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.

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.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

ATLANTIC CIVIL, INC.,

Petitioner,

vs. Case No. 15 - 1746

FLORIDA POWER AND LIGHT COMPANY

AND DEPARTMENT OF ENVIRONMENTAL

PROTECTION,

Respondents.

_______________________________/

CITY OF MIAMI,

Petit ioner,

vs. Case No. 15 - 1747

FLORIDA POWER AND LIGHT COMPANY

AND DEPARTMENT OF ENVIRONMENTAL

PROTECTION,

Respondents.

_______________________________/

R E COMMENDED ORDER

The final hearing in this case was held on November 2

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

Administrative Law Judge of the Division of Administrative

Hearings (ÐDOAHÑ).

APPEARANCES

For Petitioner Atlantic Civil, Inc. (ÐACIÑ) :

Andrew J. Baumann, Esquire

Rachael B. Santana, Esquire

Lewis, Longman and Walker, P.A.

515 North Flagler Drive, Suite 1500

West Palm Beach, Florida 33401

Edwin A. Steinmeyer, Esqu ire

Lewis, Longman and Walker, P.A.

315 South Calhoun Street, Suite 830

Tallahassee, Florida 32301

For Petitioner City of Miami:

Kerri L. McNulty, Esquire

Matthew S. Haber, Esquire

Ruth A. Holmes, Esquire

Nicholas Basco, Esquire

City of Miami

444 Southwest 2nd Avenue, Suite 945

Miami, Florida 33130

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

Gary V. Perko, Esquire

Brooke E. Lewis, Esquire

Hopping Green and Sams, P.A.

119 South Monroe Street, Suite 300

Tallahassee, Florida 32301

Peter Cocotos, Esquire

Florida Power and Light Company

215 South Monroe Street, Suite 810

Tallahassee, Florida 32301

For Respondent Dep artment of Environmental Protection

(ÐDEPÑ) :

Sarah M. Doar, Esquire

Benjamin Melnick, Esquire

Department of Environmental Protection

Mail Stop 35

3900 Commonwealth Boulevard

Tallahassee, Florida 32399

STATEMENT OF THE ISSUE

The issue to be determined in this case is whether the

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

reasonable exercise of its enforcement au thority.

PRELIMINARY STATEMENT

On December 23, 2014, DEP issued Administrative Order OGC

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

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

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

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

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

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

DOAH, the four cases were consolidated for hearing .

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

portions of the petitions on grounds that the petitions failed

to allege sufficient grounds for standing . The motion was

denied.

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

ame nded petition for administrative hearing. The motion was

granted except with respect to the request in ACIÓs Amended

Petition that the Administrative Law Judge recommend Ðadditional

appropriate terms and criteria to halt and remediate the ongoing

westward migration of saltwater intrusion in the Aquifer.Ñ

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

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

FPL filed a Motion for Partial Summary Recommended Order or

Alternatively for Dismissal of Peti tioner City of Miami ,

claiming the City lacked standing . The motion was denied .

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

Voluntary Dismissal. On October 30, 2015, Petitioners Tropical

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

of Voluntary Dismissal without Prejudice . Accordingly, Case

No. 15 - 1744 was closed.

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

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

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

accepted as an expert in environmental engineering ; Terri Bates,

Division Director of Water Resources at the South Florida Water

Management District (ÐSFWMDÑ), and Jefferson Giddings, a

Principal Scientist at SFWMD who was accepted as an expert in

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

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

FPL presented the testimony of Michael Sole, who is FPLÓs

Vice President of Governmental Affairs ; Steven Scroggs, a Senior

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

expert in power plant engineering, design and siting ; and

Peter Andersen, who was accepted as an expert in groundwater

hydrology and groundwater flow and transport modeling.

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

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

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

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

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

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

Edward Swakon, who was accepted as an expert in groundwater

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

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

were admitted into evidence.

The City presented the testimony of Miguel Augustin, who is

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

expert in design and function of electrical generating

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

admitted into evidence. The CityÓs motion for official

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

City Charter was accepted as a proffer.

The five - 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

Parties

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

regulated Florida Utility providing electric service to 4.7

milli on customers in 35 counties.

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

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

subject of the AO at issue in this proceeding.

3. DEP is the state agency charged with administering the

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

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

control and prohibit pollution of air and water in accordance

with the law and rules adopted and promulgated by it.

§ 403.061, Fla. Stat. (2015).

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

acres of land in southeast Miami - Dade County approximately four

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

agriculture and limerock mining on the land .

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 - of - the - Mine permit requires that

mining be terminated if monitoring d ata indicate the occurrence

of chloride concentrations greater than 250 milligrams per liter

(Ð mg/L Ñ) in the mine pit.

6. The City of Miami is a municipal corporation located

about 25 - miles north of Turkey Point.

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

withdraws the water from the Biscayne Aquifer.

Turkey Point

8. FPLÓs Turkey Point property covers approximately 9,400

acres in unincorporated Miami - Dade County , 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 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 pursuant to satisfy a 1 971

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

required FPL to terminate its 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, using evaporation,

convective heat transfer, and radiated heat loss to lower the

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

transferred to the water by flow - through heat exchangers and

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

Circulating water pumps provide counter - clockwise flow of water

from the discharge point, down (so uth) 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 reduc tion 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 to

replace water lost by evaporation and seepage comes from process

water, rain fall, stormwater runoff, and groundwater

infiltration.

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 called for

monitoring the potential impacts of the CCS.

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

state industrial wastewater permit and National Pol lution

Discharge Elimination System (ÐNPDESÑ) permit administered by

DEP. The 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 . However, because the salt in

saltwater is left behind when the water evaporates, and higher

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

becomes saltier. Salinity levels in the CCS are also affected

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

plant, and the rate of water circulation.

20. 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). Thi s is a ÐhypersalineÑ

condition, which means the salinity level is higher than is

typical for seawater, which is about 35 PSU.

21. Higher salinity makes water denser, so the hypersaline

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

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

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

Biscayne Aquifer from the deeper Upper Floridan Aquifer. The

confining layer stops the downward movement of the hypersaline

ÐplumeÑ and i t spreads out in all directions.

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

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

per day.

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

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

believes 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 . Reductions in flow and

circulation during this period associated with t he retirement of

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

contributed to i ncreased temperature s in the CCS, more

evaporation, and higher salinity .

24. ACI presented evidence suggesting that the uprate of

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

temperatures and higher salinity .

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

comprehensive or meticulous enough to eliminate reasonable

disagreement about the relative influence of the factors that

affect salin ity in the CCS.

26. 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 flo w . 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 hearing .

Saltwater Intrusion

27. Historical data show that when the CCS was constructed

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

coast due to water withdrawals, drainage and flood control

structures, and other human activities.

28. The ÐfrontÑ or westernmost line of saltwater intrusion

is referred to as the saline water interface. More

specifi cally, the saline water interface is where groundwater

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

meets groundwater with a lower chloride concentration. DEP

classifies groundwater with a TDS concentration less than 10,000

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

concentration 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 Class G - II groundwater and Class G - III

groundwater.

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

of the interceptor ditch, which runs generally along the western

boundary of the CCS. The interceptor ditch was installed when

the CCS was first constructed as a means to prevent saline

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

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

and it is still moving west.

30. The groundwater that comes from the CCS can be

identified by its tritium content because tritium occurs in

greater concentrati ons in CCS process water than occurs

naturally in groundwater. CCS water has been detected four

miles west of the CCS.

31. Saline waters from the CCS have been detected

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

CountyÓs public water su pply wellfields.

32. The hypersaline plume from the CCS is pushing the

saline water interface further west.

33. Respondents identified factors that contribute d to the

saltwater intrusion that occurred before the CCS was

constructed . However, while saltw ater intrusion has stabilized

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

the area west of the CCS .

34. Respondents made no effort to show how any factor

other than the CCS is currently c ontributing to the continuing

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

the County.

35. The preponderance of the record evidence indicates the

CCS is the major contributing cause of the continuing westward

movement of the sal ine water interface.

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

Miami - Dade County is an important natural resource that supports

marsh wetland communities and is utilized by numerous existing

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

public water supply. The Biscayne Aqu ifer 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.

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

reducing the amount of fresh gro undwater in the Biscayne Aquifer

available for natural resources and water uses.

Water Quality Violations

38. At the final hearing, a DEP administrator testified

that DEP was unable to identify a specific violation of state

groundwater o r surface water quality standards attributable to

the CCS , but DEPÓs position cannot be reconciled with the

undisputed evidence that the CCS has a groundwater 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 beneficial use of

adjacent waters.Ñ

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

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

groundwater and, therefore , is a violation of the minimum

criteria for groundwater in rule 62 - 520.400.

4 0 . In addition, sodium levels detected in monitoring

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

many times greater than the applicable G - II groundwater standard

for sodium. The preponderance of the evidence shows that the

CCS is contributing to a violation of the sodium standard.

Agency Response

4 1 . The 2008 Conditions of Certification included a

Section X, entitled ÐSurface 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 Ðdete ct changes in the quantity and

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

canal system.Ñ

4 2 . Section X .D. of the Condition s of Certification

provides in pertinent part:

If the DEP in consultation with SFWMD and

[Miami - Dade County De partment of

Environmental Resources Management]

determines that the pre - and post - Uprate

monitoring data: is insufficient to

evaluate changes as a result of this

project; indicates harm or potential harm to

the waters of the State including ecological

res ources; exceeds State or County water

quality standards; or is inconsistent with

the goals and objectives of the CERP

Biscayne Bay Coastal Wetlands Project, then

additional measures, including enhanced

monitoring and/or modeling, shall be

required to evalu ate or to abate such

impacts. Additional measures include but

are not limited to:

* * *

3. operational changes in the cooling canal

system to reduce any such impacts;

4 3 . D E P determined that the monitoring data indicates harm

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

to westward movement of the saline water interface. Under the

procedures established in the Conditions of Certification, this

determination triggered the requirement for Ðadditional

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

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

Supplemental Agreement was executed by FPL and SFWMD, which ,

among other things, requires FPL to operate the interceptor

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

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

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

that if the District determines that the interceptor ditch is

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

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

and to promptly implement those approved measures.

4 5 . SFWMD determined that the interceptor ditch is

ineffective in preventing saline waters from the CCS in deeper

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

which triggered the requirement of the Fifth Supplemental

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

4 6 . Following consultation between DEP and SFWMD, the

agencies decided that, rather tha n both agencies responding to

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

then issued the AO for that purpose.

The AO

4 7 . The AO begins with 36 Findings of Fact, many of which

are undisputed background facts about the history of Turke y

Point and the CCS.

4 8 . Also undisputed is the statement in Finding of Fact 25

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

migration of CCS saline WaterÑ and Ðthe western migration of the

saline water must be abated to prevent further harm to the

waters of the state.Ñ

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

insufficient information to identify the causes and relative

contributions of factors affecting saltwater intrusion in the

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

preponderance of the record evidence indicates the CCS is the

major contributing cause of the continuing westward movement of

the saltwater interface.

5 0 . In the ÐOrderedÑ section of the AO, FPL is required to

submit to DEP for approval a detailed CCS Salinity Management

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

Management Plan shall be to reduce the hypersalinity of the CCS

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

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

5 1 . T he goal of reducing hypersalinity of the CCS to abate

westward movement of CCS groundwater into class G - II

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

reducing and maintaining the average annual salinity of the CCS

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

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

salinity trends in four monitoring wells located near the CCS.

5 2 . Although the AO states that FPLÓs proposal to withdraw

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

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

implementation of this particular proposal. It is just one of

the options that could be proposed by FPL in its Salinity

Management Plan. 1/

5 3 . I f the succes s criteria in the AO are achieved,

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

of saltwater intrusion will be slowed, and the existing

hypersaline plume would begin to Ðfreshen .Ñ

Petitioners Ó Objections

5 4 . ACI and the City object to the AO because the success

criteria do not prevent further harm to water resources.

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

western movement of the saline water interface.

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

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

continued violation of water quality standards.

5 6 . For ACI, it doesnÓt matter when the saline water

interface will reach its property because, advancing in front of

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

salty water that is still Ðtoo saltyÑ for ACIÓs mining

operations. Years before the saline water interface reaches

ACIÓs property, ACIÓs mining operations will be disrupted by the

arrival of groundwater with a chloride c oncentration at or above

250 mg/L. 2/

CONCLUSIONS OF LAW

Standing

5 7 . To establish standing, a party must present evidence

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

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

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

58 . The City claims standing based on the doctrine of

parens patriae , which generally recognizes an inherent authority

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

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

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

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

protect its citizens against the pollution of the air over its

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

Id. at 1260.

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

local government was held to have standing under the doctrine

parens patriae to participate in a proceeding like the present

case. The Administrative Law Judge decline s the CityÓs

invitation to be the first forum in Florida to extend the

doctrine of parens patriae to allow a municipality to intervene

in a DEP enforcement action.

6 0 . The City holds no water use permit and, generally, an

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

the water or is using water pursuant to a statutory exemption

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

2d 663 (Fla. 1979) . However, in Osceola County v. St. Johns

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

1986 ) , it was held that Osceola County had standing based of the

potential effect of the decision on the CountyÓs Ð various

statutory duties and responsibilities with respect to planning

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

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

DCA 1989).

6 1 . All local governments have statutory duties and

responsibilities with respect to planning for water management

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

Therefore, based on the precedent established in Osceola County

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

has standing in this proceeding.

6 2 . ACI and the City presented competent evidence that

their substantial intere sts could be affected.

The Nature of the Proceeding

6 3 . The parties debated the nature of the proceeding that

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

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

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

necessary to effectuate the control of air and water pollution

and enforce the same by all appropriate administrative and

judicial proceedings.Ñ

6 4 . Respondents contend t he AO resolv e s a Ð violation Ñ of

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

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

something that is prohibited or failing to do something that is

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

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

section is directed to DEP, which is required to determine

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

then require additional measures to address the harm.

65. The Conditions of Certification do not say what

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

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

administrative order and a consent order. Still, Respondents

also describe the AO as a ÐpureÑ enforcement act ion .

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

enforcement action: charges. An agency enforcement action

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

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

not charge FPL with violating the minimum criteria for

groundwater, with violating the conditions of its industrial

wastewater permit, or with violating the primary groundwater

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

defend against these charge s.

6 7 . DEP cites some of its final orders that involved

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

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

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

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

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

authorization for FPL to change any facilities or operations at

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

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

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

water temperature and salinity. A permit was necessary because

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

action.

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

suited for the circumstances associated with the CCS discharge.

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

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

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

specified criteria is satis fied . The criteria pertain to

actions to come into compliance or to demonstrate why non -

compliance is justified. However, DEP did not choose this

approach.

The Meaning of the Term ÐAbateÑ

7 0 . DEP defines the term ÐabateÑ in Paragraph 37 of the AO

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

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

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

City dispute this interpretation and contend the term ÐabateÑ

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

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

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

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

in the Conditions of Certification. However, the following

analysis of the law was undertaken to show that the term

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

mean to reduce.

7 1 . T he term Ðaba teÑ is not defined in Section X.D. or

elsewhere in the Conditions of Certification . Under Section

III, the following statement appears:

The meaning of terms used herein shall be

governed by the definitions contained in

chapter 373 and 403, Florida Statute s, and

any regulation adopted pursuant thereto. In

the event of any dispute over the meaning of

a term used in these conditions which is not

defined in such statutes or regulations,

such dispute shall be resolved by reference

to the most relevant definiti ons contained

in any other relevant state or federal

statute or regulation or, in the alternative

by the use of the commonly accepted meaning

as determined by the Department.

7 2 . There is no definition of ÐabateÑ in chapter 373 or

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

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

or regulation of the Federal Government or another state. DEP

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

7 3 . Respondents made no effo rt to show the definition in

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

most commonly accepted meaning is a matter subject to objective

determination. DEP cannot simply deem a definition to be the

most commonly accepted meaning if it is not.

7 4 . In WebsterÓs New Collegiate Dictionary , the first

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

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

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

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

7 5 . However, the term s ÐabateÑ and ÐabatementÑ are

regularly used in environmental law. Therefore, choosing one of

the meanings of ÐabateÑ outside the environmental context is

unnecessary and in appropriate.

7 6 . Several environmental statutes use the phrase Ðprevent

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

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

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

4 03.191(1), Fla Stat.

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

injunctions if certain water control structures are violating

DEP or water management district standards. The meaning of

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

not merely to diminish it.

7 8 . Section 376.12(1) refers to Ðabatement of a prohibited

discharge,Ñ which means to stop the discharge.

79 . Sections 376.09 and 376.305, pertaining to the removal

of prohibited discharges, states that polluters shall

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

not free of ambiguity regarding the intended meaning of the word

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

ambiguous wording.

8 0 . Section 403.4154(3) authorizes DEP to Ðabate or

substantially reduceÑ hazards caused by phosphogypsum stacks.

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

stop and to be distinguished from Ðreduce.Ñ

8 1 . Section 403.709 refers to an Ðabatement actionÑ

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

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

the violation of waste tire regulations.

8 2 . Section 403.726 is entitled ÐAbatement of imminent

hazard caused by hazardous substanceÑ and includes a similar

statement that DEP Ðshall take and any action necessary to abate

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

the term ÐabateÑ means to stop.

8 3 . Section 403.727(1)(g) refers to statutory remedies

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

In this context, the term ÐabateÑ means to stop.

8 4 . Section 376.11(6) provides for payment of moneys from

the Florida Coastal Protection Trust Fund for Ðthe abatement of

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

hazard , not to diminish it.

8 5 . Finally, article II, section 7(a) of the Florida

Constitution provides:

It shall be the policy of the state to

conserve and protect its natural resources

and scenic beauty. Adequate provision shall

be made by law for the abateme nt of air and

water pollution and of excessive and

unnecessary noise and for the conservation

and protection of natural resources.

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

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

po llution does not sound very ambitious.

8 6 . When these uses of the term ÐabateÑ or ÐabatementÑ are

objectively considered, it is clear that the most commonly

accepted meaning for the term in Florida environmental laws is

to stop, terminate, or end.

8 7 . It is logical that a statute granting enforcement

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

harmful activity, rather than only the power to reduce the

violation or activity. Therefore, even in the statutes cited

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

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

stop.

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

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

mean DEP must always require complete res toration of the harm

caused or full compliance with a standard. DEP retains

enforcement discretion. It is a separate question whether the

circumstances in any case provide a reasonable basis for DEP to

require less than complete restoration or full compl iance.

8 9 . If the term ÐabateÑ in Section X.D. was intended by

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

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

exercising its full range of enforcement authority with respect

to harm caused by the CCS. That is an unreasonable

interpretation.

Reasonable Enforcement Discretion

9 0 . B ecause the AO purports to be an enforcement action,

the applicable standard of review in this case is whether the

action taken by the Department is a reasonable exercise of its

enforcement discretion.

9 1 . ACI and the City have the burden to prove by a

preponderance of the evidence that the AO is not a reasonable

exercise of enforcement discretion. They met their burden.

9 2 . The AO is not a reasona ble exercise of DEPÓs

enforcement discretion because FPL has not been charged with

violations of law and afforded due process to address the

charges through litigation, consent order, or settlement.

9 3 . The AO is not a reasonable exercise of DEPÓs

enforce ment discretion because, without demonstrating a

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

into compliance with standards or specify a reasonable time for

FPL to come into compliance.

9 4 . The AO is an unreasonable exercise of DEPÓs

e nforcement discretion because the success criteria are

inadequate to accomplish DEPÓs stated purposes as explained

below .

a. Maintaining Salinity at 34 PSU in the CCS

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

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

However, in the context of addressing existing harm to the

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

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

to become fresher than Biscayne Bay.

ii. The evidence presented shows that, the fresher the

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

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

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

tech nological, ecological, or other considerations support the

reasonableness of going no fresher than 34 PSU. However this

record does not show the reasonableness of restricting FPLÓs

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

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

it is practicable and could achieve greater benefits.

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

unreasonable because it forecloses all options that could

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

groundwater into Class G - II groundwater without lowering the

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

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

considering any option that achieves the goal of reducing the

westward movement of CCS groundwater.

b. Decreasing Salinity Trends in Nearby Wells

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

demonstrate Ðdecreasing salinity trendsÑ in four monitoring

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

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

success criterion even with decreasing trends that are smaller

than was predicted by the computer modeling upon which DEP

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

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

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

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

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

allows for the possibility that salinity trends near the CCS

decrease as predicted by the computer modeling, but the

predicted benefits at distance do not occur.

c . FPLÓs Contribution to the Harm

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

determination that FPL should not be required to terminate its

contribution to the westward movement of the saline water

interface. Instead, DEP stated that FPLÓs contribution had not

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

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

determine its contribution.

9 5 . All of the infirmities in the AO described above c an

be cured by amending the AO to delete the proposed success

criteria and require FPL to submit a Salini ty Management Plan

that includes an analysis of the factors contributing to the

western movement of saltier groundwater and options that could

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

would not be an enforcement instrument , but would achieve DEPÓs

apparent intent to requir e further analysis of the problem and

its solution .

9 6 . PetitionersÓ claim that DEP should take immediate

enforcement action to stop FPLÓs current violations and prevent

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

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

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

enforcement authority.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law it is

R ECOMMENDED that the Department of Environmental Protection

rescind the AO or amend it as described above.

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

Tallahassee, Leon County, Florida.

S

BRAM D. E. CANTER

Adminis trative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee 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 15th day of February , 2016 .

ENDNOTE S

1/ FPL applied to modify the Conditions of Certification to

authorize FPL to withdraw 14 mgd from the Upper Floridan Aquifer

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

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

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

Govern or and Cabinet in their capacity as the State Siting

Board.

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

considered roughly eq uivalent for the purpose of this finding .

COPIES FURNISHED:

Peter Cocotos, Esquire

Florida Power and Light Company

215 South Monroe Street, Suite 810

Tallahassee, Florida 32301

(eServed)

Sarah M. Doar, Esquire

Benjamin Melnick, Esquire

Department o f Environmental Protection

Mail Stop 35

3900 Commonwealth Boulevard

Tallahassee, Florida 32399

(eServed)

Gary V. Perko, Esquire

Brooke E. Lewis, Esquire

Hopping Green and Sams, P.A.

119 South Monroe Street , Suite 300

Tallahassee, Florida 32301

(eServed)

Andrew J. Baumann, Esquire

Rachael B. Santana, Esquire

Lewis, Longman and Walker, P.A.

515 North Flagler Drive , Suite 1500

West Palm Beach, Florida 33401

(eServed)

Edwin A. Steinmeyer, Esquire

Steinmeyer Fiveash LLP

310 West College Avenue

Tallahassee, Florida 32301

(eServed)

Kerri L. McNulty, Esquire

Matthew S. Haber , Esquire

Ruth A. Holmes, Esquire

Nicholas Basco, Esquire

City of Miami

444 S outhwest 2nd Avenue, Suite 945

Miami, Florida 33130

(eServed)

Jonathan P. Steverson, Secretary

Department o f Environmental Protection

Mail Stop 35

3900 Commonwealth Boulevard

Tallahassee, Florida 32399

(eServed)

Craig Varn, General Counsel

Department of Environmental Protection

Mail Stop 35

3900 Commonwealth Boulevard

Tallahassee, Florida 32399

(eServed)

Lea Crandall, Agency Clerk

Department of Environmental Protection

Mail Stop 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 exceptions

to this Recommended Order should be filed with the agency that

will issue the Final Order in this case.