15-001559EPP Florida Power And Light Company Turkey Point Power Plant Units 3-5 Modification To Conditions Of Certification vs. * Status: Closed Recommended Order on Monday, January 25, 2016.

Summary: FPL demonstrated that the proposed modification complies with all applicable regulating criteria and with the certification criteria in the Power Plant Siting Act.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

FLORIDA POWER AND LIGHT COMPANY Case No. 15 - 1559EPP

TURKEY POINT POWER PLANT UNITS

3 - 5 MODIFICATION TO CONDITIONS

OF CERTIFICATION

_______________________________/

RECOMMENDED ORDER

The final hea ring in this matter was held on December 1 - 4,

2015, in Miami, Florida, before Bram D. E. Canter, an

Administrative Law Judge of the Division of Administrative

Hearings (ÐDOAHÑ).

APPEARANCES

For Florida Power and Light Company (ÐFPLÑ) :

Peter C. Cunningham, Esquire

Gary V. Perko, Esquire

Douglas S. Roberts, Esquire

Jonathan Harrison Maurer, Esquire

Hopping, Green and Sams, P.A.

Post Offic e Box 6526

Tallahassee, Florida 32314

Peter Cocotos, Esquire

Florida Power and Light Company

215 South Monroe Street, Suite 810

Tallahassee, Florida 3230 1

For Department of Environmental Protection (ÐDEPÑ) :

Sarah M. Doar, Esquire

Department of Environmental Protection

Office of General Counsel

Mail Station 35

3900 Commonwealth Boulevard

Tallahassee, Florida 32399

For South Florida Water Management District (ÐSFWMDÑ) :

Carlyn H. Kowalsky, Esquire

South Florida Water Management District

Mail Stop Code 1410

3301 Gun Club Road

West Palm Beach, Florida 33406

For Intervenor Atlantic Civil, Inc. (ÐACIÑ)

Andrew J. Baumann, Esquire

Alfred J. Malefatto, E squire

Rachel B. Santana, Esquire

Lewis, Longman and Walker, P.A.

515 North Flagler Drive, Suite 1500

West Palm Beach, Florida 33401

S TATEMENT OF THE ISSUE

The issue to be determined in this case is whether the

Governor and Cabinet, in their capacity as the Siting Board and

pursuant to the Florida Electrical Power Plant Siting Act

(ÐPPSAÑ) , should approve FPLÓs request to modify the Conditions

of Certification for Units 3 , 4 , and 5 of the Turkey Point Power

Plant in southeast Miami - Dade County.

PRELIMINARY STATEMENT

On September 5, 2014, FPL filed a petition with DEP pursuant

to the PPSA, chapter 403, Part II, Florida Statutes, to modify

the Conditions of Certification for T urkey Point Units 3, 4, and

5 to authorize three Ð system improvement projects ,Ñ including the

construction and operation of up to six new production wells to

withdraw 14 million gallons per day (Ð mgd Ñ) of Upper Floridan

Aquifer (ÐUFAÑ) water for use in the Turkey Point cooling canal

system (ÐCCSÑ) for salinity and temperature management purposes.

On December 23, 2014, DEP issued n otice of its i ntent to modify

the Conditions of Certification to authorize the three projects

proposed by FPL. All required pub lic notices were published by

FPL and DEP.

On March 19, 2015, DEP issued a final order authorizing the

requested modifications for which no objections had been raised.

Miami - Dade County, Tropical Audubon Society , Inc., and SFWMD

each filed n otices of their intent to be parties to the

modification proceeding . Miami - Dade County and Tropical Audubon

Society , Inc., later voluntarily withdrew from the proceeding.

On March 24, 2015, ACI filed a Motion to Intervene , which

was opposed by FPL. The motion to interv ene was denied for

failing to include an adequate explanation of ACIÓs alleged

injury, but ACI was granted leave to file another motion to

intervene. On April 3, 2015, ACI filed an Amended Motion to

Intervene , which was granted . O n October 30, 2015, ACI filed a

Second Amended Motion to Intervene , which was granted over the

objection of FPL.

At the final hearing, Joint Exhibits 1 - 6 were admitted into

evidence. F PL presented the testimony of: Steven Scroggs,

Senior Director of Project Development for FPL , who was accepted

as an expert in power plant engineering, design , and siting;

Peter Andersen, P.E., who was accepted as an expert in

groundwater hydrology and groundwater flow and transport

modeling; and Gregory Powell, Ph.D. FPL also submitted pre - filed

expert testimony of: Dr. Powell, James Andersen, Karl Bullock,

Kerri Kitchen, Kennard Kosky, and James Lindsay. FPL Exhibits

1 - 6, 12 - 13, 19 - 22, 44, 46, 48, 54 - 59, and 61 were admitted into

evidence.

DEP presented the testimony of: Ann Seiler, an Enviro nmental

Specialist III within DEPÓs Siting Coordination Office; Justin

Green, a former Program Administrator for the Siting Coordination

Office; and Phillip Coram, a DEP Program Administrator who was

accepted as an expert in environmental engineering. DEP Exhibits

23 and 28 were admitted into evidence.

SFWMD presented the testimony of: Simon Sunderland, SFWMDÓs

Section Leader for Lower East Coast Planning, Permitting, and

Compliance; and Jefferson Giddings, a Principal Scientist at

SFWMD who was accepted as an expert in groundwater modeling.

SFWMD Exhibits 1, 2, 10 , and 13 were admitted into evidence.

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

ACIÓs President; Marc Harris, a DEP employee responsible for

issuing National Pollution Discharg e Elimination System permits

for power plants; Steven Krupa, who is in charge of the

hydrogeology section in the SFWMDÓs Water Supply Department and

who was accepted as an expert in hydrogeology and geology ;

William Nuttle, Ph.D., who was accepted as an ex pert in coastal

wetlands hydrology with emphasis in the area of water and salt

budgets; Elezier Wexler, who was accepted as an expert in

groundwater hydrology and groundwater transport modeling; and

Edward Swakon, who was accepted as an expert in groundwat er

resources and groundwater monitoring. ACI Exhibits 9 - 1 1 , 14 - 16,

18, 24 - 26, 28, 31, 34 - 36, 38, 42, 48 - 50, 50A, 51, 52, 57, 61, 63,

and 65 were admitted into evidence.

No member of the public requested the opportunity to offer

testimony on the proposed m odification. No written comments were

received from the public.

The six - volume T ranscript of the final hearing was filed

with DOAH. The parties filed proposed recommended orders that

were considered in the preparation of this Recommended Order.

FINDINGS OF FACT

The P arties

1. FPL is a subsidiary of NextEra Energy and a regulated

Florida utility. It provides electric service to 4.7 million

customers in 35 counties. The Turkey Point Power Plant in

southeast Miami - Dade County is one of 14 generating facil ities

operated by FPL.

2. DEP is the state agency charged with administering the

PPSA pursuant to c hapter 403, Part II.

3. S FWMD is a regional agency created by c hapter 373,

F lorida Statutes, with regulatory authority over water use

permitting within its geographic jurisdiction, which includes the

Turkey Point Power Plant site.

4. ACI owns 2,598 acres of land in southeast Miami - Dade

County approximately four miles west of the Turkey Point CCS.

ACI has use d its property for agriculture and limerock minin g for

many years and continues to do so.

5. ACI withdraws and uses water from the Biscayne Aquifer

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

the - Mine Environmental Resource Permit issued by DEP for its

mining activities. T he Life - o f - the - Mine permit requires that

mining be terminated if monitoring data indicate the occurrence

of chloride concentrations greater than 250 milligrams per liter

(Ð mg/L Ñ) in the mine pit.

The Requested Modifications

6. FPL is requesting to modify the Condi tions of

Certification to authorize three projects related to water use:

(1) construction and operation of the new UFA production wells

for use in the CCS; (2) utilization of one of the new production

wells as a dual purpose well to comply with a recent or der of the

U.S. Nuclear Regulatory Commission related to providing emergency

cooling water supplies for the nuclear - fueled Units 3 and 4; and

(3) re - allocation of authorized water withdrawn from an existing

production well for Unit 5 (Well No. PW - 3) as a s ource of process

water for Units 3 and 4.

7. DEP received three written objections to the proposed

production wells to provide water for use in the CCS. No

objection s w ere raised regarding th e two other FPL projects and

DEP issued a final order approving th ose two modifications. This

proceeding involves only the proposal to construct and operat e

new UFA production wells to discharge water into the CCS .

Turkey Point

8. FPLÓs Turkey Point property covers approximately

9,400 acres in unincorporated Miami - D ade County , located 25 miles

south of the City of Miami and along the coastline adjacent to

Biscayne Bay.

9. Fi ve electrical generating units were built at Turkey

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

operating as a power generatio n facility in 2010. Units 3 and 4

are FloridaÓs first nuclear generating units , which FPL

constructed in the 1970s. Unit 5 is a natural gas combined cycle

generating unit brought into service in 2007.

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

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

certified pursuant to the PPSA in 2008 when FPL applied to

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

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

The CCS

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

which provides a heat removal function for Units 1, 3 , and 4, and

receives cooling tower blowdown from Unit 5.

12. FPL constructed the CCS in compliance with a 1 971

consent judgment with the U.S. Department of Justice in order to

terminate direct discharges of heated water into Biscayne Bay.

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

it is an Ðassociated facility,Ñ which means it directly supports

the operation of the power plant .

14. The CCS functions like a radiator, which uses

evaporation, convective heat transfer, and radiated heat loss to

lower the water temperature. When cooling water enters the

plant, heat is transferred to the water by flow - through heat

exchangers and t hen discharged to the ÐtopÑ or northeast corner

of the CCS . Circulating water pumps provide counter - clockwise

flow of water from the discharge point, down (south) through the

32 westernmost canals, across the southern end of the CCS, and

then back up the seven easternmost canals to the power plant

intake .

15. The full circuit through the CCS from discharge to

intake takes a bout 48 hours and results in a reduction in water

temperature of about 10 to 15 degrees Fahrenheit.

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

connection to the groundwater. Makeup water for the CCS comes

from process water, rainfall, stormwater runoff, and groundwater

infiltration to replace water lost by evaporation and seepage.

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

predecessor, the Central and Southern Florida Flood Control

District, entered into an agreement to address the operation and

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

to time. The original agreement and updates calle d for

monitoring the potential impacts of the CCS.

18. Operation of the CCS is also subject to a state

industrial wastewater permit and National Pollution Discharge

Elimination System (ÐNPDESÑ) permit administered by DEP. The

state industrial wastewater /NPDES permit is incorporated into the

Conditions of Certification.

Hypersaline Conditions

19. The original salinity levels in the CCS were probably

the same as Biscayne Bay .

20. However, because the salt in saltwater is left behind

when the water eva porates, the water in the CCS becomes saltier.

Salinity levels in the CCS are also affected by the amount of

rainfall, air temperature, water temperature, the volume of flow

from the power plant, and the rate of water circulation.

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

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

60 Practical Salinity Units (ÐPSUÑ). This is a ÐhypersalineÑ

condition, which means the salinity level is higher than is

typical for seawater, which is abou t 35 PSU.

22. Higher salinity makes water denser, so the hypersaline

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

the Biscayne Aquifer, which is about 80 feet beneath the CCS. At

this depth, there is a confining layer that separates th e

Biscayne Aquifer from the deeper Upper Floridan Aquifer. The

confining layer stops the downward movement of the hypersaline

ÐplumeÑ and it spreads out in all directions.

23. The 2008 Conditions of Certification included a

Section X, entitled ÐSurfac e Water, Ground Water, Ecological

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

execute a Fifth Supplemental Agreement regarding the operation

and management of the CCS. New monitoring was required and FPL

was to Ðdelineate the vertica l and horizontal extent of the

hyper - saline plume that originates from the cooling canal systemÑ

and Ðdetect changes in the quantity and quality of surface and

ground water over time due to the cooling canal system.Ñ

24. In response, FPL installed 14 clu sters of groundwater

monitoring wells, each cluster allowing data to be collected from

shallow, middle, and deep zones of the Biscayne Aquifer.

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

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

26. FPL presented evidence to show the salinity spikes in

recent years are attributable in part to lower than normal

rainfall and to high er turbidity in the CCS caused by algal

blooms .

27. In addition, t he retirement of Unit 2 and the uprate of

Units 3 and 4 during this time - period reduced flow and

circulation in the CCS, which contributed to i ncreased

temperature s in the CCS, more evaporation, and higher salinity

levels .

28. ACI contends the uprate of Units 3 and 4 is the primary

cause of recent, hig her water temperatures and higher salinity .

In support, ACI points to FPLÓs uprate application, which

predicted the uprate would increase CCS water temperature and

salinity, as well as other data indicating a correlation between

the uprate and higher temp erature and salinity. However, the

uprate application was filed before Unit 2 was decommissioned in

2010. FPL presented evidence that elimination of the thermal

output from Unit 2 offset the thermal output from the uprate of

Units 3 and 4 , so that the to tal thermal output is now about f our

percent less. ACI did not refute this thermal output

calculation.

29. It is undisputed that evaporation is the main cause of

hypersalinity in the CCS, but the testimony about the recent

spike in salinity and the rela tive influence of contributing

factors shows it is a complex subject due to the number of

factors, most of which vary by season and even daily. The

relative contribution of the factors affecting salinity in the

CCS is one that scientists can disagree abou t because the

analyses that have been conducted to date are not comprehensive

or meticulous enough to end reasonable disagreement.

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

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

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

remov ing sediment build - up in the canals to improve flow . Th ese

actions , combined with more normal rainfall , have decreased

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

final hea ring .

Saltwater Intrusion

31. Historical data shows that when the CCS was constructed

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

coast due to water withdrawals, flood control structures, and

other human activities.

32. An intercepto r ditch was constructed just west of and

adjacent to the CCS to restrict the movement of saline water west

of the ditch. This was supposed to be accomplished by pumping

water out of the ditch as necessary to keep its water level lower

than the water level in the more western L - 31E Canal so that a

hydraulic gradient toward the east was maintained.

33. The ÐfrontÑ or westernmost line of saltwater intrusion

is referred to as the saline water interface. More specifically,

the saline water interface is where groundwater with chloride

concentration of 10,000 mg/L or greater meets groundwater with a

lower chloride concentration. DEP classifies groundwater with a

chloride concentration less than 10,000 mg/L as G - II groundwater,

and groundwater with a chloride c oncentration equal to or greater

than 10,000 mg/L as G - III groundwater, so the saline water

interface can be described as the interface between G - II and G -

III groundwaters.

34. In the 1980s, the sal ine water interface had moved just

west of the CCS inter ceptor ditch. Now, the saline water

interface is four or five miles west of the CCS, and it is still

moving west.

35. The groundwater that comes from the CCS can be

identified by its tritium content because tritium occurs in

greater concentrations in CC S process water than occurs naturally

in groundwater. CCS water has been detected four miles west of

the CCS.

36. CCS saline waters have also been detected northwest of

the CCS, moving in the direction of Miami - Dade CountyÓs public

water supply wellfiel ds.

37. The hypersaline plume pushes the saline water interface

further west. Although Respondents indicated there are other

factors that affect saltwater intrusion, the preponderance of the

evidence shows the CCS is now the primary reason the saltwater

interface in this area is continuing to move inland.

38. Section X of the Condition s of Certification provides

that, if monitoring data indicate harm or potential harm to the

waters of the State, then additional measures shall be required

by DEP to eval uate or to abate such impacts. D E P determined that

the CCS is harming waters of the State by contributing to

saltwater intrusion. Saltwater intrusion reduces the amount of

fresh groundwater available for natural resources and water

users .

39. ACI estim ated that, with each day that passes, the

westward march of the saltwater interface is causing the loss of

855,000 more gallons of fresh groundwater from the Biscayne

Aquifer. Even if the amount is only half as much, it is a

substantial loss.

40. The Bi scayne Aquifer is the main source of potable

water in Miami - Dade County and is designated by the federal

government as a sole source aquifer under the Safe Drinking Water

Act.

41. When FPL applied to renew its NPDES permit, DEP was

concerned about the ef fect the CCS was having on saltwater

intrusion. DEP decided to administratively extend the NPDES

permit, rather than renew it, while the agency determined what

action should be taken to deal with the problem.

42. On December 23, 2014, DEP issued a n Admin istrative

Order (ÐAOÑ) that requires FPL to prepare and submit for review

and approval a Salinity Management Plan to reduce hypersaline

conditions and their effect on saline water intrusion. The AO

was challenged in a separate administrative proceeding an d is not

yet in effect.

43. A DEP administrator stated that DEP has not been able

to identify a specific violation of state water quality standards

attributable to the CCS , but his explanation did not reconcile

the undisputed evidence that the CCS has a g roundwater discharge

of hypersaline water that is contributing to saltwater intrusion.

Florida Administrative Code Rule 62 - 520.400, entitled ÐMinimum

Criteria for Ground Water,Ñ prohibits a discharge in

concentrations that Ðimpair the reasonable and benef icial use of

adjacent waters.Ñ

44. As explained in the Conclusions of Law, this is not an

enforcement proceeding. However, Respondents thought it was

relevant to assert that FPLÓs proposal is not a response to a

water quality violation. If so, it is rel evant for the

Administrative Law Judge to state that the record evidence and

applicable law indicate FPL is in violation of the minimum

criteria for groundwater in rule 62 - 520.400.

Effect of the Proposed Modification on Saltwater Intrusion

45. Responden ts emphasize that the FPL proposal is better

than a Ðno actionÑ alternative. However, the Conditions of

Certification require FPL to take action because operation of the

CCS is harming water resources. Asserting that FPLÓs proposal is

better than taking no action is no more meaningful than asserting

that FPLÓs proposal would be beneficial.

46. FPL estimated that the addition of 14 mgd of water from

the UFA, which has a salinity of about 2 PSU, would reduce

salinity in the CCS to t h e salinity in Biscayne Bay , about 35

PSU, or even lower. ACIÓs evidence did not refute this estimate .

47. Adding UFA water to the CCS would also reduce water

temperatures in the CCS. That is important in order to avoid

exceeding the temperature limit imposed by the Nuclear Re gulatory

Commission on operation of the nuclear units, Units 3 and 4. The

temperature limit is 104 degrees Fahrenheit and, if exceeded,

would require Units 3 and 4 to be shut down.

48. The FPL proposal w ould remove the source of the

hypersaline water . Hypersaline water would no longer be sinking

beneath the CCS.

49. FPL presented evidence to show the low saline water

would begin to mix with the hypersaline water already in the

Biscayne Aquifer, the groundwater in the area would steadily

Ðfreshen,Ñ and the hypersaline plume would begin to shrink and

eventually disappear.

50. ACI pointed out that the salt in the CCS and in the

Biscayne Aquifer would not disappear, but ACI did not explain the

significance of that fact. ACI did not explain how the model ing

efforts by FPL failed to account for salt or explain how the

presence of salt undermines the modelÓs prediction that

groundwater in the area would steadily freshen and the

hypersaline plume would shrink and eventually disappear.

51. The testimony of ACIÓs expert hydrologists was

persuasive in showing the two - dimensional groundwater model used

by FPL and SFWMD to analyze and predict the effect of adding UFA

water to the CCS was not the best tool for the task. A two -

dimensional model cannot account for some of the factors

affecting water movement and salinity. A three - dimensional model

produces more reliable results and is a better predictive tool

for these purposes. Nevertheless, differences between the

results obtained from the two - dimensional model ing by FPL and the

three - dimensional modeling by ACI do not affect the

recommendation to the Siting Board.

52. FPL and SFWMD estimated that the addition of 14 mgd of

water into the CCS would reduce the rate of westward movement of

CCS hypersaline saline waters in the Biscayne Aquifer and this,

in turn, would slow the westward movement of the sal ine water

interface.

53. No party believes the FPL proposal will halt the

westward movement of the sal ine water interface.

54. ACI contends the FPL proposal wo uld worsen groundwater

conditions because adding water to the CCS would increase the

hydraulic ÐheadÑ in the CCS and exert a greater westward push on

groundwaters in the Biscayne Aquifer, and a greater push on the

existing hypersaline plume. However, the water in the CCS would

be less dense after the UFA water is added, which RespondentsÓ

experts said would offset the increase in volume. ACI did not

show how water density was accounted for in its own analyses. In

addition, ACIÓs Exhibit s 38 , 39, 42, 51, and 63 appear to support

RespondentsÓ contention that the FPL proposal would slow the rate

of saltwater intrusion.

55. The effect of the FPL proposal on the hypersaline plume

is the most difficult question in the case. The evidence

presented necessarily relied on many assumptions about physical

features and processes, some of which had to be simplified for

practical analysis. FPLÓs evidence does not create certainty,

but FPL met its prima facie burden to demonstrate that the

proposed water use would be consistent with the public interest

because the modification would improve current groundwater

conditions. ACIÓs evidence raises serious questions, but was not

sufficient to rebut FPLÓs showing.

56. Respondents estimate that it would take about 25 years

for the sal ine w ater interface to reach ACIÓs property if the FPL

proposal is implemented.

57. ACIÓs analysis focused, instead, on the movement of an

advancing contour of much lower salinity, 250 mg/L, because this

lower level is a limit in ACIÓs permit and would disrupt ACIÓs

mining operations. This Ðtoo salineÑ water will reach ACIÓs

property in 10 years, even with the FPL proposal.

Water Use Regulatory Criteria

58. ACI did not raise any issues regarding FPL Ós compliance

with SFWMD water use criteri a associated with the proposed

withdrawal, itself. ACI does not contend that the proposed

withdrawal of 14 mgd of water from the UFA would interfere with

existing legal uses , cause saltwater intrusion , harm wetlands and

surface waters, or adversely affect off - site land uses.

59. SFWMD reviewed the proposed use of the UFA water in the

CCS for consistency with the public interest and determined that

the use was consistent because it would improve current

conditions in the CCS and Biscayne Aquifer.

60. FPL provided reasonable assurance that the FPL proposal

meets all applicable water use regulatory criteria.

PPSA C riteria for Approval

61. For the reasons stated above, the record evidence

supports an affirmative determination by the Siting Board

regarding the certification criteria in section 403.509(3)(a)

through (g).

CONCLUSIONS OF LAW

Standing

62. S ection 403.508( 3 ) (e) de scribes the parties to a PPSA

certification proceeding as includ ing persons whose substantial

interests are affected and being determ ined by the proceeding and

who timely file a motion to intervene.

63. ACI has standing in this proceeding because the

Conditions of Certification acknowledge and address the potential

for harm to water resources caused by the CCS. The harm

encompasses le gal uses of the water resources, like ACIÓs uses,

that will be affected by the operation of the CCS.

64. Respondents cite Agrico v. Dep artment of Environmental

Regulation , 406 So. 2d 478, 482 (Fla. 2d DCA 1981) , in support of

their argument that ACI has n ot demonstrated standing because t he

proposed modification does not present an immediate threat to

ACIÓs property. The injury to ACI is immediate in the sense that

it is predictable based on current conditions and does not

require the occurrence of interv ening events or forces. ACIÓs

injury is no less immediate than the injury that would be

suffered by anyone downstream of a pollution source, when the

timing of the ÐimpactÑ and the concentration of the pollution at

the time of impact can be calculated by accepted scientific

methods.

Burden and Standard of Proof

65. Respondents state that FPL, a s the applicant for

certification, has the ultimate burden of persuasion to

demonstrate entitlement to the requested modifications, citing In

re: Progress Energy Fl orida Levy Nuclear Project Units 1 and 2 ,

2009 Fla. ENV LEXIS 151 at *114; and Fl orida Department of

Transp ortation v. J.W.C. Co., Inc . , 396 So. 2d 778, 787 (Fla. 1st

DCA 1981). However, those cases pre - date the amendment of

chapter 120 , Florida Statutes, to create section 120.569(2)(p).

This section now places the ultimate burden of persuasion on the

challenger in all licensing proceedings arising under chapter 403

after the permit applicant has introduced the permit file

constituting its prima facie cas e . This is a licensing

proceeding arising under chapter 403. Therefore, ACI has the

ultimate burden of persuasion in this proceeding.

66. The standard of proof is a preponderance of the

evidence. See § 120.57(1)(j), Fla. Stat. (2015). FPL must

demonst rate by a preponderance of the evidence that it has

provided reasonable assurances of its compliance with all

applicable regulatory criteria. Reasonable assurance

contemplates a Ðsubstantial likelihood that the project will be

successfully implemented.Ñ Metro. Dade Cnty. v. Coscan Fla.,

Inc . , 609 So. 2d 644, 648 (Fla. 3d DCA 1992) . It does not

require absolute guarantees.

Nonprocedural Agency Requirements

67. Section 373.223(1) provides that Ð[t]o obtain a [ water

use] permit pursuant to the provisions o f this chapter, the

applicant must establish that the proposed use of water: (a) Is a

reasonable - beneficial use as defined in s. 373.019; (b) Will not

interfere with any presently existing legal use of water; and,

(c) Is consistent with the public interest .Ñ

68. ACI claims in its Proposed Recommended Order that FPL

failed to demonstrate a need for the amount of water it requested

and did not consider mitigative measures, but these issues were

not raised in ACIÓs amended petition to intervene.

69. ACI clai ms the proposed use of the 14 mgd of water, in

contrast to the withdrawal of the water, was not properly

reviewed by SFWMD under the reasonable - beneficial use criteria.

However, SFWMD reviewed the proposed use of the water under the

public interest test, which is consistent with its rules and

practices. The FPL proposal is consistent with the public

interest because it would likely improve current groundwater

conditions. It would also reduce water temperature in the CCS to

avoid the shutdown of the nucle ar generating units pursuant to

N uclear Regulatory Commission requirements .

70. FPLÓs proposed modification does not create any

inconsistencies with the industrial wastewater/NPDES permit.

71. FPL provided reasonable assurance that the proposed

modificat ion would comply with all applicable water use

regulatory criteria.

72. However, AC I urges the Siting Board to deny the

proposed modification because ACI believes it perpetuates a

problem created by the CCS and fails to prevent the eventual

contamination of the groundwater resources that ACI relies on for

its agricultural and mining operations. ACI does not propose a

condition or conditions under which FPLÓs proposal could be

approved.

7 3 . ACI points out that the Conditions of Certification are

Ðfully en forceable,Ñ but this is not an enforcement proceeding.

Because the preponderance of the evidence demonstrates the FPL

proposal would result in an improvement in groundwater

conditions, the requested modification, itself, does not fail to

comply with the C onditions of Certification .

7 4 . Respondents are probably correct that, in this

certification proceeding, it is sufficient for the Siting BoardÓs

approval of FPLÓs proposed modification that the modification

would result in an improvement over current grou ndwater

conditions. However, it is appropriate to inform the Siting

Board that the operation of the Turkey Point Power Plant, as

authorized by the Siting Board under the Conditions of

Certification, has caused harm to water resources because of the

effect s of the CCS, and the modification requested by FPL will

not prevent further harm from occurring.

RECOMMENDATION

B ased on the foregoing Findings of Fact and Conclusions of

Law , it is

RECOMMENDED that the Siting Board enter a final order

approving the mo difications to the Turkey Point C onditions of

Certification as proposed on December 23, 2014, with the addition

of the following condition , which was stipulated by the parties:

FPL shall monitor the proposed Floridan

production wells (F - 1, F - 2, F - 3, F - 4 an d F - 5)

on a quarterly basis for: water level or

pressure; temperature; pH, Total Dissolved

Solids; specific conductance; major

anions/cations (including chlorides); NH3;

total nitrogen; and total phosphorus. This

monitoring data shall be made available t o

Miami - Dade County as well as FDEP and the

SFWMD. On a semi - annual basis, Miami - Dade

County may collect groundwater samples of the

proposed Floridan production wells (F - 1, F - 2,

F - 3, F - 4 and F - 5) for constituents including

but not limited to 018/16 and St rontium

(87Sr/86Sr).

DONE AND ENTERED this 25th day of January , 2016 , in

Tallahassee, Leon County, Florida.

S

BRAM D. E. CANTER

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalac hee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 25th day of January , 2016 .

COPIES FURNISHED:

Sarah M. Doar, Esquire

Departme nt of Environmental Protection

Office of General Counsel

Mail Station 35

3900 Commonwealth Boulevard

Tallahassee, Florida 32399

(eServed)

Peter C. Cunningham, Esquire

Gary V. Perko, Esquire

Douglas S. Roberts, Esquire

Jonathan Harrison Maurer, Esquire

Ho pping, Green and Sams, P.A.

Post Office Box 6526

Tallahassee, Florida 32314

(eServed)

Peter Cocotos, Esquire

Florida Power and Light Company

215 South Monroe Street, Suite 810

Tallahassee, Florida 32301

(eServed)

Carlyn H. Kowalsky, Esquire

South Fl orida Water Management District

Mail Stop Code 1410

3301 Gun Club Road

West Palm Beach, Florida 33406

(eServed)

Andrew J. Baumann, Esquire

Alfred J. Malefatto, Esquire

Rachel B. Santana, Esquire

Lewis, Longman and Walker, P.A.

515 North Flagler Drive , Su ite 1500

West Palm Beach, Florida 33401

(eServed)

Abbie Schwaderer Raurell, Esquire

Miami - Dade County Attorney's Office

111 Northwest 1st Street , Suite 2810

Miami, Florida 33128

(eServed)

Anthony Justin Pinzino, Esquire

Florida Fish and Wildlife Conser vation Commission

Farris Bryant Building

620 South Meridian Street

Tallahassee, Florida 32399 - 1600

(eServed)

Adam Teitzman, Esquire

Florida Public Service Commission

2450 Shumard Oak Boulevard

Tallahassee, Florida 32399 - 0850

Samuel S. Goren, Esquire

Go ren, Cherof, Doody and Ezrol, P.A.

3099 East Commercial Boulevard, Suite 200

Fort Lauderdale, Florida 33308 - 4311

Kimberly Clark Menchion, Esquire

Department of Transportation

Mail Station 58

605 Suwannee Street

Tallahassee, Florida 32399

(eServed)

D eena Woodward

Department of State

Division of Historical Resources

RA Gray Building, 4th Floor

500 South Bronough Street

Tallahassee, Florida 32399

Edwin A. Steinmeyer, Esquire

Steinmeyer Fiveash LLP

310 West College Avenue

Tallahassee, Florida 32301

(e Served)

Christina Arzillo Shideler, Esquire

Department of Economic Opportunity

MSC 110

107 East Madison Street

Tallahassee, Florida 32399

(eServed)

Lea Crandall, Agency Clerk

Department of Environmental Protection

Mail Station 35

3900 Commonwealth Boul evard

Tallahassee, Florida 32399

(eServed)

Jonathan P. Steverson, Secretary

Department of Environmental Protection

Mail Station 35

3900 Commonwealth Boulevard

Tallahassee, Florida 32399

(eServed)

Craig Varn, General Counsel

Department of Environmental Protection

Mail Station 35

3900 Commonwealth Boulevard

Tallahassee, Florida 32399

(eServed)

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

15 days from the date of this Recommended Order. Any excepti ons

to this Recommended Order should be filed with the agency that

will issue the Final Order in this case.