has no money to do so. Accordingly, there is no evidence of cost of reprocurement which the Department seeks to assess against Solomat (TR-12-13)
Recommendation Upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Department of Environmental Protection enter a final order that (1) determines Petitioner to be in default of its contract; (2) orders Petitioner to reimburse the Department $50,086.32 as refunded contract monies, without any additional cover costs; (3) orders Petitioner to pay to the Department, on or before the date payment of the contract monies is made by Petitioner, an amount equal to the actual cost of contracting with the next lowest bidder or the cost of reprocurement or the costs attendant upon replacement purchase on the open market in an amount either stipulated between the parties or as estimated upon past agency experience in letting the original bid/contract; (4) provides for the return of all equipment to Petitioner upon satisfaction of the requirements of paragraphs 2-3; and (5) provides for the removal of the agency decertification upon the satisfaction of the requirements of paragraphs 2-3. RECOMMENDED this 2nd day of August, 1995, at Tallahassee, Florida. ELLA JANE P. DAVIS Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 2nd day of August, 1995. APPENDIX TO RECOMMENDED ORDER 94-1682 The following constitute specific rulings, pursuant to 5120.59(2), F.S., upon the parties' respective proposed findings of fact (PFOF) Petitioner's PFOF: 1, 9, 12-14, 16-18, 21-25, 29-31, 48, 50, 53, 64, 68, 71-72, 80-81, 83-87, 89-90, 93, 94, 96, 101-102, 123, 127-128, 130, 133, 136, 146, 148, 149, and 153 Substantially accepted except for unnecessary, subordinate, and/or cumulative material which has been interspersed therein and except for legal argument and proposed conclusions of law for which a ruling under s. 120.59(2) F.S. is not required. 2 Covered in the preliminary statement. 3-8, 10, 27, 61, 82, 91-92 99-100, 112, 115, 117, 121-122, 125, 139-140, 142-143 Rejected as immaterial or non-dispositive of any material issue of fact. 11, 19-20, 28, 51-52, 54-55, 63, 73-78, 107-108, 124, 134-135, 137 Rejected as subordinate to the facts as found. 62, 65-67, 88, 98, 103-106, 113-114, 116, 118, 126, 129, 131-132, 138, 141, 144-145, 147 Rejected as out of context, misleading, and/or as they are stated, these proposals are not supported by the greater weight of the credible competent evidence of record. 15, 26, 49, 56-60, 69-70, 79, 95, 97, 119-120, 150-152 Rejected as stated because not proven as stated. Same material substantially covered in the recommended order 32-47 Rejected in part as misleading and/or not supported by the greater weight of the credible competent record evidence; otherwise rejected because it is non-dispositive in that it is selectively culled opinion testimony. There were two aborted tries to do the test before the final data was run; all raw data (including the aborted tries) had been turned over to Solomat, so that additional inquiry of Daniel Cooke, the witness, was limited. Rejected further because it does not reach the dispositive material facts that Solomat did not supply the items called for in their negotiated/modified contract. This was ultimately a laboratory test with a new manual, not a field test with the old manual and the specifications were ultimately modified. Same material substantially covered in the recommended order. 109-111, 154 Substantially rejected as mere legal argument or as a conclusion of law not requiring a ruling pursuant to s. 120.59(2) F.S. Otherwise covered in the Conclusions of Law. Respondent' s PFOF: 1-6, 9-17, 19-29, 31-39, 41-43 Substantially accepted except for unnecessary, subordinate, and/or cumulative material which has been interspersed therein and except for legal argument and proposed conclusions of law for which a ruling under s. 120.59(2) F.S. is not required. 18, Rejected as subordinate to the facts as found 7-8, 30, Rejected as immaterial or non-dispositive of any material issue of fact. 40, 45 Substantially rejected as mere legal argument or as a conclusion of law not requiring a ruling pursuant to s. 120. 59(2) F.S. Otherwise covered in the Conclusions of Law. 44 Covered in the preliminary statement. COPIES FURNISHED: Robert S. Cohen, Esquire Pennington and Haben, P.A. Post Office Box 10095 Tallahassee, Florida 32301 Candi E. Culbreath, Esquire Department of Environmental Protection 2600 Blair Stone Road Tallahassee, Florida 32399-2400 Virginia B. Wetherell, Secretary Department of Environmental Protection Douglas Building 3900 Commonwealth Blvd. Tallahassee, Florida 32399 Kenneth Plante Department of Environmental Protection General Counsel 3900 Commonwealth Blvd. Tallahassee, Florida 32399
The Issue The issue presented is whether Respondent Seanic Corporation's application for an operating permit for a domestic wastewater treatment facility should be granted.
Findings Of Fact On January 20, 1994, Respondent Seanic Corporation submitted to Respondent Department of Environmental Protection an application to construct a wastewater treatment and disposal facility. The application requested approval to construct a facility with a design capacity of 15,000 gallons per day and to discharge its treated effluent to G-III groundwater through two Class V injection wells. Although the Department had no rules with specific depth requirements for such wells, the plans that accompanied the application contemplated wells with a total depth of 90 feet below land surface, which would be cased down to a depth of 60 feet below land surface. On February 23, 1994, the Department gave notice of its intent to issue the requested construction permit. Petitioners did not challenge the issuance of the construction permit, and the Department issued the permit on April 22, 1994, with an expiration date of five years after the issuance of the permit. On February 17, 1999, Seanic began construction of the permitted facility, including the construction of the two Class V injection wells. At the time the wells were first drilled, there were no statutes or rules regarding the appropriate depth of underground injection wells at a facility like Seanic's. Construction of the Seanic facility was completed before April 12, 1999, as reflected by the Certificate of Completion of Construction for the permitted facility. On April 21, 1999, Seanic filed with the Department its application to operate the facility. Chapter 99-395, Laws of Florida, became effective on June 18, 1999, approximately two months after the facility was constructed and the operating permit application was submitted. Section 5 of Chapter 99-395 defines the term "existing" to mean "permitted by the Department of Environmental Protection or the Department of Health as of the effective date of this act." Chapter 99-395 imposes different effluent limitations for "existing sewage facilities" than those that are applied to new facilities. For facilities that have a design capacity of less than 100,000 gallons per day, new facilities must provide treatment that will produce an effluent that contains no more, on a permitted annual basis, than the following concentrations: Biochemical Oxygen Demand (CBOD5) of 10 mg/L Suspended Solids of 10 mg/L Total Nitrogen of 10 mg/L Total Phosphorus of 1 mg/L These standards are frequently referred to as the "10-10-10-1 Standard." In accordance with Section 6(4) of Chapter 99-395, "existing sewage facilities" have until July 1, 2010, to comply with the 10-10-10-1 standard. Prior to that date, "existing sewage facilities" must meet effluent limitations of 20 mg/L for both CBOD5 and suspended solids and must monitor their effluent for concentrations of total nitrogen and total phosphorus. The Seanic facility is an "existing" facility, as that term is defined in Chapter 99-395, and, therefore, has until July 1, 2010, to comply with the 10-10-10-1 standard. Section 6(7)(a) of Chapter 99-395 requires Class V injection wells for facilities like Seanic's to be "at least 90 feet deep and cased to a minimum depth of 60 feet or to such greater cased depth and total well depth as may be required by Department of Environmental Protection rule." The Department has not promulgated any rules requiring Class V injection wells to be deeper than the depth prescribed in Chapter 99-395, Laws of Florida. As of January 26, 2000, the total depth of Seanic's injection wells measured 92 and 94.5 feet, respectively. On November 24, 1999, the Department entered its notice of intent to issue the operating permit applied for by Seanic and attached to the notice a "draft permit" with the conditions and effluent limitations that would be applied to the facility. In issuing the notice, the Department determined that Seanic had provided reasonable assurance that the facility will not discharge, emit, or cause pollution in contravention of applicable statutes or the Department's standards or rules. The draft permit included effluent limitations of 20 mg/L for both CBOD5 and suspended solids and required Seanic to monitor its effluent for total nitrogen and total phosphorus, in accordance with Chapter 99-395, Laws of Florida, and the Department's rules for existing sewage facilities. The draft permit notes that Seanic must comply with the 10-10-10-1 standard by July 1, 2010. Because Seanic's condominium development has not been completed and the wastewater treatment facility is not expected to go into operation for approximately one year, the draft permit also requires that the facility be re-inspected and re-certified immediately prior to going into operation. The Seanic facility was designed to create an effluent that is several times cleaner than required by Department rules. The facility uses an extended aeration process that is expected to reduce levels of both biological oxygen demand ("BOD") and total suspended solids ("TSS") to lower than 5 mg/L, concentrations that are 75 percent lower than the effluent limitations in the draft permit. Similar facilities in the Florida Keys have shown that they can achieve BOD and TSS concentrations of less than 5 mg/L. The Seanic facility has also been designed to provide a greater level of disinfection than required by law. While the draft permit requires only that the facility maintain a chlorine residual of 0.5 mg/L after fifteen minutes' contact time, the facility has been designed with larger chlorine contact tanks to provide a chlorine contact time of approximately one hour at anticipated flow rates. The facility operator can also increase residual chlorine concentrations. These facts, along with the reduced TSS levels at this facility, will provide considerably greater levels of disinfection than the law requires. Although the draft permit does not contain effluent limitations for total nitrogen or total phosphorus, the levels of these nutrients expected to be present in the Seanic facility's effluent are approximately 5 mg/L and 2-3 mg/L, respectively. Studies conducted on the rate of movement of phosphorus in the subsurface indicate that some of the phosphorus is rapidly immobilized through chemical reactions with the subsurface soil matrix. Specifically, studies conducted on injection wells in the Florida Keys report that 95 percent of the phosphorus is immobilized within a short time after entering the injection well. Studies conducted on the rate of movement of nitrates in the subsurface indicate that some nitrate migration is also retarded through chemical reactions with the subsurface soil matrix. More specifically, studies conducted with injection wells in the Florida Keys report that denitrification removes approximately 65 percent of the nitrates within a short time after the effluent enters the injection well. In addition to the chemical reduction of phosphorus and nitrogen levels in the groundwater, studies conducted on injection wells in the Florida Keys with a total depth of 90 feet and a cased depth of 60 feet have reported extremely high dilution rates by the time effluent injected into such wells would appear in surrounding surface waters. More specifically, studies using chemical and radioactive tracers have reported dilution rates on the range of seven orders of magnitude, i.e., 10 million times. After undergoing chemical reduction in the groundwater as well as extremely high dilution rates, the levels of nitrogen and phosphorus that would be expected to enter Captain's Cove and the adjacent canals will be infinitesimal, i.e., less than one part per trillion. Such levels would be several orders of magnitude below detection limits of currently available analytical methods. The surface waters in the artificial canals and in Captain's Cove surrounding the homes of Petitioners' members are classified by the Department as Class III waters that are predominantly marine. The permitted levels of fecal coliform bacteria in the facility's effluent (as restricted in the draft permit) are identical to the discharge limits for fecal coliform bacteria in Class III waters that are predominantly marine. The operation of Seanic's facility will not result in discharges of fecal coliform bacteria in excess of the applicable effluent limitations. Petitioners' expert witnesses agree that the facility, as designed, will comply with all of the conditions and effluent limitations in the draft permit. No Department rule or standard will be violated by this facility. The Department has not promulgated any effluent limitations or standards for viruses to be discharged to G-III groundwater or Class III surface waters that are predominantly marine. Petitioners' members use and enjoy the clear waters in their canals and in Captain's Cove. They have had the water quality tested four times a year since 1988. Captain's Cove, along with the adjacent canals, has remained a clear, oligotrophic water body with minimal algae growth. Petitioners' members fear that the introduction of viruses and other microorganisms through the facility's effluent will cause swimming in Captain's Cove and the adjacent canals to be harmful to their health. Their fear has been heightened by newspaper stories about viruses and a publicized study which erroneously claimed that Captain's Cove had high levels of harmful bacteria. Petitioner Port Antigua Property Owners Association ("PAPOA") received notice of the Department's intent to issue an operating permit to Seanic. The president discussed the permit with another resident, a microbiologist, who in turn discussed the facility with geologists and reviewed studies performed in the Florida Keys. Their serious concern over the depth of the injection wells and the possible release of viruses and bacteria harmful to the marine environment and to the public health was expressed throughout PAPOA's petition, and a copy of one of the tracer studies upon which they relied was attached to the petition. The president of Petitioner Port Antigua Townhouse Association, Inc. ("PATA"), who is also a member of PAPOA, discussed the Department's notice of intent with the president of PAPOA and the microbiologist. He also discussed the project with a member of PATA who oversees Broward County's wastewater treatment facility, which has the same effluent limitations as the Seanic facility. PATA members believed they should join with PAPOA and the Lower Matecumbe Key Association in requesting a hearing on Seanic's operating permit. PATA and others have also filed litigation in the Circuit Court against Seanic Corporation and others. That litigation is still pending. Petitioners were not able to cite any statute or rule that would be violated by the Seanic facility's discharge. They believe that since the facility is not yet operating, it should be required to adhere to the stricter effluent standards required for new facilities. They also believe that the Department should consider the harmful effects of viruses and bacteria on the marine environment and on the public health. Petitioners did not file their petitions for any improper purpose. They did not file their petitions for any frivolous purpose or to harass or to cause unnecessary delay or to increase Seanic's costs in obtaining an operating permit for its facility. They believed the language in the Department's notice of intent to issue the permit which advises substantially affected persons that they have a right to an administrative hearing and that the Department could change its preliminary agency action as an result of the administrative hearing process. They believe they are simply exercising a right that they have under the law.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered granting Seanic's application for an operating permit for its domestic wastewater treatment facility but denying Seanic's Motion for Attorney's Fees and Costs. DONE AND ENTERED this 13th day of November, 2000, in Tallahassee, Leon County, Florida. LINDA M. RIGOT Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 13th day of November, 2000. COPIES FURNISHED: Francine Ffolkes, Esquire Department of Environmental Protection 3900 Commonwealth Boulevard Mail Station 35 Tallahassee, Florida 32399-3000 Evan Goldenberg, Esquire White & Case, LLP First Union Financial Center 200 South Biscayne Boulevard Miami, Florida 33131-5309 Lee R. Rohe, Esquire Post Office Box 500252 Marathon, Florida 33050 Kathy C. Carter, Agency Clerk Department of Environmental Protection 3900 Commonwealth Boulevard Mail Station 35 Tallahassee, Florida 32399-0300 Teri L. Donaldson, General Counsel Department of Environmental Protection 3900 Commonwealth Boulevard Mail Station 35 Tallahassee, Florida 32399-0300
