15-001746 Atlantic Civil, Inc. vs. Florida Power And Light Company And Department Of Environmental Protection
 Status: Closed
Recommended Order on Monday, February 15, 2016.


View Dockets  
Summary: The Administrative Order issued by the Department is an unreasonable exercise of its enforcement authority because the Order does not require compliance with the law or specify a reasonable time for compliance.

1STATE OF FLORIDA

4DIVISION OF ADMINISTRATIVE HEARINGS

8ATLANTIC CIVIL, INC.,

11Petitioner,

12vs. Case No. 15 - 1746

18FLORIDA POWER AND LIGHT COMPANY

23AND DEPARTMENT OF ENVIRONMENTAL

27PROTECTION,

28Respondents.

29_______________________________/

30CITY OF MIAMI,

33Petit ioner,

35vs. Case No. 15 - 1747

41FLORIDA POWER AND LIGHT COMPANY

46AND DEPARTMENT OF ENVIRONMENTAL

50PROTECTION,

51Respondents.

52_______________________________/

53R E COMMENDED ORDER

57The final hearing in this case was held on November 2

68through 4 , 2015, in Miami, Florida, before Bram D. E. Canter,

79Administrative Law Judge of the Division of Administrative

87Hearings (ÐDOAHÑ).

89APPEARANCES

90For Petitioner Atlantic Civil, Inc. (ÐACIÑ) :

97Andrew J. Baumann, Esquire

101Rachael B. Santana, Esquire

105Lewis, Longman and Walker, P.A.

110515 North Flagler Drive, Suite 1500

116West Palm Beach, Florida 33401

121Edwin A. Steinmeyer, Esqu ire

126Lewis, Longman and Walker, P.A.

131315 South Calhoun Street, Suite 830

137Tallahassee, Florida 32301

140For Petitioner City of Miami:

145Kerri L. McNulty, Esquire

149Matthew S. Haber, Esquire

153Ruth A. Holmes, Esquire

157Nicholas Basco, Esquire

160City of Miami

163444 Southwest 2nd Avenue, Suite 945

169Miami, Florida 33130

172For Responde nt Florida Power and Light Company (ÐFPLÑ) :

182Gary V. Perko, Esquire

186Brooke E. Lewis, Esquire

190Hopping Green and Sams, P.A.

195119 South Monroe Street, Suite 300

201Tallahassee, Florida 32301

204Peter Cocotos, Esquire

207Florida Power and Light Company

212215 South Monroe Street, Suite 810

218Tallahassee, Florida 32301

221For Respondent Dep artment of Environmental Protection

228(ÐDEPÑ) :

230Sarah M. Doar, Esquire

234Benjamin Melnick, Esquire

237Department of Environmental Protection

241Mail Stop 35

2443900 Commonwealth Boulevard

247Tallahassee, Florida 32399

250STATEMENT OF THE ISSUE

254The issue to be determined in this case is whether the

265Administrative Order issued by DEP on December 23, 2014, is a

276reasonable exercise of its enforcement au thority.

283PRELIMINARY STATEMENT

285On December 23, 2014, DEP issued Administrative Order OGC

294No. 14 - 0741 ( Ðthe AOÑ) related to the cooling canal system at

308FPLÓs Turkey Point Power Plant in southeast Miami - Dade County .

320On February 9, 2015, p etitions for admin istrative hearing

330challenging the AO were filed by Tropical Audubon Society, Inc.,

340Blair Butterfield, Charles Munroe, and Jeffrey Mullins ; Miami -

349Dade County ; ACI ; and the City of Miami. After referral to

360DOAH, the four cases were consolidated for hearing .

369On April 16, 2015, Respondent FPL filed a motion to dismiss

380portions of the petitions on grounds that the petitions failed

390to allege sufficient grounds for standing . The motion was

400denied.

401On October 2, 2015, ACI filed a motion for leave to file an

414ame nded petition for administrative hearing. The motion was

423granted except with respect to the request in ACIÓs Amended

433Petition that the Administrative Law Judge recommend Ðadditional

441appropriate terms and criteria to halt and remediate the ongoing

451westward migration of saltwater intrusion in the Aquifer.Ñ

459O n October 9, 2015, Miami - Dade County filed a Notice of

472Voluntary Dismissal and Case No. 15 - 1745 was closed .

483FPL filed a Motion for Partial Summary Recommended Order or

493Alternatively for Dismissal of Peti tioner City of Miami ,

502claiming the City lacked standing . The motion was denied .

513On August 24, 2015, Petitioner Mullins filed a Notice of

523Voluntary Dismissal. On October 30, 2015, Petitioners Tropical

531Audubon Society , Butterfield, and Munroe filed an Agr eed Notice

541of Voluntary Dismissal without Prejudice . Accordingly, Case

549No. 15 - 1744 was closed.

555At the final hearing, Joint Exhibits J - 1, J - 2, J - 3, J - 5,

573J - 6, and J - 7 were admitted into evidence. DEP presented the

587testimony of Phillip Coram, a DEP Progr am Administrator who was

598accepted as an expert in environmental engineering ; Terri Bates,

607Division Director of Water Resources at the South Florida Water

617Management District (ÐSFWMDÑ), and Jefferson Giddings, a

624Principal Scientist at SFWMD who was accepted as an expert in

635groundwater modeling. D EP Exhibits D - 2, D - 6, D - 7, D - 10, D - 11,

655D - 13, D - 15, and D - 16 were admitted into evidence.

669FPL presented the testimony of Michael Sole, who is FPLÓs

679Vice President of Governmental Affairs ; Steven Scroggs, a Senior

688Di rector of Project Development for FPL who was accepted as an

700expert in power plant engineering, design and siting ; and

709Peter Andersen, who was accepted as an expert in groundwater

719hydrology and groundwater flow and transport modeling.

726FPL Exhibits FPL - 1 through FPL - 6, FPL - 9, FPL - 11, FPL - 14, FPL - 15,

747FPL - 25, and FPL - 26 were admitted into evidence.

758ACI presented the testimony of Steve Torcise, Jr., who is

768ACIÓs President ; Marc Harris, who is a DEP employee responsible

778for issuing NPDES permits for power pl ants ; William Nuttle,

788Ph.D., who was accepted as an expert in water salt budgets ; and

800Edward Swakon, who was accepted as an expert in groundwater

810resources and groundwater monitoring. ACI Exhibits ACI - 7, ACI -

8218, ACI - 9, ACI - 11, ACI - 31, ACI - 33, ACI - 34, ACI - 6 3, and ACI - 66

845were admitted into evidence.

849The City presented the testimony of Miguel Augustin, who is

859the CityÓs Controller ; and Mark Crisp, who was accepted as an

870expert in design and function of electrical generating

878facilities and cooling systems. Ci ty Exhibits 40 and 43 were

889admitted into evidence. The CityÓs motion for official

897recognition of its City Charter was denied, but a copy of the

909City Charter was accepted as a proffer.

916The five - volume t ranscript of the final hearing was filed

928with DOAH. The parties filed proposed recommended orders that

937were considered in the preparation of this Recommended Order.

946FINDINGS OF FACT

949Parties

9501 . FPL is a subsidiary of NextEra Energy. It is a

962regulated Florida Utility providing electric service to 4.7

970milli on customers in 35 counties.

9762. FPL owns and operates the Turkey Point Power Plant,

986which includes a cooling canal system (ÐCCSÑ) that is the

996subject of the AO at issue in this proceeding.

10053. DEP is the state agency charged with administering the

1015Florida Electric Power Plant Siting Act (ÐPPSAÑ), c hapter 403,

1025Part II , Florida Statutes . DEP has the power and the duty to

1038control and prohibit pollution of air and water in accordance

1048with the law and rules adopted and promulgated by it.

1058§ 403.061, Fla. Stat. (2015).

10634. ACI is a Florida corporation and the owner of 2,598

1075acres of land in southeast Miami - Dade County approximately four

1086miles west of the Turkey Point CCS. ACI is engaged in

1097agriculture and limerock mining on the land .

11055. ACI withdraws and uses water from the Biscayne Aquifer

1115pursuant to two SFWMD w ater u se p ermit s . ACI also has a Life -

1133of - the - Mine Environmental Resource Permit issued by DEP for its

1146mining activities. T he Life - of - the - Mine permit requires that

1160mining be terminated if monitoring d ata indicate the occurrence

1170of chloride concentrations greater than 250 milligrams per liter

1179(Ð mg/L Ñ) in the mine pit.

11866. The City of Miami is a municipal corporation located

1196about 25 - miles north of Turkey Point.

12047. The City purchases water from Miami - Da de County , which

1216withdraws the water from the Biscayne Aquifer.

1223Turkey Point

12258. FPLÓs Turkey Point property covers approximately 9,400

1234acres in unincorporated Miami - Dade County , along the coastline

1244adjacent to Biscayne Bay.

12489. Fi ve electrical generating units were built at Turkey

1258Point . Units 1 and 2 were built in the 1960s. Unit 2 ceased

1272operating in 2010. Units 3 and 4 are FloridaÓs first nuclear

1283generating units , which FPL constructed in the 1970s. Unit 5 is

1294a natural gas combined cycle generating unit brought into

1303service in 2007.

130610. Units 1 through 4 pre - date the PPSA and were not

1319certified when they were built . However, Units 3 and 4 were

1331certified pursuant to the PPSA in 2008 when FPL applied to

1342increase the ir power output, referred to as an Ð uprate. Ñ Unit 5

1356was built after the PPSA and was certified under the Act.

1367The CCS

136911. The Turkey Point CCS is a 5,900 - acre network of

1382canals , which provides a heat removal function for Units 1, 3 ,

1393and 4, and receives cooling tower blowdown from Unit 5.

140312. FPL constructed the CCS pursuant to satisfy a 1 971

1414consent judgment with the U.S. Department of Justice which

1423required FPL to terminate its direct discharges of heated water

1433into Biscayne Bay.

143613. The CCS is not a certified facility under the PPSA,

1447but it is an Ðassociated facility,Ñ which means it directly

1458supports the operation of the power plant.

146514. The CCS functions like a radiator, using evaporation,

1474convective heat transfer, and radiated heat loss to lower the

1484water temperature. When cooli ng water enters the plant, heat is

1495transferred to the water by flow - through heat exchangers and

1506then discharged to the ÐtopÑ or northeast corner of the CCS .

1518Circulating water pumps provide counter - clockwise flow of water

1528from the discharge point, down (so uth) through the 32

1538westernmost canals, across the southern end of the CCS, and then

1549back up the seven easternmost canals to the power plant intake .

156115. The full circuit through the CCS from discharge to

1571intake takes a bout 48 hours and results in a reduc tion in water

1585temperature of about 10 to 15 degrees Fahrenheit.

159316. The CCS canals are unlined, so they have a direct

1604connection to the groundwater. Makeup water for the CCS to

1614replace water lost by evaporation and seepage comes from process

1624water, rain fall, stormwater runoff, and groundwater

1631infiltration.

163217. When the CCS was first constructed, FPL and SFWMDÓs

1642predecessor, the Central and Southern Florida Flood Control

1650District, entered into an agreement to address the operation and

1660management of the CCS. The agreement has been updated from time

1671to time. The original agreement and updates called for

1680monitoring the potential impacts of the CCS.

168718. Operation of the CCS is also subject to a combined

1698state industrial wastewater permit and National Pol lution

1706Discharge Elimination System (ÐNPDESÑ) permit administered by

1713DEP. The industrial wastewater/NPDES permit is incorporated

1720into the Conditions of Certification.

1725Hypersaline Conditions

172719. The original salinity levels in the CCS were probably

1737the same as Biscayne Bay . However, because the salt in

1748saltwater is left behind when the water evaporates, and higher

1758water temperature cause s more evaporation, the water in the CCS

1769becomes saltier. Salinity levels in the CCS are also affected

1779by rainfall, a ir temperature, the volume of flow from the power

1791plant, and the rate of water circulation.

179820. In 2008, when FPL applied for certification of the

1808uprate of Units 3 and 4, it reported average salinity to be 50

1821to 60 Practical Salinity Units (ÐPSUÑ). Thi s is a ÐhypersalineÑ

1832condition, which means the salinity level is higher than is

1842typical for seawater, which is about 35 PSU.

185021. Higher salinity makes water denser, so the hypersaline

1859water in the CCS sinks beneath the canals and to the bottom of

1872the Bi scayne Aquifer, which is about 90 feet beneath the CCS.

1884At this depth, there is a confining layer that separates the

1895Biscayne Aquifer from the deeper Upper Floridan Aquifer. The

1904confining layer stops the downward movement of the hypersaline

1913ÐplumeÑ and i t spreads out in all directions.

192222. F PL estimated that the average daily loading of salt

1933moving from the CCS into the Biscayne Aquifer is 600,000 pounds

1945per day.

194723. In late 2013, salinity levels in the CCS began to

1958spike, reaching a high of 92 PSU in the summer of 2014. FPL

1971believes the salinity spikes in recent years are attributable in

1981part to lower than normal rainfall and to high er turbidity in

1993the CCS caused by algal blooms . Reductions in flow and

2004circulation during this period associated with t he retirement of

2014Unit 2 and the uprate of Units 3 and 4 could also have

2027contributed to i ncreased temperature s in the CCS, more

2037evaporation, and higher salinity .

204224. ACI presented evidence suggesting that the uprate of

2051Units 3 and 4 could be the primary c ause of recent, higher water

2065temperatures and higher salinity .

207025. The analyses that have been conducted to date are not

2081comprehensive or meticulous enough to eliminate reasonable

2088disagreement about the relative influence of the factors that

2097affect salin ity in the CCS.

210326. FPL has taken action to reduce salinity within the CCS

2114by adding stormwater from the L - 31E C anal (pursuant to emergency

2127orders), adding water from shallow saline water wells , and

2136remov ing sediment build - up in the canals to improve flo w . Th ese

2152actions , combined with more normal rainfall , have decreased

2160salinity levels in the CCS to about 45 PSU at the time of the

2174final hearing .

2177Saltwater Intrusion

217927. Historical data show that when the CCS was constructed

2189in the 1970s, saltwater had already intruded inland along the

2199coast due to water withdrawals, drainage and flood control

2208structures, and other human activities.

221328. The ÐfrontÑ or westernmost line of saltwater intrusion

2222is referred to as the saline water interface. More

2231specifi cally, the saline water interface is where groundwater

2240with total dissolved solids (ÐTDSÑ) of 10,000 mg/L or greater

2251meets groundwater with a lower chloride concentration. DEP

2259classifies groundwater with a TDS concentration less than 10,000

2269mg/L as G - II g roundwater, and groundwater with a TDS

2281concentration equal to or greater than 10,000 mg/L as G - III

2294groundwater, so the saline water interface can be described as

2304the interface between Class G - II groundwater and Class G - III

2317groundwater.

231829. In the 1980s, the saline water interface was just west

2329of the interceptor ditch, which runs generally along the western

2339boundary of the CCS. The interceptor ditch was installed when

2349the CCS was first constructed as a means to prevent saline

2360waters from the CCS from mov ing west of the ditch. Now, the

2373saline water interface is four or five miles west of the CCS ,

2385and it is still moving west.

239130. The groundwater that comes from the CCS can be

2401identified by its tritium content because tritium occurs in

2410greater concentrati ons in CCS process water than occurs

2419naturally in groundwater. CCS water has been detected four

2428miles west of the CCS.

243331. Saline waters from the CCS have been detected

2442northwest of the CCS, moving in the direction of Miami - Dade

2454CountyÓs public water su pply wellfields.

246032. The hypersaline plume from the CCS is pushing the

2470saline water interface further west.

247533. Respondents identified factors that contribute d to the

2484saltwater intrusion that occurred before the CCS was

2492constructed . However, while saltw ater intrusion has stabilized

2501in other parts of Miami - Dade County , it continues to worsen in

2514the area west of the CCS .

252134. Respondents made no effort to show how any factor

2531other than the CCS is currently c ontributing to the continuing

2542westward movement o f the sal ine water interface in this area of

2555the County.

255735. The preponderance of the record evidence indicates the

2566CCS is the major contributing cause of the continuing westward

2576movement of the sal ine water interface.

258336. F resh groundwater in the Bisca yne Aquifer in southeast

2594Miami - Dade County is an important natural resource that supports

2605marsh wetland communities and is utilized by numerous existing

2614legal water uses including irrigation, domestic self - supply , and

2624public water supply. The Biscayne Aqu ifer is the main source of

2636potable water in Miami - Dade County and is designated by the

2648federal government as a sole source aquifer under the Safe

2658Drinking Water Act.

266137. Saltwater intrusion into the area west of the CCS is

2672reducing the amount of fresh gro undwater in the Biscayne Aquifer

2683available for natural resources and water uses.

2690Water Quality Violations

269338. At the final hearing, a DEP administrator testified

2702that DEP was unable to identify a specific violation of state

2713groundwater o r surface water quality standards attributable to

2722the CCS , but DEPÓs position cannot be reconciled with the

2732undisputed evidence that the CCS has a groundwater discharge of

2742hypersaline water that is contributing to saltwater intrusion.

2750Florida Administrative Code Rule 62 - 520.400, entitled ÐMinimum

2759Criteria for Ground Water,Ñ prohibits a discharge in

2768concentrations that Ðimpair the reasonable and beneficial use of

2777adjacent waters.Ñ

277939 . Saltwater intrusion into the area west of the CCS is

2791impairing the reasonable and benefi cial use of adjacent G - II

2803groundwater and, therefore , is a violation of the minimum

2812criteria for groundwater in rule 62 - 520.400.

28204 0 . In addition, sodium levels detected in monitoring

2830wells west of the CCS and beyond FPLÓs zone of discharge are

2842many times greater than the applicable G - II groundwater standard

2853for sodium. The preponderance of the evidence shows that the

2863CCS is contributing to a violation of the sodium standard.

2873Agency Response

28754 1 . The 2008 Conditions of Certification included a

2885Section X, entitled ÐSurface Water, Ground Water, Ecological

2893Monitoring,Ñ which, among other things, required FPL and SFWMD

2903to execute a Fifth Supplemental Agreement regarding the

2911operation and management of the CCS. New monitoring was

2920required and FPL was to Ðdete ct changes in the quantity and

2932quality of surface and ground water over time due to the cooling

2944canal system.Ñ

29464 2 . Section X .D. of the Condition s of Certification

2958provides in pertinent part:

2962If the DEP in consultation with SFWMD and

2970[Miami - Dade County De partment of

2977Environmental Resources Management]

2980determines that the pre - and post - Uprate

2989monitoring data: is insufficient to

2994evaluate changes as a result of this

3001project; indicates harm or potential harm to

3008the waters of the State including ecological

3015res ources; exceeds State or County water

3022quality standards; or is inconsistent with

3028the goals and objectives of the CERP

3035Biscayne Bay Coastal Wetlands Project, then

3041additional measures, including enhanced

3045monitoring and/or modeling, shall be

3050required to evalu ate or to abate such

3058impacts. Additional measures include but

3063are not limited to:

3067* * *

30703. operational changes in the cooling canal

3077system to reduce any such impacts;

30834 3 . D E P determined that the monitoring data indicates harm

3096to waters of the Stat e because of the contribution of CCS waters

3109to westward movement of the saline water interface. Under the

3119procedures established in the Conditions of Certification, this

3127determination triggered the requirement for Ðadditional

3133measuresÑ to require FPL to Ð evaluate or abateÑ the impacts.

31444 4 . Pursuant to the Conditions of Certification, a Fifth

3155Supplemental Agreement was executed by FPL and SFWMD, which ,

3164among other things, requires FPL to operate the interceptor

3173ditch to restrict movement of saline water fr om the CCS westward

3185of Levee 31E Ð to those amounts which would occur without the

3197existence of the cooling canal system.Ñ Th e agreement provides

3207that if the District determines that the interceptor ditch is

3217in effective, FPL and the District shall consult t o identify

3228measures to Ð mitigate, abate or remediate Ñ impacts from the CCS

3240and to promptly implement those approved measures.

32474 5 . SFWMD determined that the interceptor ditch is

3257ineffective in preventing saline waters from the CCS in deeper

3267zones of the Bi scayne Aquifer from moving west of the ditch ,

3279which triggered the requirement of the Fifth Supplemental

3287Agreement for FPL to mitigate, abate , or remediate the impacts .

32984 6 . Following consultation between DEP and SFWMD, the

3308agencies decided that, rather tha n both agencies responding to

3318address the harm caused by the CCS , DEP would take action . DEP

3331then issued the AO for that purpose.

3338The AO

33404 7 . The AO begins with 36 Findings of Fact, many of which

3354are undisputed background facts about the history of Turke y

3364Point and the CCS.

33684 8 . Also undisputed is the statement in Finding of Fact 25

3381that Ðthe CCS is one of the contributing factors in the western

3393migration of CCS saline WaterÑ and Ðthe western migration of the

3404saline water must be abated to prevent further harm to the

3415waters of the state.Ñ

341949 . Findings of Fact 16 - 19 and 25 indicate there is

3432insufficient information to identify the causes and relative

3440contributions of factors affecting saltwater intrusion in the

3448area west of the CCS. However, a s found abov e, the

3460preponderance of the record evidence indicates the CCS is the

3470major contributing cause of the continuing westward movement of

3479the saltwater interface.

34825 0 . In the ÐOrderedÑ section of the AO, FPL is required to

3496submit to DEP for approval a detailed CCS Salinity Management

3506Plan. The AO explains that Ð[t]he primary goal of the

3516Management Plan shall be to reduce the hypersalinity of the CCS

3527to abate westward movement of CCS groundwater into class G - II

3539(<10,000 mg/l="" tds)="" groundwaters="" of="" the="">

35405 1 . T he goal of reducing hypersalinity of the CCS to abate

3554westward movement of CCS groundwater into class G - II

3564groundwaters is to be demonstrated by two success criteria: (1)

3574reducing and maintaining the average annual salinity of the CCS

3584at a practical sal inity of 34 within 4 years of the effective

3597date of the Salinity Management Plan; and (2) decreasing

3606salinity trends in four monitoring wells located near the CCS.

36165 2 . Although the AO states that FPLÓs proposal to withdraw

362814 mgd from the Upper Florida Aq uifer and discharge it into the

3641CCS might accomplish the goal of the AO, the AO does not require

3654implementation of this particular proposal. It is just one of

3664the options that could be proposed by FPL in its Salinity

3675Management Plan. 1/

36785 3 . I f the succes s criteria in the AO are achieved,

3692hypersaline water will no longer sink beneath the CCS, the rate

3703of saltwater intrusion will be slowed, and the existing

3712hypersaline plume would begin to Ðfreshen .Ñ

3719Petitioners Ó Objections

37225 4 . ACI and the City object to the AO because the success

3736criteria do not prevent further harm to water resources.

3745Maintaining salinity in the CCS to 34 PSU w ill not halt the

3758western movement of the saline water interface.

37655 5 . They also contend the AO is vague, forecloses salinity

3777m anagement options that could be e ffective, and authorizes FPLÓs

3788continued violation of water quality standards.

37945 6 . For ACI, it doesnÓt matter when the saline water

3806interface will reach its property because, advancing in front of

3816the saltwater interface ( 10,000 mg/L TDS) is a line of less

3829salty water that is still Ðtoo saltyÑ for ACIÓs mining

3839operations. Years before the saline water interface reaches

3847ACIÓs property, ACIÓs mining operations will be disrupted by the

3857arrival of groundwater with a chloride c oncentration at or above

3868250 mg/L. 2/

3871CONCLUSIONS OF LAW

3874Standing

38755 7 . To establish standing, a party must present evidence

3886to show that its substantial interests could be affected. St.

3896Johns Riverkeeper, Inc. v. St. Johns River Water Mgmt. Dist. , 54

3907So. 3 d 1051, 1054 (Fla 5th DCA 2011).

391658 . The City claims standing based on the doctrine of

3927parens patriae , which generally recognizes an inherent authority

3935of the state to protect persons who are unable to act on their

3948own behalf and there is a sovereign inte rest involved . See

3960Engle v. Liggett Group, Inc. , 945 So. 2d 1246 (Fla. 2006) . In

3973E ngle , the Court stated Ðit is clear that a state may sue to

3987protect its citizens against the pollution of the air over its

3998territory; or interstate waters in which the stat e has rights.Ñ

4009Id. at 1260.

401259. The City cites no case in which the City or any other

4025local government was held to have standing under the doctrine

4035parens patriae to participate in a proceeding like the present

4045case. The Administrative Law Judge decline s the CityÓs

4054invitation to be the first forum in Florida to extend the

4065doctrine of parens patriae to allow a municipality to intervene

4075in a DEP enforcement action.

40806 0 . The City holds no water use permit and, generally, an

4093entity has no water right s unless it has obtained a permit for

4106the water or is using water pursuant to a statutory exemption

4117from permitting. See Tequesta v. Jupiter Inlet Corp. , 371 So.

41272d 663 (Fla. 1979) . However, in Osceola County v. St. Johns

4139River Water M anagement Dist rict , 486 So. 2d 616 (Fla. 5th DCA

41521986 ) , it was held that Osceola County had standing based of the

4165potential effect of the decision on the CountyÓs Ð various

4175statutory duties and responsibilities with respect to planning

4183for water management and conservation .Ñ See als o South Fla.

4194Water Mgmt. Dist. v. City of St. Cloud , 550 So. 2d 551 (Fla. 5th

4208DCA 1989).

42106 1 . All local governments have statutory duties and

4220responsibilities with respect to planning for water management

4228and conservation under section 163.3177(6)(c), Flor ida Statutes.

4236Therefore, based on the precedent established in Osceola County

4245and City of St. Cloud , supra , it is concluded the City of Miami

4258has standing in this proceeding.

42636 2 . ACI and the City presented competent evidence that

4274their substantial intere sts could be affected.

4281The Nature of the Proceeding

42866 3 . The parties debated the nature of the proceeding that

4298was initiated by the AO. The AO begins with a statement that it

4311is being issued under the authority of sections 403.061(8).

4320Section 403.061(8) is the authority to issue Ðsuch orders as are

4331necessary to effectuate the control of air and water pollution

4341and enforce the same by all appropriate administrative and

4350judicial proceedings.Ñ

43526 4 . Respondents contend t he AO resolv e s a Ð violation Ñ of

4368Section X.D. of the Conditions of Certification, but Section

4377X.D. has not been violated. A ÐviolationÑ involves doing

4386something that is prohibited or failing to do something that is

4397required. FPL has done nothing prohibited by Section X.D. and

4407has not failed to do something required by Section X.D. The

4418section is directed to DEP, which is required to determine

4428whether harm has been caused, consult with other agencies, and

4438then require additional measures to address the harm.

444665. The Conditions of Certification do not say what

4455procedure DEP should use. DEP admitted the AO is not a typical

4467a dministrative o rder and referred to it as a Ðhybrid Ñ between an

4481administrative order and a consent order. Still, Respondents

4489also describe the AO as a ÐpureÑ enforcement act ion .

45006 6 . The AO lacks the most fundamental element of an

4512enforcement action: charges. An agency enforcement action

4519charges a party with one or more violations of law, which the

4531party has the right to challenge and attempt to refute. DEP did

4543not charge FPL with violating the minimum criteria for

4552groundwater, with violating the conditions of its industrial

4560wastewater permit, or with violating the primary groundwater

4568standard for sodium. FPL did not come to the final hearing to

4580defend against these charge s.

45856 7 . DEP cites some of its final orders that involved

4597consent orders, but the AO is not a consent order.

460768 . ACI and the City are wrong in characterizing the AO as

4620a permit. The Salinity Management Plan required by the AO could

4631possibly lead to a perm it or a modification to the Conditions of

4644Certification, but the AOÓs requirement for a plan is not an

4655authorization for FPL to change any facilities or operations at

4665Turkey Point. For comparison, SFWMD issued a water use permit

4675to FPL (the subject of DOA H Case No. 15 - 3845) to withdraw water

4690from the L - 31E Canal and discharge it into the CCS to lower

4704water temperature and salinity. A permit was necessary because

4713a water withdraw was authorized. The AO does not authorize any

4724action.

472569 . S ection 403.088(2 )(e) gives DEP enforcement authority

4735suited for the circumstances associated with the CCS discharge.

4744This statute provides that, if a discharge will not meet permit

4755conditions or applicable statutes and rules, DEP Ð may issue,

4765renew, revise, or reissue the operation permit Ñ when one of six

4777specified criteria is satis fied . The criteria pertain to

4787actions to come into compliance or to demonstrate why non -

4798compliance is justified. However, DEP did not choose this

4807approach.

4808The Meaning of the Term ÐAbateÑ

48147 0 . DEP defines the term ÐabateÑ in Paragraph 37 of the AO

4828as Ð to reduce in amount, degree or intensity; lessen; diminishÑ

4839and believes it is consistent with the meaning of the term in

4851Section X.D. of the Conditions of Certification. ACI and the

4861City dispute this interpretation and contend the term ÐabateÑ

4870means to stop or terminate. However, th is dispute is largely

4881moot because the AO states that Ð[f]or the purposes of this

4892OrderÑ the term ÐabateÑ means to reduce. With this caveat, the

4903term ÐabateÑ in the A O can have a different meaning than it has

4917in the Conditions of Certification. However, the following

4925analysis of the law was undertaken to show that the term

4936Ðabate,Ñ as used in the Conditions of Certification, does not

4947mean to reduce.

49507 1 . T he term Ðaba teÑ is not defined in Section X.D. or

4965elsewhere in the Conditions of Certification . Under Section

4974III, the following statement appears:

4979The meaning of terms used herein shall be

4987governed by the definitions contained in

4993chapter 373 and 403, Florida Statute s, and

5001any regulation adopted pursuant thereto. In

5007the event of any dispute over the meaning of

5016a term used in these conditions which is not

5025defined in such statutes or regulations,

5031such dispute shall be resolved by reference

5038to the most relevant definiti ons contained

5045in any other relevant state or federal

5052statute or regulation or, in the alternative

5059by the use of the commonly accepted meaning

5067as determined by the Department.

50727 2 . There is no definition of ÐabateÑ in chapter 373 or

5085chapter 403, or in any regulation adopted pursuant thereto. DEP

5095made no showing about the use of the term in a relevant statute

5108or regulation of the Federal Government or another state. DEP

5118chose to use a dictionary definition of the term Ðabate.Ñ

51287 3 . Respondents made no effo rt to show the definition in

5141the AO is the Ðmost commonly accepted meaningÑ of the term. The

5153most commonly accepted meaning is a matter subject to objective

5163determination. DEP cannot simply deem a definition to be the

5173most commonly accepted meaning if it is not.

51817 4 . In WebsterÓs New Collegiate Dictionary , the first

5191definition entry for the word ÐabateÑ is Ðto put an end to.Ñ

5203The second entry is similar to the definition in the AO; that

5215is, to reduce or lessen. Most suggested synonyms are associated

5225wit h the meaning to reduce or lessen. See e.g. , Thesaurus.com

52367 5 . However, the term s ÐabateÑ and ÐabatementÑ are

5247regularly used in environmental law. Therefore, choosing one of

5256the meanings of ÐabateÑ outside the environmental context is

5265unnecessary and in appropriate.

52697 6 . Several environmental statutes use the phrase Ðprevent

5279or abate.Ñ This usage is not free of ambiguity, but it is more

5292likely to mean Ðprevent or, if it is already occurring, then

5303stop.Ñ See e.g. , §§ 376.308, 403.061(9) 403.081(4), and

53114 03.191(1), Fla Stat.

53157 7 . Section 373.433, entitled ÐAbatement,Ñ refers to

5325injunctions if certain water control structures are violating

5333DEP or water management district standards. The meaning of

5342ÐabatementÑ in this section is clearly to stop the violatio n,

5353not merely to diminish it.

53587 8 . Section 376.12(1) refers to Ðabatement of a prohibited

5369discharge,Ñ which means to stop the discharge.

537779 . Sections 376.09 and 376.305, pertaining to the removal

5387of prohibited discharges, states that polluters shall

5394immed iately Ðcontain, remove, and abate the discharge,Ñ which is

5405not free of ambiguity regarding the intended meaning of the word

5416Ðabate.Ñ There are a few other statutes with this kind of

5427ambiguous wording.

54298 0 . Section 403.4154(3) authorizes DEP to Ðabate or

5439substantially reduceÑ hazards caused by phosphogypsum stacks.

5446In this section, the term abate is clearly intended to mean to

5458stop and to be distinguished from Ðreduce.Ñ

54658 1 . Section 403.709 refers to an Ðabatement actionÑ

5475brought by DEP to bring an illega l waste tire site into

5487compliance. In this context, the word ÐabatementÑ means to stop

5497the violation of waste tire regulations.

55038 2 . Section 403.726 is entitled ÐAbatement of imminent

5513hazard caused by hazardous substanceÑ and includes a similar

5522statement that DEP Ðshall take and any action necessary to abate

5533or substantially reduce any imminent hazard.Ñ In this section,

5542the term ÐabateÑ means to stop.

55488 3 . Section 403.727(1)(g) refers to statutory remedies

5557Ðavailable to the department to abate violations of this act.Ñ

5567In this context, the term ÐabateÑ means to stop.

55768 4 . Section 376.11(6) provides for payment of moneys from

5587the Florida Coastal Protection Trust Fund for Ðthe abatement of

5597any other potential pollution hazards,Ñ which means to end the

5608hazard , not to diminish it.

56138 5 . Finally, article II, section 7(a) of the Florida

5624Constitution provides:

5626It shall be the policy of the state to

5635conserve and protect its natural resources

5641and scenic beauty. Adequate provision shall

5647be made by law for the abateme nt of air and

5658water pollution and of excessive and

5664unnecessary noise and for the conservation

5670and protection of natural resources.

5675It is likely that the word ÐabateÑ in s ection 7(a) was intended

5688to mean to stop pollution. A state policy to only reduce

5699po llution does not sound very ambitious.

57068 6 . When these uses of the term ÐabateÑ or ÐabatementÑ are

5719objectively considered, it is clear that the most commonly

5728accepted meaning for the term in Florida environmental laws is

5738to stop, terminate, or end.

57438 7 . It is logical that a statute granting enforcement

5754power to DEP would grant full power to stop a violation or

5766harmful activity, rather than only the power to reduce the

5776violation or activity. Therefore, even in the statutes cited

5785above, where the use of the term ÐabateÑ did not make its

5797meaning clear, it is likely that the intended meaning was to

5808stop.

580988. The use of the term ÐabateÑ or similar terms in

5820Florida statutes has not been interpreted by DEP or any court to

5832mean DEP must always require complete res toration of the harm

5843caused or full compliance with a standard. DEP retains

5852enforcement discretion. It is a separate question whether the

5861circumstances in any case provide a reasonable basis for DEP to

5872require less than complete restoration or full compl iance.

58818 9 . If the term ÐabateÑ in Section X.D. was intended by

5894the Siting Board to mean to lessen or diminish, that would mean

5906the Siting Board, without explanation, meant to prevent DEP from

5916exercising its full range of enforcement authority with respect

5925to harm caused by the CCS. That is an unreasonable

5935interpretation.

5936Reasonable Enforcement Discretion

59399 0 . B ecause the AO purports to be an enforcement action,

5952the applicable standard of review in this case is whether the

5963action taken by the Department is a reasonable exercise of its

5974enforcement discretion.

59769 1 . ACI and the City have the burden to prove by a

5990preponderance of the evidence that the AO is not a reasonable

6001exercise of enforcement discretion. They met their burden.

60099 2 . The AO is not a reasona ble exercise of DEPÓs

6022enforcement discretion because FPL has not been charged with

6031violations of law and afforded due process to address the

6041charges through litigation, consent order, or settlement.

60489 3 . The AO is not a reasonable exercise of DEPÓs

6060enforce ment discretion because, without demonstrating a

6067reasonable basis for doing so, DEP does not require FPL to come

6079into compliance with standards or specify a reasonable time for

6089FPL to come into compliance.

60949 4 . The AO is an unreasonable exercise of DEPÓs

6105e nforcement discretion because the success criteria are

6113inadequate to accomplish DEPÓs stated purposes as explained

6121below .

6123a. Maintaining Salinity at 34 PSU in the CCS

6132i. Requiring FPL to maintain salinity in the CCS at 34 PSU

6144is based on 34 PSU being the average salinity of Biscayne Bay .

6157However, in the context of addressing existing harm to the

6167Biscayne Aquifer, it could be an unnecessary impediment. It was

6177not shown why it is important not to allow the water in the CCS

6191to become fresher than Biscayne Bay.

6197ii. The evidence presented shows that, the fresher the

6206water in the CCS, the greater would be the freshening of the

6218Biscayne Aquifer beneath and west of the CCS. Perhaps FPL would

6229be able to explain in the Salinity Management Plan why economic,

6240tech nological, ecological, or other considerations support the

6248reasonableness of going no fresher than 34 PSU. However this

6258record does not show the reasonableness of restricting FPLÓs

6267options in this manner. FPL should be free to consider and

6278propose option s to lower the salinity in the CCS even further if

6291it is practicable and could achieve greater benefits.

6299iii. Requiring salinity to be maintained at 34 PSU is also

6310unreasonable because it forecloses all options that could

6318achieve the goal of the AO to aba te westward movement of CCS

6331groundwater into Class G - II groundwater without lowering the

6341salinity of CCS water or not lowering it as much. Respondents

6352did not explain in the record why FPL should be foreclosed from

6364considering any option that achieves the goal of reducing the

6374westward movement of CCS groundwater.

6379b. Decreasing Salinity Trends in Nearby Wells

6386i. Another success criterion in the AO is for FPL to

6397demonstrate Ðdecreasing salinity trendsÑ in four monitoring

6404wells near the CCS , but the decreas ing trend is not quantified.

6416ii. The wording in the AO allows for achievement of this

6427success criterion even with decreasing trends that are smaller

6436than was predicted by the computer modeling upon which DEP

6446relied . If decreasing salinity trends in wells near the CCS are

6458smaller, then there would likely be less slowing of the westward

6469movement of the sal ine water interface than was predicted by the

6481modeling, and one of DEPÓs stated purposes would be thwarted.

6491iii. In addition, by only using wells near th e CCS, the AO

6504allows for the possibility that salinity trends near the CCS

6514decrease as predicted by the computer modeling, but the

6523predicted benefits at distance do not occur.

6530c . FPLÓs Contribution to the Harm

6537In this proceeding, DEP never stated that it had made a

6548determination that FPL should not be required to terminate its

6558contribution to the westward movement of the saline water

6567interface. Instead, DEP stated that FPLÓs contribution had not

6576been determined. That was the reason given for the enforcem ent

6587approach taken by DEP. However, the AO does not require FPL to

6599determine its contribution.

66029 5 . All of the infirmities in the AO described above c an

6616be cured by amending the AO to delete the proposed success

6627criteria and require FPL to submit a Salini ty Management Plan

6638that includes an analysis of the factors contributing to the

6648western movement of saltier groundwater and options that could

6657eliminate the CCSÓs contribution. In this amended form, the AO

6667would not be an enforcement instrument , but would achieve DEPÓs

6677apparent intent to requir e further analysis of the problem and

6688its solution .

66919 6 . PetitionersÓ claim that DEP should take immediate

6701enforcement action to stop FPLÓs current violations and prevent

6710further harm is a claim that must be brought in a proceeding

6722under section 403.412, section 120.69, or other law which allows

6732for redress of injuries when DEP has chosen not to exercise its

6744enforcement authority.

6746RECOMMENDATION

6747Based on the foregoing Findings of Fact and Conclusions of

6757Law it is

6760R ECOMMENDED that the Department of Environmental Protection

6768rescind the AO or amend it as described above.

6777DONE AND ENTERED this 15th day of February , 2016 , in

6787Tallahassee, Leon County, Florida.

6791S

6792BRAM D. E. CANTER

6796Adminis trative Law Judge

6800Division of Administrative Hearings

6804The DeSoto Building

68071230 Apalachee Parkway

6810Tallahassee, Florida 32399 - 3060

6815(850) 488 - 9675

6819Fax Filing (850) 921 - 6847

6825www.doah.state.fl.us

6826Filed with the Clerk of the

6832Division of Administrative Hearings

6836this 15th day of February , 2016 .

6843ENDNOTE S

68451/ FPL applied to modify the Conditions of Certification to

6855authorize FPL to withdraw 14 mgd from the Upper Floridan Aquifer

6866for use in the CCS. ACI challenged the proposed modification in

6877a separate DOAH pro ceeding, a hearing was held, a Recommended

6888Order was issued, and the matter is now pending before the

6899Govern or and Cabinet in their capacity as the State Siting

6910Board.

69112/ TDS and chloride concentration are not equivalent, but can be

6922considered roughly eq uivalent for the purpose of this finding .

6933COPIES FURNISHED:

6935Peter Cocotos, Esquire

6938Florida Power and Light Company

6943215 South Monroe Street, Suite 810

6949Tallahassee, Florida 32301

6952(eServed)

6953Sarah M. Doar, Esquire

6957Benjamin Melnick, Esquire

6960Department o f Environmental Protection

6965Mail Stop 35

69683900 Commonwealth Boulevard

6971Tallahassee, Florida 32399

6974(eServed)

6975Gary V. Perko, Esquire

6979Brooke E. Lewis, Esquire

6983Hopping Green and Sams, P.A.

6988119 South Monroe Street , Suite 300

6994Tallahassee, Florida 32301

6997(eServed)

6998Andrew J. Baumann, Esquire

7002Rachael B. Santana, Esquire

7006Lewis, Longman and Walker, P.A.

7011515 North Flagler Drive , Suite 1500

7017West Palm Beach, Florida 33401

7022(eServed)

7023Edwin A. Steinmeyer, Esquire

7027Steinmeyer Fiveash LLP

7030310 West College Avenue

7034Tallahassee, Florida 32301

7037(eServed)

7038Kerri L. McNulty, Esquire

7042Matthew S. Haber , Esquire

7046Ruth A. Holmes, Esquire

7050Nicholas Basco, Esquire

7053City of Miami

7056444 S outhwest 2nd Avenue, Suite 945

7063Miami, Florida 33130

7066(eServed)

7067Jonathan P. Steverson, Secretary

7071Department o f Environmental Protection

7076Mail Stop 35

70793900 Commonwealth Boulevard

7082Tallahassee, Florida 32399

7085(eServed)

7086Craig Varn, General Counsel

7090Department of Environmental Protection

7094Mail Stop 35

70973900 Commonwealth Boulevard

7100Tallahassee, Florida 32399

7103(eServed)

7104Lea Crandall, Agency Clerk

7108Department of Environmental Protection

7112Mail Stop 35

71153900 Commonwealth Boulevard

7118Tallahassee, Florida 32399

7121(eServed)

7122NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

7128All parties have the right to submit written exceptions within

713815 days from the date of this Recommended Order. Any exceptions

7149to this Recommended Order should be filed with the agency that

7160will issue the Final Order in this case.

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Date
Proceedings
PDF:
Date: 05/09/2016
Proceedings: Petitioner/Appellant Atlantic Civil, Inc.'s Directions to Clerk filed.
PDF:
Date: 05/02/2016
Proceedings: Acknowledgment of New Case, DCA Case No. 3D16-978 filed.
PDF:
Date: 04/21/2016
Proceedings: Agency Final Order
PDF:
Date: 04/21/2016
Proceedings: Petitioner Atlantic Civil, Inc.'s Response to State of Florida Department of Environmental Protection's Exceptions to the Recommended Order filed.
PDF:
Date: 04/21/2016
Proceedings: Petitioner Atlantic Civil, Inc.'s Response to Florida Power & Light Company's Exceptions to the Recommended Order filed.
PDF:
Date: 04/21/2016
Proceedings: Florida Department of Environmental Protection's Response to Exception Submitted bye the City of Miami filed.
PDF:
Date: 04/21/2016
Proceedings: The City of Miami's Response to FDEP's and FPL's Exceptions to the Recommended Order filed.
PDF:
Date: 04/21/2016
Proceedings: Florida Department of Environmental Protection's Exceptions to Recommended Order filed.
PDF:
Date: 04/21/2016
Proceedings: The City of Miami's Exceptions to the Recommended Order filed.
PDF:
Date: 04/21/2016
Proceedings: FPL's Exceptions to the Recommended Order filed.
PDF:
Date: 04/21/2016
Proceedings: Agency Final Order filed.
PDF:
Date: 03/11/2016
Proceedings: Petitioner Atlantic Civil, Inc's Response to Florida Power and Light Company's Exceptions to the Recommended Order filed.
PDF:
Date: 03/11/2016
Proceedings: Petitioner Atlantic Civil, Inc.'s Response to State of Florida Department of Environmental Protection's Exceptions to the Recommended Order filed.
PDF:
Date: 03/11/2016
Proceedings: The City of Miami's Response to FDEP's and FPL's Exceptions to the Recommended Order (filed in Case No. 15-001747).
PDF:
Date: 03/01/2016
Proceedings: The City of Miami's Exception to the Recommended Order (filed in Case No. 15-001747).
PDF:
Date: 02/15/2016
Proceedings: Recommended Order
PDF:
Date: 02/15/2016
Proceedings: Recommended Order cover letter identifying the hearing record referred to the Agency.
PDF:
Date: 02/15/2016
Proceedings: Recommended Order (hearing held November 2-4, 2015). CASE CLOSED.
PDF:
Date: 12/11/2015
Proceedings: Petitioner Atlantic Civil, Inc.'s Proposed Recommended Order filed.
PDF:
Date: 12/11/2015
Proceedings: Respondents' Notice of Filing Joint Proposed Recommended Order filed.
PDF:
Date: 12/11/2015
Proceedings: The City of Miami's Proposed Recommended Order (filed in Case No. 15-001747).
Date: 11/18/2015
Proceedings: Transcript of Proceedings (not available for viewing) filed.
PDF:
Date: 11/16/2015
Proceedings: Order Closing File and Relinquishing Jurisdiction (DOAH Case No. 15-1744 is Closed).
Date: 11/06/2015
Proceedings: Hearing Exhibits filed (exhibits not available for viewing).
Date: 11/02/2015
Proceedings: CASE STATUS: Hearing Held.
PDF:
Date: 11/02/2015
Proceedings: Non-party Witness Virginia Walsh's Motion to Quash Trial Subpoena and Memorandum of Law (filed in Case No. 15-001747).
PDF:
Date: 11/02/2015
Proceedings: Undeliverable envelope returned from the Post Office.
PDF:
Date: 11/02/2015
Proceedings: Petitioner, Atlantic Civil, Inc.'s Pre-hearing Memorandum filed.
PDF:
Date: 10/30/2015
Proceedings: Petitioner, Atlantic Civil, Inc.'s Motion for Official Recognition of FDEP Legal Opinion Dated June 5, 2015, filed.
PDF:
Date: 10/30/2015
Proceedings: Agreed Notice of Voluntary Dismissal without Prejudice (Tropical Audubon Socirty, Inc.,m Blair Butterfield, and Charles Munroe) filed.
PDF:
Date: 10/30/2015
Proceedings: The City of Miami's Motion for Official Recognition (filed in Case No. 15-001747).
PDF:
Date: 10/30/2015
Proceedings: Order.
PDF:
Date: 10/30/2015
Proceedings: Order.
PDF:
Date: 10/29/2015
Proceedings: Notice of Appearance (Nicolas Basco) (filed in Case No. 15-001747).
PDF:
Date: 10/29/2015
Proceedings: Notice of Appearance (Kerri McNulty) (filed in Case No. 15-001747).
PDF:
Date: 10/29/2015
Proceedings: The City of Miami's Opposition to FPL's Motion for Partial Summary Recommended Order Alternatively, for Dismissal of Petitioner, The City of Miami (filed in Case No. 15-001747).
PDF:
Date: 10/29/2015
Proceedings: Atlantic Civil's Objection to Notice of Duces Tecum to William Nuttle filed.
PDF:
Date: 10/29/2015
Proceedings: FPL's Response in Opposition to City of Miami's Amended Motion for Reconsideration filed.
PDF:
Date: 10/29/2015
Proceedings: The City of Miami's Amended Motion for Reconsideration (filed in Case No. 15-001747).
PDF:
Date: 10/28/2015
Proceedings: Notice of Taking Telephonic Deposition Duces Tecum (of William Nuttle) filed.
PDF:
Date: 10/28/2015
Proceedings: Depatment's Notice of Filing Joint Exhibit List and Objections filed.
PDF:
Date: 10/28/2015
Proceedings: The City of Miami's Motion for Reconsideration filed.
PDF:
Date: 10/27/2015
Proceedings: Corrected Order.
PDF:
Date: 10/27/2015
Proceedings: Order.
PDF:
Date: 10/27/2015
Proceedings: The City of Miami's Response in Opposition to FPL's Motion to Exclude Testimony (filed in Case No. 15-001747).
PDF:
Date: 10/27/2015
Proceedings: Joint Prehearing Stipulation filed.
PDF:
Date: 10/26/2015
Proceedings: Order (response to motion to dismiss City of Miami due on October 29, 2015).
PDF:
Date: 10/26/2015
Proceedings: Order (granting joint motion for witness to appear via video conference).
PDF:
Date: 10/23/2015
Proceedings: Department of Environmental Protection's Motion for Extension of Time to File Joint Prehearing Stipulation filed.
PDF:
Date: 10/23/2015
Proceedings: Joint Motion for Witnesses to Appear Via Video Conference filed.
PDF:
Date: 10/23/2015
Proceedings: Notice of Filing Florida Power & Light Company's Amended (Proposed) Exhibit List filed.
PDF:
Date: 10/23/2015
Proceedings: FPL's Motion for Partial Summary Recommended Order or, Alternatively, for Dismissal of Petitioner, City of Miami filed.
PDF:
Date: 10/23/2015
Proceedings: Florida Power and Light Companys Response and Objection to the City of Miamis Request for Production filed.
PDF:
Date: 10/23/2015
Proceedings: Atlantic Civils Third Amended Exhibit List filed.
PDF:
Date: 10/22/2015
Proceedings: Petitioner, Atlantic Civil, Inc.'s Amended Exhibit List filed.
PDF:
Date: 10/19/2015
Proceedings: FPL's Motion to Exclude Testimony filed.
PDF:
Date: 10/16/2015
Proceedings: The City of Miami's Second Amended Witness Disclosure (filed in Case No. 15-001747).
PDF:
Date: 10/14/2015
Proceedings: Florida Power & Light Co.'s Response to Atlantic Civil, Inc.'s Second Request for Production to FPL filed.
PDF:
Date: 10/13/2015
Proceedings: The City of Miami's (Proposed) Exhibit List (filed in Case No. 15-001747).
PDF:
Date: 10/13/2015
Proceedings: Department of Environmental Protection's (Proposed) Exhibit Disclosure filed.
PDF:
Date: 10/13/2015
Proceedings: Petitioner, Atlantic Civil, Inc.'s (Proposed) Exhibit List filed.
PDF:
Date: 10/13/2015
Proceedings: Notice of Filing Florida Power & Light Company's (Proposed) Exhibit List filed.
PDF:
Date: 10/13/2015
Proceedings: Tropical Audubon Society, Inc.'s Blair Butterfield, and Charles Munroe's (Proposed) Exhibit List filed.
PDF:
Date: 10/12/2015
Proceedings: (Petitoner Atlantic Civil's) Amended Petition for Administrative Hearing filed.
PDF:
Date: 10/12/2015
Proceedings: Notice of Taking Deposition Duces Tecum (of Miguel Augustin) filed.
PDF:
Date: 10/12/2015
Proceedings: Order.
PDF:
Date: 10/09/2015
Proceedings: Respondents' Joint Response in Opposition to Atlantic Civil Inc.'s Motion to Amend Petition for Administrative Hearing filed.
PDF:
Date: 10/09/2015
Proceedings: Notice of Cancellation of Taking Depositions Duces Tecum filed.
Date: 10/09/2015
Proceedings: Order of Consolidation (DOAH Case Nos. 15-001745
PDF:
Date: 10/09/2015
Proceedings: (Petitioner's) Notice of Voluntary Dismissal (filed in Case No. 15-001745).
PDF:
Date: 10/09/2015
Proceedings: City of Miami's Amended Witness Disclosure (filed in Case No. 15-001747).
PDF:
Date: 10/08/2015
Proceedings: Re-notice of Taking Deposition Duces Tecum (of Marc Harris) filed.
PDF:
Date: 10/08/2015
Proceedings: Notice of Cancellation of Taking Deposition Duces Tecum of William Nuttle filed.
PDF:
Date: 10/08/2015
Proceedings: Notice of Filing Stipulation and Settlement Agreement Between Miami-Dade County, Florida Department of Environmental Protection, South Florida Water Management District, and Florida Power & Light Company filed.
PDF:
Date: 10/07/2015
Proceedings: Notice of Cancellation of Taking Deposition Duces Tecum (of Gwen Burzycki) filed.
PDF:
Date: 10/07/2015
Proceedings: Florida Department of Environmental Protection's Response in Opposition to Atlantic Civil, Inc.'s Motion for Leave to File Amended Petition for Administrative Hearing filed.
PDF:
Date: 10/06/2015
Proceedings: Cross Notice of Deposition (of Marc Harris, filed in Case No. 15-001747).
PDF:
Date: 10/06/2015
Proceedings: Florida Power & Light Company's Objection to Notice of Deposition Duces Tecum to Michael Sole filed.
PDF:
Date: 10/06/2015
Proceedings: Florida Power & Light Company's Objection to Notice of Deposition Duces Tecum to Scott Burns filed.
PDF:
Date: 10/05/2015
Proceedings: Notice of Taking Deposition Duces Tecum of Mark Crisp filed.
PDF:
Date: 10/05/2015
Proceedings: Re-Notice of Taking Deposition Duces Tecum (Burns) filed.
PDF:
Date: 10/02/2015
Proceedings: The City of Miami's Request to Produce Documents Directed to Florida Power and Light Company (filed in Case No. 15-001747).
PDF:
Date: 10/02/2015
Proceedings: Notice of Unavailability filed.
PDF:
Date: 10/02/2015
Proceedings: Motion for Leave to File Amended Petition for Administrative Hearing filed.
PDF:
Date: 10/02/2015
Proceedings: Amended Notice of Taking Deposition Duces Tecum (of Michael Sole) filed.
PDF:
Date: 10/01/2015
Proceedings: Notice of Taking Deposition Duces Tecum (of Gwen Burzycki, Lee Hefty, Pamela Sweeney, Wilbur Mayorga, Craig Grossenbacher, and Virginia Walsh) filed.
PDF:
Date: 10/01/2015
Proceedings: Amended Notice of Taking Deposition (of William Nuttle) filed.
PDF:
Date: 09/30/2015
Proceedings: Notice of Taking Deposition Duces Tecum (of William Nuttle) filed.
PDF:
Date: 09/29/2015
Proceedings: Notice of Taking Deposition Duces Tecum (of Sharon Ewe) filed.
PDF:
Date: 09/29/2015
Proceedings: Notice of Taking Deposition Duces Tecum (of Marc Harris) filed.
PDF:
Date: 09/29/2015
Proceedings: Notice of Taking Deposition Duces Tecum (of Scott Burns) filed.
PDF:
Date: 09/29/2015
Proceedings: Notice of Taking Deposition Duces Tecum (of Michael Sole) filed.
PDF:
Date: 09/28/2015
Proceedings: Amended Notice of Taking Continued Deposition (of Phil Coram, filed in Case No. 15-001747).
PDF:
Date: 09/28/2015
Proceedings: Amended Cross-notice of Taking Deposition (of Matthew Raffenberg, filed in Case No. 15-001747).
PDF:
Date: 09/25/2015
Proceedings: Notice of Appearance (Rachael Bruce) filed.
PDF:
Date: 09/24/2015
Proceedings: Notice of Taking Continued Deposition (of Phil Coram, filed in Case No. 15-001747).
PDF:
Date: 09/24/2015
Proceedings: The City of Miami's Witness Disclosure (filed in Case No. 15-001747).
PDF:
Date: 09/24/2015
Proceedings: Cross-notice of Taking Deposition (of Stacy Foster, filed in Case No. 15-001747).
PDF:
Date: 09/24/2015
Proceedings: Cross-notice of Taking Deposition (of Steve Krupa, filed in Case No. 15-001747).
PDF:
Date: 09/24/2015
Proceedings: Amended Cross-notice of Taking Deposition (of Matthew Raffenberg, filed in Case No. 15-001747).
PDF:
Date: 09/24/2015
Proceedings: Cross-notice of Taking Deposition (of Matthew Raffenberg, filed in Case No. 15-001747).
PDF:
Date: 09/24/2015
Proceedings: Cross-notice of Taking Deposition (of Terrie Bates, filed in Case No. 15-001747).
PDF:
Date: 09/23/2015
Proceedings: Notice of Taking Deposition Duces Tecum (of Tom Lodge, Laura Reynold, and Kirk Martin) filed.
PDF:
Date: 09/23/2015
Proceedings: Miami-Dade Countys Witness Disclosure filed.
PDF:
Date: 09/23/2015
Proceedings: Notice of Filing Florida Power & Light Companys Witness Disclosure filed.
PDF:
Date: 09/23/2015
Proceedings: Florida Department of Environmental Protections Witness Disclosure filed.
PDF:
Date: 09/23/2015
Proceedings: Re-Notice of Taking Deposition Duces Tecum (Krupa) filed.
PDF:
Date: 09/23/2015
Proceedings: Petitioner Atlantic Civils Witness Disclosure filed.
PDF:
Date: 09/23/2015
Proceedings: Tropical Audubon Society, Inc., Blair Butterfield and Charles Munroe's Witness Disclosure filed.
PDF:
Date: 09/23/2015
Proceedings: Cross-Notice of Taking Deposition (filed in Case No. 15-001747).
PDF:
Date: 09/23/2015
Proceedings: Cross-Notice of Taking Deposition (filed in Case No. 15-001747).
PDF:
Date: 09/22/2015
Proceedings: FPLs Notice of Taking Deposition Duces Tecum Steve Torcise filed.
PDF:
Date: 09/22/2015
Proceedings: Notice of Filing Verified Return of Service filed.
PDF:
Date: 09/22/2015
Proceedings: Notice of Appearance (Amelia Savage) filed.
PDF:
Date: 09/16/2015
Proceedings: Notice of Taking Deposition Duces Tecum (of Matthew Raffenberg) filed.
PDF:
Date: 09/16/2015
Proceedings: Notice of Appearance (Doug Roberts) filed.
PDF:
Date: 09/15/2015
Proceedings: Cross Notice of Taking Deposition (Phil Coram) filed.
PDF:
Date: 09/14/2015
Proceedings: Tropical Audubon Society, Inc., Blair Butterfield, and Charles Munroe's Supplemental Response to Florida Power & Light Company's Modified First Request for Production of Documents filed.
PDF:
Date: 09/14/2015
Proceedings: Petitioner, Atlantic Civil's Second Request for Production Directed to Respondent Florida Power & Light Company filed.
PDF:
Date: 09/14/2015
Proceedings: Amended Notice of Taking Deposition Subpoena Duces Tecum (of Terrie Bates) filed.
PDF:
Date: 09/11/2015
Proceedings: Notice of Appearance (Ruth Holmes) (filed in Case No. 15-001747).
PDF:
Date: 09/10/2015
Proceedings: Amended Notice of Filing Deposition Duces Tecum (Eliezer Wexler) filed.
PDF:
Date: 09/09/2015
Proceedings: Notice of Taking Deposition Duces Tecum (Terry Bates) filed.
PDF:
Date: 09/09/2015
Proceedings: Notice of Cancellation of Taking Deposition Duces Tecum of Marc Harris filed.
PDF:
Date: 09/09/2015
Proceedings: Notice of Taking Deposition Duces Tecum (Edward Swakon and Brad Waller) filed.
PDF:
Date: 09/09/2015
Proceedings: Notice of Taking Deposition Duces Tecum (Eliezer Wexler) filed.
PDF:
Date: 09/02/2015
Proceedings: Notice of Taking Deposition (Stacy Foster) filed.
PDF:
Date: 09/02/2015
Proceedings: Notice of Taking Deposition Duces Tecum (Mark Harris) filed.
PDF:
Date: 09/01/2015
Proceedings: Petitioners' Notice of Serving Responses to Florida Power & Light Company's First Set of Interrogatories (Nos. 1-12) filed.
PDF:
Date: 09/01/2015
Proceedings: Tropical Audubon Society, Inc., Blair Butterfield, and Charles Munroe's Response to Florida Power & Light Company's First Request for Production of Documents filed.
PDF:
Date: 08/26/2015
Proceedings: Amended Notice of Taking Deposition Duces Tecum (Phil Coram) filed.
PDF:
Date: 08/25/2015
Proceedings: Order (style of DOAH Case No. 15-1744 is changed to remove Jeffrey Millins as a Petitioner).
PDF:
Date: 08/24/2015
Proceedings: Notice of Taking Deposition Duces Tecum (of Phil Coram) filed.
PDF:
Date: 08/24/2015
Proceedings: Notice of Taking Deposition Duces Tecum (of Steve Krupa) filed.
PDF:
Date: 08/24/2015
Proceedings: Notice of Taking Deposition Duces Tecum (of Jeff Giddings) filed.
PDF:
Date: 08/24/2015
Proceedings: (Petitioners') Amended Petition for Formal Administrative Hearing filed.
PDF:
Date: 08/24/2015
Proceedings: (Petitioner's) Notice of Voluntary Dismissal filed.
PDF:
Date: 08/24/2015
Proceedings: Order (granting Petitioner's motion to leave to amend).
PDF:
Date: 08/21/2015
Proceedings: Notice of Taking Deposition Duces Tecum (of Jim Bolleter) filed.
PDF:
Date: 08/21/2015
Proceedings: (Petitioners') Motion for Leave to Amend filed.
PDF:
Date: 08/13/2015
Proceedings: Notice of Unavailability filed.
PDF:
Date: 07/17/2015
Proceedings: Amended Notice of Hearing (hearing set for November 2 through 6, 2015; 9:00 a.m.; Miami, FL; amended as to hearing room location).
PDF:
Date: 07/13/2015
Proceedings: Notice of Appearance (Brooke Lewis) filed.
PDF:
Date: 07/09/2015
Proceedings: Notice of Hearing (hearing set for November 2 through 6, 2015; 9:00 a.m.; Miami, FL).
PDF:
Date: 07/07/2015
Proceedings: Respondent Atlantic Civil, Inc.'s Response to Florida Power & Light Company's First Request for Production of Documents filed.
PDF:
Date: 07/07/2015
Proceedings: Notice of Serving Answers to FPLs First Set of Interrogatories filed.
PDF:
Date: 07/01/2015
Proceedings: Response to Rescheduling Order filed.
PDF:
Date: 06/25/2015
Proceedings: Order Granting Continuance (parties to advise status by July 1, 2015).
PDF:
Date: 06/24/2015
Proceedings: Unopposed Joint Motion for Continuance filed.
PDF:
Date: 06/11/2015
Proceedings: Notice of Appearance (Erin Deady) filed.
PDF:
Date: 06/08/2015
Proceedings: Amended Notice of Hearing (hearing set for August 4 through 7, 2015; 9:00 a.m.; Miami, FL; amended as to hearing room location).
PDF:
Date: 06/05/2015
Proceedings: Notice of Serving FL DEPS Answers to Petitioner, Atlantic Civil Inc.s, First Set of Interrogatories filed.
PDF:
Date: 06/05/2015
Proceedings: Florida Power & Light Company's Notice of Serving First Set of Interrogatories (Nos. 1-12) to Tropical Audubon Society, Inc., Blair Butterfield, Charles Munroe, and Jeffrey Mullins filed.
PDF:
Date: 06/05/2015
Proceedings: Florida Power & Light Company's First Request for Production of Documents to Tropical Audubon Society, Inc., Blair Butterfield, Charles Munroe, and Jeffrey Mullins filed.
PDF:
Date: 06/05/2015
Proceedings: Florida Power & Light Company's Notice of Serving First Set of Interrogatories (Nos. 1-16) to Atlantic Civil, Inc filed.
PDF:
Date: 06/05/2015
Proceedings: Florida Power & Light Company's First Request for Production of Documents to Atlantic Civil, Inc filed.
PDF:
Date: 06/05/2015
Proceedings: Florida Power & Light Company's Notice of Serving First Set of Interrogatories (Nos. 1-7) to Miami-Dade County filed.
PDF:
Date: 06/05/2015
Proceedings: Florida Power & Light Company's First Request for Production to Miami-Dade County filed.
PDF:
Date: 05/28/2015
Proceedings: Florida Power & Light Co.'s Response to Atlantic Civil, Inc.'s First Request for Production to FPL filed.
PDF:
Date: 05/28/2015
Proceedings: Florida Power & Light Co.'s Response to Atlantic Civil, Inc.'s First Request for Production to FPL filed.
PDF:
Date: 05/28/2015
Proceedings: Florida Power & Light Company's Notice of Serving Responses to Atlantic Civil, Inc.'s First Set of Interrogatories filed.
PDF:
Date: 04/30/2015
Proceedings: Notice of Hearing (hearing set for August 4 through 7, 2015; 9:00 a.m.; Miami, FL).
PDF:
Date: 04/30/2015
Proceedings: Order of Pre-hearing Instructions.
PDF:
Date: 04/28/2015
Proceedings: Petitioner, Atlantic Civil, Inc.'s, First Request for Production to Florida Power & Light Company filed.
PDF:
Date: 04/28/2015
Proceedings: Notice of Serving First Set of Interrogatories to Respondent Florida Department of Environmental Protection filed.
PDF:
Date: 04/28/2015
Proceedings: Notice of Serving First Set of Interrogatories to Respondent Florida Power & Light Company filed.
PDF:
Date: 04/24/2015
Proceedings: Order (denying motion to dismiss).
PDF:
Date: 04/23/2015
Proceedings: City of Miami's Response in Opposition to FPL's Motoin to Dismiss (filed in Case No. 15-001747).
PDF:
Date: 04/23/2015
Proceedings: Petitioner Miami-Dade County's Response in Opposition to Respondent Florida Power & Light Company's Motion to Dismiss filed.
PDF:
Date: 04/23/2015
Proceedings: Petitioner Atlantic Civil, Inc.'s Response in Opposition to Florida Power and Light Company's Motion to Dismiss filed.
PDF:
Date: 04/23/2015
Proceedings: Response of Tropical Audubon, Blair Butterfield, Charles Munroe and Jeffrey Mullins in Opposition to FPL's Motion to Dismiss filed.
PDF:
Date: 04/20/2015
Proceedings: Order (denying motion to consolidate).
PDF:
Date: 04/17/2015
Proceedings: (Department's) Response to Joint Motion to Consolidate filed.
PDF:
Date: 04/17/2015
Proceedings: (FPL's) Response to Motion to Consolidate filed.
PDF:
Date: 04/16/2015
Proceedings: (Respondent's) Motion to Dismiss filed.
PDF:
Date: 04/10/2015
Proceedings: Joint Motion to Consolidate, Exhibits 6 and 7 filed.
PDF:
Date: 04/10/2015
Proceedings: Joint Motion to Consolidate, Exhibits 4 and 5 filed.
PDF:
Date: 04/10/2015
Proceedings: Joint Motion to Consolidate, Exhibits 1, 2, and 3 filed.
PDF:
Date: 04/10/2015
Proceedings: Joint Motion to Consolidate for Hearing and Discovery Purposes by Miami-Dade County, City of Miami, Tropical Audubon Society, and Atlantic Civil, Inc. filed.
PDF:
Date: 04/10/2015
Proceedings: (Joint) Response to April 7, 2015 Order filed.
PDF:
Date: 04/07/2015
Proceedings: Order (parties shall file, within 10 days of Order, mutually agreeable dates for final hearing in June and August 2015) .
PDF:
Date: 04/03/2015
Proceedings: Joint Response to Initial Order filed.
PDF:
Date: 04/01/2015
Proceedings: Notice of Appearance (Gary Perko) filed.
PDF:
Date: 03/30/2015
Proceedings: Order of Consolidation (DOAH Case Nos. 15-1744, 15-1745, 15-1746, and 15-1747).
PDF:
Date: 03/27/2015
Proceedings: Initial Order.
PDF:
Date: 03/26/2015
Proceedings: Administrative Order filed.
PDF:
Date: 03/26/2015
Proceedings: Petition for Administrative Hearing filed.
PDF:
Date: 03/26/2015
Proceedings: Request for Assignment of Administrative Law Judge and Notice of Preservation of Record filed.

Case Information

Judge:
BRAM D. E. CANTER
Date Filed:
03/26/2015
Date Assignment:
03/27/2015
Last Docket Entry:
05/09/2016
Location:
Miami, Florida
District:
Southern
Agency:
ADOPTED IN PART OR MODIFIED
 

Counsels

Related DOAH Cases(s) (2):

Related Florida Statute(s) (4):

Related Florida Rule(s) (1):