ML16123A027

FPLs Third Notice to the Board Regarding State Administrative Proceeding

ML16123A027
Person / Time
Site:	Turkey Point
Issue date:	05/02/2016
From:	Hamrick S Florida Power & Light Co
To:	Atomic Safety and Licensing Board Panel
SECY RAS
References
50-250-LA, 50-251-LA, ASLBP 15-935-02-LA-BD01, RAS 51082
Download: ML16123A027 (65)

Text

UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION Before the Atomic Safety and Licensing Board In the Matter of

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Docket No.

50-250-LA Florida Power & Light Company

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50-251-LA

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(Turkey Point Units 3 and 4)

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ASLBP No. 15-935-02-LA-BD01 FLORIDA POWER & LIGHT COMPANYS THIRD NOTICE TO THE BOARD REGARDING STATE ADMINISTRATIVE PROCEEDING On February 17, 2016, Florida Power & Light Company (FPL) provided notice to the Board that an Administrative Law Judge considering the third-party challenge to the Administrative Order issued by the Florida Department of Environmental Protection (FDEP) to FPL had issued a Recommended Order in that matter. Following that notification, the Board requested additional post-hearing briefing on the impact of the Recommended Order in this proceeding. In light of the Boards interest in this matter, FPL submits this notification that the FDEP has issued a Final Order approving the Administrative Order. A copy of that Final Order is attached.

Respectfully Submitted, Signed (electronically) by Steven Hamrick Steven C. Hamrick Florida Power & Light Company 801 Pennsylvania Avenue, N.W. Suite 220 Washington, DC 20004 steven.hamrick@fpl.com 202-349-3496 May 2, 2016 COUNSEL FOR FLORIDA POWER & LIGHT COMPANY

STATE OF FLORIDA DEPARTMENT OF ENVIRONMENTAL PROTECTION ATLANTIC CIVIL, INC.,

Petitioner, vs.

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FLORIDA POWER AND LIGHT COMPANY

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AND DEPARTMENT OF ENVIRONMENTAL )

PROTECTION,

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Respondents.

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_____________________________)

CITY OF MIAMI, Petitioner, vs.

FLORIDA POWER AND LIGHT COMPANY AND DEPARTMENT OF ENVIRONMENTAL PROTECTION, Respondents.

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_____________________________ )

FINAL ORDER OGC CASE NO.

14-0741 DOAH CASE NO. 15-1746 DOAH CASE NO. 15-1747 On February 15, 2016, an Administrative Law Judge (ALJ) with the Division of Administrative Hearings (DOAH) submitted a Recommended Order (RO) to the Department of Environmental Protection (DEP or Department) in the above referenced administrative proceeding. A copy of the RO is attached hereto as Exhibit A. The RO was served on counsel for the Petitioners, Atlantic Civil, Inc. (ACI), and City of Miami (the City) and counsel for the Respondent, Florida Power and Light Company (FPL),

and the Respondent DEP. On March 1, FPL and DEP filed written Exceptions to the RO ATTACHMENT 1

and the City filed a written Exception to the RO. On March 11, ACI and the City responded to DEP and FPL's Exceptions. On March 11, DEP responded to the City's Exception. This matter is now on review before the Secretary of the Department for final agency action.

BACKGROUND Five electrical generating units were built at FPL's Turkey Point Power Plant in southeast Miami-Dade County. Units 1 and 2 were built in the 1960s. Unit 2 ceased operating in 2010. Units 3 and 4 are Florida's 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. The Turkey Point cooling canal system (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. FPL constructed the CCS to satisfy a 1971 consent judgment with the U.S. Department of Justice which required FPL to terminate its direct discharges of heated water into Biscayne Bay.

The CCS canals are unlined, so they have a direct connection to the groundwater. 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 causes more evaporation, the water in the CCS became saltier. Salinity levels in the CCS are also affected by rainfall, air temperature, the volume of flow from the power plant, and the rate of water circulation.

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 (PSU). This is a hypersaline condition, which means the salinity level is higher than is typical for 2

seawater, which is about 35 PSU. In late 2013, salinity levels in the CCS began to spike, reaching a high of 92 PSU in the summer of 2014. FPL took action to reduce salinity within the CCS by adding storm water from the L-31 E Canal (pursuant to emergency orders), adding water from shallow saline water wells, and removing sediment build-up in the canals to improve flow. These actions, combined with more normal rainfall, decreased salinity levels in the CCS to about 45 PSU at the time of the final hearing.

Higher salinity makes water more dense so the hypersaline water in the CCS sinks beneath the canals and to the bottom of the Biscayne 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 plume and it spreads out in all directions.

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.

The front or westernmost line of saltwater intrusion is referred to as the saline water interface. 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 moving west of the ditch. Now, the saline water interface is four or five miles west of the CCS, and it is still moving west. The hypersaline plume from the CCS is pushing the saline water interface further west.

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Fresh groundwater in the Biscayne 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 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. Saltwater intrusion into the area west of the CCS is reducing the amount of fresh groundwater in the Biscayne Aquifer available for natural resources and water uses.

The 2008 Conditions of Certification included a Section X, entitled "Surface Water, Ground Water, Ecological Monitoring," which, among other things, required FPL and the South Florida Water Management District (SFWMD) to execute a Fifth Supplemental Agreement regarding the operation and management of the CCS.1 New monitoring was required and FPL was to "detect changes in the quantity and quality of surface and ground water over time due to the cooling canal system."Section X. D. of the Conditions of Certification provides in pertinent part:

If the DEP in consultation with SFWMD and [Miami-Dade County Department 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 resources; 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, When the CCS was first constructed, FPL and SFWMD's 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.

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including enhanced monitoring and/or modeling, shall be required to evaluate 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; DEP determined that the monitoring data indicates harm to waters of the State 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 "additional measures" to require FPL to "evaluate or abate" the impacts.

The Fifth Supplemental Agreement requires FPL to operate the interceptor ditch to restrict movement of saline water from the CCS westward of Levee 31 E "to those amounts which would occur without the existence of the cooling canal system." The agreement provides that if the District determines that the interceptor ditch is ineffective, FPL and SFWMD shall consult to identify measures to "mitigate, abate or remediate" impacts from the CCS and to promptly implement those approved measures. SFWMD determined that the interceptor ditch is ineffective in preventing saline waters from the CCS in deeper zones of the Biscayne 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. Following consultation between DEP and SFWMD, the agencies decided that, rather than both agencies responding independently to address the harm caused by the CCS, DEP would take action. DEP then issued an Administrative Order to address the harm through implementation and enforcement of the Conditions of Certification.

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DOAH PROCEEDING On December 23, 2014, the DEP issued Administrative Order OGC No. 14-0741 (AO) related to the CCS. On February 9, 2015, petitions for administrative 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.

Prior to the final hearing in November 2015, Miami-Dade County; Jeffrey Mullins; and Tropical Audubon Society, Blair Butterfield, and Charles Munroe filed Notices of Voluntary Dismissal. The ALJ conducted the final hearing on November 2-4, 2015, in Miami, Florida. The five-volume transcript of the final hearing was filed with DOAH and the parties filed proposed recommended orders. The ALJ subsequently issued the RO.

SUMMARY

OF THE RECOMMENDED ORDER In the RO, the ALJ recommended that the Department enter a final order that rescinded the AO or amended it as described in the RO. (RO at page 31 and 1J 95). The ALJ concluded that the AO was an unreasonable exercise of DEP's enforcement discretion for three reasons. (RO 1J1J 92-95). First, the ALJ concluded that the AO lacked the fundamentals of an enforcement action because it did not charge a party with one or more violations of the law, which the party has the right to refute. (RO 1J1J 66 and 92).

Second, the ALJ concluded that the AO's success criteria did not require FPL to come into compliance with standards or specify a reasonable time to come into compliance.

(RO 1J 93). Third, the ALJ concluded that the AO's "success criteria are inadequate to accomplish DEP's stated purposes." (RO 1J 94).

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The ALJ found that the AO stated that western migration of saline water "must be abated to prevent further harm to the waters of the state," and that a detailed Salinity Management Plan shall have the goal of reducing hypersalinity of the CCS to abate westward movement of CCS groundwater. (RO 1J1J 48 and 50). The ALJ found that the AO defined the term "abate" as "to reduce in amount, degree or intensity; lessen; diminish." (RO 1J 70). However, the ALJ disagreed with the DEP's position that the AO's definition of "abate" was consistent with the meaning of the term in Section X. D. of the Conditions of Certification. (RO 1J1J 70-89). The ALJ ultimately found that "[i]f the success 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 freshen." (RO 1J 53).

STANDARDS OF REVIEW OF DOAH RECOMMENDED ORDERS Section 120.57(1 )(1), Florida Statutes, prescribes that an agency reviewing a recommended order may not reject or modify the findings of fact of the ALJ "unless the agency first determines from a review of the entire record, and states with particularity in the order, that the findings of fact were not based on competent substantial evidence."

§ 120.57(1)(1), Fla. Stat. (2015); Charlotte Cty. v. fMC Phosphates Co., 18 So. 3d 1089 (Fla. 2d DCA 2009); Wills v. Fla. Elections Comm'n, 955 So. 2d 61 (Fla. 1st DCA 2007).

The term "competent substantial evidence" does not relate to the quality, character, convincing power, probative value or weight of the evidence. Rather, "competent substantial evidence" refers to the existence of some evidence as to each essential element and as to its admissibility under legal rules of evidence. See e.g., Scholastic 7

Book Fairs, Inc. v. Unemployment Appeals Comm'n, 671 So. 2d 287, 289 n.3 (Fla. 5th DCA 1996); Nunez v. Nunez, 29 So. 3d 1191, 1192 (Fla. 5th DCA 201 0).

A reviewing agency may not reweigh the evidence presented at a DOAH final hearing, attempt to resolve conflicts therein, or judge the credibility of witnesses. See, e.g., Rogers v. Dep't of Health, 920 So.2d 27, 30 (Fla. 1st DCA 2005); Belleau v. Dep't of Envtl. Prot., 695 So. 2d 1305, 1307 (Fla. 1st DCA 1997); Dunham v. Highlands Cty.

Sch. Bd., 652 So. 2d 894 (Fla. 2d DCA 1995). If there is competent substantial evidence to support an ALJ's findings of fact, it is irrelevant that there may also be competent substantial evidence supporting a contrary finding. See, e.g., Arand Construction Co. v.

Dyer, 592 So. 2d 276, 280 (Fla. 1st DCA 1991 ); Conshor, Inc. v. Roberts, 498 So. 2d 622 (Fla. 1st DCA 1986).

The ALJ's decision to accept the testimony of one expert witness over that of another expert is an evidentiary ruling that cannot be altered by a reviewing agency, absent a complete lack of any competent substantial evidence of record supporting this decision. See, e.g., Peace River/Manasota Regional Water Supply Authority v. fMC Phosphates Co., 18 So. 3d 1079, 1088 (Fla. 2d DCA 2009); Collier Med. Ctr. v. State, Dep't of HRS, 462 So. 2d 83, 85 (Fla. 1st DCA 1985); Fla. Chapter of Sierra Club v.

Orlando Utils. Comm'n, 436 So. 2d 383, 389 (Fla. 5th DCA 1983). In addition, an agency has no authority to make independent or supplemental findings of fact. See, e.g., North Port, Fla. v. Con sol. Minerals, 645 So. 2d 485, 487 (Fla. 2d DCA 1994 ); Fla.

Power & Light Co. v. Fla. Siting Bd., 693 So. 2d 1025, 1026-1027 (Fla. 1st DCA 1997).

Section 120.57(1 )(1), Florida Statutes, authorizes an agency to reject or modify an ALJ's conclusions of law and interpretations of administrative rules "over which it has 8

substantive jurisdiction." See Barfield v. Dep't of Health, 805 So. 2d 1008 (Fla. 1st DCA 2001 ); LB. Bryan & Co. v. Sch. Bd. of Broward Cty., 746 So. 2d 1194 (Fla. 1st DCA 1999); Deep Lagoon Boat Club, Ltd. v. Sheridan, 784 So. 2d 1140 (Fla. 2d DCA 2001 ).

Considerable deference should be accorded to these agency interpretations of statutes and rules within their regulatory jurisdiction, and such agency interpretations should not be overturned unless "clearly erroneous." See, e.g., Falk v. Beard, 614 So. 2d 1086, 1089 (Fla. 1993); Dep't of Envtl. Reg. v. Goldring, 477 So. 2d 532, 534 (Fla. 1985).

Furthermore, agency interpretations of statutes and rules within their regulatory jurisdiction do not have to be the only reasonable interpretations. It is enough if such agency interpretations are "permissible" ones. See, e.g., Suddath Van Lines, Inc. v.

Dep't of Envtl. Prot., 668 So. 2d 209, 212 (Fla. 1st DCA 1996).

If an ALJ improperly labels a conclusion of law as a finding of fact, the label should be disregarded and the item treated as though it were actually a conclusion of law. See, e.g., Battaglia Properties v. Fla. Land and Water Adjudicatory Comm'n, 629 So. 2d 161, 168 (Fla. 5th DCA 1994 ). However, neither should the agency label what is essentially an ultimate factual determination as a "conclusion of law" in order to modify or overturn what it may view as an unfavorable finding of fact. See, e.g., Stokes v.

State, Bd. of Prof'/ Eng'rs, 952 So. 2d 1224 (Fla. 1st DCA 2007).

Agencies do not have jurisdiction, however, to modify or reject rulings on the admissibility of evidence. Evidentiary rulings of the ALJ that deal with "factual issues susceptible to ordinary methods of proof that are not infused with [agency] policy considerations," are not matters over which the agency has "substantive jurisdiction."

See Martuccio v. Dep't of Prof'/ Reg., 622 So. 2d 607, 609 (Fla. 1st DCA 1993); Heifetz 9

v. Dep't of Bus. Reg., 475 So. 2d 1277, 1281 (Fla. 1st DCA 1985). Evidentiary rulings are matters within the ALJ's sound "prerogative... as the finder of fact" and may not be reversed on agency review. See Martuccio, 622 So. 2d at 609.

RULINGS ON EXCEPTIONS A party that files no exceptions to certain findings of fact "has thereby expressed its agreement with, or at least waived any objection to, those findings of fact." Envtl.

Coalition of Fla., Inc. v. Broward Cty., 586 So. 2d 1212, 1213 (Fla. 1st DCA 1991 ); see also Colonnade Medical Ctr., Inc. v. State of Fla., Agency for Health Care Admin., 847 So. 2d 540, 542 (Fla. 4th DCA 2003). However, an agency head reviewing a recommended order is free to modify or reject any erroneous conclusions of law over which the agency has substantive jurisdiction, even when exceptions are not filed. See

§ 120.57(1 )(1), Fla. Stat. (2014); Barfield v. Dep't of Health, 805 So. 2d 1008 (Fla. 1st DCA 2001 ); Fla. Public Employee Council, 79 v. Daniels, 646 So. 2d 813, 816 (Fla. 1st DCA 1994).

Finally, in reviewing a recommended order and any written exceptions, the agency's final order "shall include an explicit ruling on each exception."

See§ 120.57(1 )(k), Fla. Stat. (2015). However, the agency need not rule on an exception that "does not clearly identify the disputed portion of the recommended order by page number or paragraph, that does not identify the legal basis for the exception, or that does not include appropriate and specific citations to the record." /d.

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RESPONDENTS' EXCEPTIONS Enforcement discretion It is well recognized that the choice of an enforcement remedy is committed to an administrative agency's discretion and is a matter of enforcement policy unsuitable for judicial review. See Heckler v. Chaney, 470 U.S. 821, 831 (1985); Chau v. Securities and Exchange Comm'n, ---F. Supp. 3d---, 2014 WL 6984236 *13 (S.D.N.Y. 2014)

("Congress has provided the SEC with two tracks on which it may litigate certain cases.

Which of those paths to choose is a matter of enforcement policy squarely within the SEC's province."). Similarly, at the state level, enforcement procedures and remedies are left to the Department's prosecutorial discretion and is not an appropriate subject for DOAH review. See, e.g., Sarasota Cnty. v. Dep't of Envtl. Regulation and Falconer, 9 F.A.L.R. 1822 (Fla. Dep't Envtl. Reg. 1986); Cobb v. Dep't of Envtl. Regulation, 1988 WL 618161 *6 (Fla. Dept. of Env. Reg. 1988); Christensen v. Smith and Dep't of Envtl.

Regulation, 1996 WL 533981 (Fla. Dept. of Env. Reg. 1996).

In Chapter 403, the Legislature authorized the Department to pursue various enforcement remedies, including that the Department may "[i]ssue such orders as are necessary to effectuate the control of air and water pollution and enforce the same by all appropriate administrative and judicial proceedings." § 403.061 (8), Fla. Stat. (2015).

Section 403.061 (8) has been recognized by the courts as an enforcement remedy available to the Department. See, e.g., Save Our Suwannee, Inc. v. State of Fla. Dep't of Envtl. Prot., No. 2001-CA-001266 (Fla. 2d Cir. Ct. March 5, 2004), aff'd 898 So. 2d 943 (Fla. 1st DCA 2005).

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In this case the AO was issued after it was determined that the monitoring data indicated harm to waters of the State 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 "additional measures" to require FPL to "evaluate or abate" the impacts. (RO 111142-43).

The ALJ described the AO in paragraphs 47 through 52 of the RO. The ALJ found that the AO states that western migration of saline water "must be abated to prevent further harm to the waters of the state," and that a detailed Salinity Management Plan shall have the goal of reducing hypersalinity of the CCS to abate westward movement of CCS groundwater. (RO 1111 48 and 50). The ALJ ultimately found that "[i]f the success 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 'freshen."' (RO 1153).

Chapter 403 is a remedial statute enacted for the public benefit, although containing some penal provisions. See, e.g., Ranger Insurance Co. v. Bal Harbour Club, Inc., 509 So. 2d 940, 943 (Fla. 3d DCA 1985). "The test most often articulated for determining whether a particular provision of legislation is penal in character is whether the legislative aim in providing the sanction was to punish the individual for engaging in the activity involved or to regulate the activity in question." /d. at 943. The Department's choice to exercise its authority at this time in favor of remediation to protect the public health than in favor of punishment by charges and fines is a matter of enforcement discretion squarely within the Department's province. See, e.g., Dep't of Envtl. Prot. v.

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South Palafox Props., LLC, Case No. 14-3674 (Fla. DOAH March 2, 2015; Fla. DEP May 29, 2015).

The RO reflects that the ALJ inappropriately invaded this exclusive province of the Department to choose an enforcement remedy by essentially finding that he would have chosen the penal remedy that charges FPL with "one or more violations of law."

(RO 1f66).2 Because of his opinion that a charging document was more appropriate, the ALJ concluded that the AO was not a reasonable exercise of enforcement discretion, which contained "infirmities" and should be rescinded. (RO 1f1f92-95).

The ALJ also concluded that Section 403.088(2)(e) "gives the DEP enforcement authority suited for [this] circumstance," but "DEP did not choose this approach." (RO 1f 69). However, the plain language of Section 403.088(2)(e) gives the Department permitting authority to issue certain discharge permits under certain circumstances. The Department's final order in Lane, eta/. v. Department of Environmental Protection, Case Nos. 05-1609, etc. (Fla. DOAH May 11, 2007; Fla. DEP Aug. 8, 2007), explained this permitting authority:

The provisions of Section 403.088(2) (e) and (f), F. S.,

express the clear intent of the Florida Legislature to provide the DEP with the authority to issue permits that do not meet all the regular standards for the proposed activity, provided that at least one of the stated conditions of the statutory provision is met. Consequently, Sections 403.088(2) (e) and (f), constitute a limited statutory exception to the "reasonable assurance" permitting requirement set forth in Rule 62-4.070, F.A.C. See e.g. Valencic v. Miami-Dade County Water and Sewer Dept., 23 FALR 1966, 1969 (Fla. DEP 2001 ), aft. 803 So.2d 719 (Fla. 1st DCA 2001 ).

2 Administrative enforcement is also authorized under the provisions of Section 403.121(2), Florida Statutes. This enforcement remedy is instituted by issuing a written notice of violation containing allegations (charges) regarding violations of the law. See§ 403.121 (2), Fla. Stat. (2015).

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Lane, eta/. v. Dep'tofEnvtl. Prot., Case Nos. 05-1609, etc. (Fla. DOAH May 11, 2007; Fla. DEP Aug. 8, 2007), per curiam dismissed 44 So. 3d 650 (Fla. 1st DCA 2010).

Contrary to the ALJ's conclusions in paragraphs 66, 69, 92-95, and as discussed above, the AO is an enforcement instrument authorized under Section 403.061 (8). It contains findings, and it requires FPL to comply with Condition of Certification X. D. by submitting and implementing a Salinity Management Plan that will achieve the goals and timelines specified in the AO. (RO ~~ 47-53; Joint Ex. 1 ). And, its provisions can be enforced by appropriate administrative and judicial proceedings. See§ 403.061 (8), Fla.

Stat. (2015). This legal conclusion interpreting Chapter 403, Florida Statutes, is as or more reasonable than those of the ALJ. See, e.g., Fla. Audubon Soc. v. Sugar Cane Growers Coop. of Fla., 171 So. 3d 790, 797 (Fla. 2d DCA 2015) (reflecting that an agency bears the primary responsibility to interpret statutes within its regulatory expertise and jurisdiction).

Reasonable exercise of enforcement discretion The ALJ identified three reasons for concluding that the AO is an unreasonable exercise of DEP's enforcement discretion. (RO ~~ 92-95). First, the ALJ concluded that the AO is procedurally flawed because it is not a charging document. (RO ~~ 66 and 92). As discussed above, the ALJ's conclusion that the AO must be a charging document is rejected. Also, as the ALJ points out, since the AO was not a charging document, "FPL did not come to the final hearing to defend against these charges." (RO

~ 66).

Second, the ALJ concluded that the AO's success criteria do not require FPL to come into compliance with standards or specify a reasonable time to come into 14

compliance. (RO ~ 93). This reason paraphrases the secondary authority cited for the AO in its opening paragraph. (Joint Ex. 1 ). Section 403.151 provides that "[a]ll rules or orders of the department which require action to comply with standards adopted by it, or orders to comply with any provisions of this act, may specify a reasonable time for such compliance." § 403.151, Fla. Stat. (2015). Having found that the AO "does not authorize any action" (RO ~ 68), the ALJ then goes on to conclude that the AO does not represent the first category of orders described in Section 403.151. However, as an order designed to effectuate (i.e., bring about) the control of water pollution the AO represents the second category of order described in Section 403.151 and authorizes that such orders "may specify a reasonable time for... compliance." See§§ 403.151 and 403.061(8), Fla. Stat. (2015). This legal conclusion interpreting Chapter 403, is as or more reasonable than that of the ALJ. See, e.g., Fla. Audubon Soc. v. Sugar Cane Growers Coop. ofF/a., 171 So. 3d 790, 797 (Fla. 2d DCA 2015) (reflecting that an agency bears the primary responsibility to interpret statutes within its regulatory expertise and jurisdiction).

The third reason identified by the ALJ for concluding that the AO is an unreasonable exercise of DEP's enforcement discretion, is that the AO's "success criteria are inadequate to accomplish DEP's stated purposes." (RO ~ 94). The ALJ's conclusions in paragraph 94 must be rejected because they are based on mistakes of fact and law regarding the AO's stated purpose and the success criteria. (Joint Ex. 1 ).

The ALJ found that the AO states that western migration of saline water "must be abated to prevent further harm to the waters of the state," and that a detailed Salinity Management Plan shall have the goal of reducing hypersalinity of the CCS to abate 15

westward movement of CCS groundwater. (RO ~m 48 and 50). The ALJ acknowledges that the AO defines the term "abate" as "to reduce in amount, degree or intensity; lessen; diminish." (RO 1170). However, the ALJ disagrees with the DEP's position that the AO's definition of "abate" is consistent with the meaning of the term in Section X. D.

of the Conditions of Certification. (RO W 70-89). And since the AO purports to implement and enforce Section X. D., the ALJ concluded that the AO does not "eliminate the CCS's contribution" to the "western movement of saltier groundwater." (RO 1195).

Contrary to the ALJ's conclusion, the record reflects that the DEP's interpretation of the Conditions of Certification is supported by competent substantial evidence (T.

Vol. II, p. 157; Joint Exhibit 1 ). Also, the DEP's interpretation is within the agency's substantive jurisdiction to "administer and manage" the Conditions of Certification, and to assure compliance with those Conditions. See§§ 403.504(14) and 403.514, Fla.

Stat. (2015). The Department's legal conclusion interpreting the AO and the Conditions of Certification is more reasonable than that of the ALJ. See, e.g., Fla. Audubon Soc. v.

Sugar Cane Growers Coop. of Fla., 171 So. 3d 790, 797 (Fla. 2d DCA 2015) (reflecting that an agency bears the primary responsibility to interpret statutes within its regulatory expertise and jurisdiction).

In paragraph 53, the ALJ specifically found that "[i]f the success 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 freshen." (RO 1153). Despite this finding, the ALJ concluded that the 34 PSU "success criterion" is not reasonable based on a mistaken belief that "it could be an unnecessary impediment" that would preclude FPL from proposing to "lower the salinity in the CCS 16

even further if it is practical and could achieve greater benefits." (RO,-r 94.a.i. through 94.a.iii). The ALJ's conclusion is based on a mistake of fact reflected in paragraph 51.

The record shows that the AO expressly contemplates that FPL may reduce CCS salinity below 34 PSU. (Joint Ex. 1, at paragraphs 42 and 43).

Contrary to the ALJ's conclusion, the Department finds that the 34 or below PSU success criterion is a reasonable exercise of enforcement discretion, for the reasons explained by the ALJ in paragraphs 94.a.i. through 94.a.iii. This legal conclusion is more reasonable than that of the ALJ. See, e.g., Fla. Audubon Soc. v. Sugar Cane Growers Coop. of Fla., 171 So. 3d 790, 797 (Fla. 2d DCA 2015) (reflecting that an agency bears the primary responsibility to interpret statutes within its regulatory expertise and jurisdiction).

In paragraph 51, the ALJ also found that the AO's second success criterion was to demonstrate "decreasing salinity trends in four monitoring wells located near the CCS." (RO,-r 51). The ALJ concludes that this success criterion is not reasonable because the decreasing trend is not quantified. (RO,-r 94.b.i.). Yet, at the same time, the ALJ acknowledges that the achievement of this success criterion is related to the computer modeling relied on by DEP. (RO,-r 94.b.ii.). The ALJ's analysis does not fully represent the requirements of the AO with regard to this success criterion. The AO requires that monitoring of salinity trends also include installation and monitoring of a new deep well "at the City of Homestead" in addition to the four monitoring wells located near the CCS. (Joint Ex. 1, paragraphs 37.a. and 37.f.). The AO also requires continued monitoring of "the wells/well clusters identified in the 2009 Monitoring Plan, as Amended." (Joint Ex. 1, paragraph 37.f.). The ALJ's findings and conclusions do not 17

form a basis for finding that the AO's second success criterion is unreasonable. This legal conclusion is more reasonable than that of the ALJ. See, e.g., Fla. Audubon Soc.

v. Sugar Cane Growers Coop. of Fla., 171 So. 3d 790, 797 (Fla. 2d DCA 2015)

(reflecting that an agency bears the primary responsibility to interpret statutes within its regulatory expertise and jurisdiction).

In paragraphs 94.c. and 95, the ALJ's conclusion that the AO should require FPL to determine and terminate its contribution to the westward movement of the saline water interface relates back to his disagreement with the Department's definition of "abate" in the AO and the Conditions of Certification. As discussed above, the ALJ's disagreement is rejected and the AO's definition of "abate" is found to be a reasonable interpretation of the term as used in Section X. D. of the Conditions of Certification.

DEP Exception No.2 DEP takes exception to a portion of paragraph 51 as not supported by competent substantial evidence. DEP argues that the plain language of the AO reflects that the first success criterion is to maintain salinity at or below 34 PSU. As discussed above, the ALJ's finding is a mistake of fact that is not supported by competent substantial evidence. In fact the competent substantial evidence supports modifying the ALJ's finding to accurately reflect the requirement of the AO's first success criterion (Joint Ex.

1, paragraphs 42 and 43); see§ 120.57(1 )(1), Fla. Stat. (2015).

Therefore, based on the foregoing reasons, DEP's Exception No. 2 to a portion of paragraph 51, is granted.

18

DEP Exception No. 4; FPL Exception No. 4 DEP takes exception to paragraphs 66 through 69 on the basis that they would intrude on the exclusive province of the Department to determine enforcement procedures and remedies. FPL takes exception to paragraphs 64 through 66, 92 and 93, on the basis that the ALJ misconstrued the nature of the AO. FPL argues that the ALJ failed to recognize the AO as a mechanism for enforcing and implementing the Conditions of Certification and erroneously concluded that it was not a reasonable exercise of enforcement discretion.

FPL specifically argues that in paragraph 64, the ALJ erroneously concludes that Condition X.D. is only directed at the Department. As FPL points out, the Condition, by its terms, is focused on potential harm to waters of the state caused by the CCS.

Ultimately, FPL must implement "additional measures" to "abate" such impacts. (Joint Ex. 1, paragraph 25; Joint Ex. 2,Section X. D. of Conditions of Certification). Thus, the ALJ's conclusion in paragraph 64 that Condition X. D. is directed only to the Department is not a reasonable interpretation of its plain language. The interpretation of Condition X.D. is within the Department's substantive jurisdiction. Therefore, FPL's exception to paragraph 64 is granted.

FPL's exception to paragraph 65 is denied because the paragraph accurately describes the Conditions of Certification and the Respondents' arguments in the hearing.

The Respondents' exception to paragraph 66 is granted for the reasons discussed above; the AO is a type of enforcement remedy, but it is not a charging document.

19

DEP's exceptions to paragraphs 67 and 68 are denied because the paragraphs accurately describe the parties' arguments during the hearing.

DEP's exception to paragraph 69, where the ALJ states that Section 403.088(2)(e) gives DEP enforcement authority, is granted for the reasons discussed above.

FPL's exception to paragraphs 92 and 93 is granted for the reasons discussed above.

DEP Exception No. 6; FPL Exception Nos. 6 and 7 DEP takes exception to paragraphs 90 through 95 and FPL takes exception to paragraphs 91 and 94. As discussed above, these conclusions of the ALJ reflect his enforcement discretion analysis.

DEP's exception to paragraph 90 is denied because, as discussed above, the AO is an enforcement remedy that is subject to the reasonable exercise of enforcement discretion standard. The Respondents' exception to paragraph 91 is granted because the above discussion shows that the ALJ's three identified reasons for concluding that the AO is an unreasonable exercise of DEP's enforcement discretion (RO 1J1J 92-95) are flawed. For those same reasons, the exceptions to paragraphs 92, 93, and 94, are granted.

DEP Exception No. 5; FPL Exception No. 5 DEP takes exception to paragraphs 70-89 and FPL takes exception to paragraphs 73-89 regarding the ALJ's analysis of the term "abate." For the reasons discussed above, the Department's legal conclusion interpreting the AO and the Conditions of Certification as having a consistent definition for "abate," is more 20

reasonable than that of the ALJ. See, e.g., Fla. Audubon Soc. v. Sugar Cane Growers Coop. ofF/a., 171 So. 3d 790, 797 (Fla. 2d DCA 2015) (reflecting that an agency bears the primary responsibility to interpret statutes within its regulatory expertise and jurisdiction).

Therefore, for the foregoing reasons, the exceptions to paragraphs 70-89 are granted.

Water quality violations DEP Exception Nos. 1 and 7; FPL Exception No. 3 The Respondents take exception to paragraphs 38-40 and related portions of paragraphs 92 and 96. In paragraphs 38-40, the ALJ made the following findings of fact:

38. At the final hearing, a DEP administrator testified that DEP was unable to identify a specific violation of state groundwater or surface water quality standards attributable to the CCS, but DEP's 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 "Minimum Criteria for Ground Water,"

prohibits a discharge in concentrations that "impair the reasonable and beneficial use of adjacent waters."

39. Saltwater intrusion into the area west of the CCS is impairing the reasonable and beneficial use of adjacent G-Il groundwater and, therefore, is a violation of the minimum criteria for groundwater in rule 62-520.400.

40. In addition, sodium levels detected in monitoring wells west of the CCS and beyond FPL's zone of discharge are many times greater than the applicable G-Il groundwater standard for sodium. The preponderance of the evidence shows that the CCS is contributing to a violation of the sodium standard.

The Respondents essentially argue that the ALJ should not have made independent findings regarding violations of water quality standards because of potential due 21

process problems identified by the ALJ in other paragraphs of the RO. (RO 1f1f66 and 92). DEP also argues that the findings in paragraphs 38-40 are internally inconsistent with the conclusions in paragraph 92. However, for the reasons discussed above, the ALJ's conclusions in paragraph 92 that the AO must be a charging document was rejected. DEP's exception to paragraph 92 was granted for the reasons discussed in the ruling on DEP Exception No. 6 above.

The conclusion that the AO is an enforcement remedy available to the Department, although not a charging document, does not preclude the ALJ's factual findings in paragraphs 38-40 and the reference to "current violations" in paragraph 96.

The factual findings in paragraphs 38-40 are based on competent substantial evidence adduced at the hearing. (T. Vol. 1, p. 127; Joint Ex. 3; T. Vol. II, p. 209, lines 4-8, pp.

279-280; DEP Ex. 7; ACI Exs. 11 and 66). Most of that evidence formed the basis for the Department's finding of harm under Section X.D. of the Conditions of Certification leading to issuance of the AO. (T. Vol. 1, p. 127; Joint Ex. 3; T. Vol. II, pp. 279-280; ACI Ex. 11; DEP Ex. 7; ACI Ex. 66); see§ 120.57(1 )(1), Fla. Stat. (2015); Heifetz v. Dep't of Bus. Reg., 475 So. 2d 1277, 1281 (Fla. 1st DCA 1985).

Therefore, based on the foregoing reasons, the Respondents' exceptions to paragraphs 38-40, and 96, are denied.

FPL'S REMAINING EXCEPTIONS FPL Exception No. 1 FPL takes exception to paragraph 34, where the ALJ found that "Respondents made no effort to show how any factor other than the CCS is currently contributing to the continuing westward movement of the saline water interface in this area of the 22

County." (RO ~ 34). FPL argues that there is no competent substantial record evidence to support this finding. FPL cites to testimony from DEP and SFWMD witnesses to argue that there is competent substantial evidence regarding other factors. (T. Vol. 1, pp. 123-125; T. Vol. II, pp. 250-251). However, paragraph 34 is a reasonable inference from the totality of the witnesses' testimony. (T. Vol. 1, pp. 123-125; T. Vol. II, pp. 194-196; 239-240; T. Vol. II, pp. 250-251, 261-266); see§ 120.57(1 )(I), Fla. Stat. (2015);

Heifetz v. Dep'tofBus. Reg., 475 So. 2d 1277, 1281 (Fla. 1st DCA 1985).

Therefore, based on the foregoing reasons, FPL's exception to paragraph 34 is denied.

FPL Exception No. 2 FPL takes exception to paragraphs 35, 49, and the second sentence of paragraph 54. FPL argues that these findings of fact are not supported by competent substantial evidence and are irrelevant to the disposition of this proceeding.

Contrary to FPL's argument, these findings of fact are supported by competent substantial record evidence. (T. Vol. I, p. 127, lines 19-20; T. Vol. I, p. 130, lines 17-19; Joint Ex. 1, paragraph 25; T. Vol. II, p. 250, lines 16-20; T. Vol. Ill, p. 403, lines 8-12; T.

Vol. Ill, pp. 408-410); see§ 120.57(1)(1), Fla. Stat. (2015); Heifetz v. Dep'tofBus. Reg.,

475 So. 2d 1277, 1281 (Fla. 1st DCA 1985).

Therefore, based on the foregoing reasons, FPL's exception to paragraphs 35, 49, and the second sentence of paragraph 54, is denied.

23

Standing DEP Exception No. 3 DEP takes exception to paragraphs 60-62 of the RO, where the ALJ concluded that the City of Miami and ACI established standing. DEP argues that in paragraph 60 the ALJ "mischaracterizes the holding in Osceola County v. St. Johns River Water Management District, 486 So. 2d 616 (Fla. 5th DCA 1986)." See DEP's Exceptions at page 5. That case arose from a petition for writ of prohibition filed with a district court of appeal and the question concerned the petitioner's standing to seek the writ of prohibition. See Osceola Cty. v. St. Johns River Water Mgmt. Dist., 486 So. 2d 616, 617 (Fla. 5th DCA 1986) ("Respondent challenges Osceola County's standing to seek this writ."). DEP further argues that in paragraph 61, the ALJ incorrectly applied the Osceola County decision because the authority of a local government to approve a comprehensive plan under Chapter 163, Florida Statutes, is not within the zone of interests protected by the Department's Chapter 403 regulatory programs. The court in Osceola County did not address the question of standing to seek a Section 120.57(1) administrative hearing. However, in the other case cited by the ALJ in paragraphs 60 and 61, the court found that the City of St. Cloud's petition demonstrated standing. See South Fla. Water Mgmt. Dist. v. City of St. Cloud, 550 So. 2d 551, 552 (Fla. 5th DCA 1989). The City of St. Cloud's petition alleged that it had a substantial interest in the quality and availability of its water supply and that this interest would be adversely affected by the proposed water wells' construction. /d. at 553.

Therefore, the ALJ's conclusions of law in paragraphs 60 and 61 are modified to reject any reliance on the Osceola County case to answer the question of the City's 24

standing to seek a Section 120.57 administrative hearing. This conclusion of law is more reasonable than that of the ALJ because the question involves the Department's interpretation of Chapter 403, including the scope of interests protected by Chapter 403 proceedings. See Friends of the Everglades v. Bd. of Trustees of the Internal Improvement Trust Fund, 595 So. 2d 186, 189 (Fla. 1st DCA 1992) (reflecting that the statute defines the scope or nature of the proceeding); Reily Enters., LLC v. Dep't of Envtl. Prot., 990 So. 2d 1248, 1251 (Fla. Fourth DCA 2008) (reflecting that the Department's Secretary reversed the ALJ's legal conclusion regarding standing).

In paragraph 62, the ALJ ultimately determined that "ACI and the City presented competent evidence that their substantial interests could be affected." (RO 1J 62). The ALJ's conclusion of law in paragraph 57 stated that "[t]o establish standing, a party must present evidence to show that its substantial interests could be affected." (RO 1J 57).

See St. Johns Riverkeeper, Inc. v. St. Johns River Water Mgmt. Dist., 54 So. 3d 1051,

1054 (Fla. 5th DCA 2011 ). Paragraph 62 is an ultimate factual finding that is supported by the ALJ's underlying findings of fact in paragraphs 4, 5, 6, 7, 31, 32, 36, 37, 56, and by competent substantial record evidence (T. Vol. II, pp. 300-302; City Ex. 40; Prehearing Stip.Section V.1f1f W-X; ACI Exs. 8 and 9).

Therefore, based on the foregoing reasons, the DEP's Exception No. 3 is granted as to paragraphs 60 and 61, which are modified as discussed above; and denied as to paragraph 62.

City of Miami's Exception No. 1 The City takes exception to paragraphs 58 and 59 of the RO, where the ALJ concluded that the doctrine of parens patriae does not allow a municipality to claim 25

standing to intervene in a DEP enforcement action. (RO 1f 59). The City asserts that the ALJ should have extended the doctrine of parens patriae to encompass the City's standing to challenge the administrative order on behalf of its citizens. The City acknowledges that the ALJ ultimately held that the City had standing independent of parens patriae. However, the City filed this exception to "preserve the City's right to appellate review on a pure conclusion of law." See City's Exception at pages 1-2.

The ALJ's conclusions in paragraphs 58 and 59 are supported by the Florida Supreme Court precedent cited in paragraph 58 and by prior Department final orders.

See Engle v. Liggett Group, Inc., 945 So. 2d 1246 (Fla. 2006); see e.g., Hamilton Cty.

Bd. ofCty. Comm'rs v. TSI Southeast, Inc., and Dep'tofEnvtl. Reg., 12 F.A.L.R. 3774 (Fla. Dept. of Env. Reg. 1990), aff'd, 587 So. 2d 1378 (Fla. 1st DCA 1991 ). Therefore, the City of Miami's Exception No. 1 is denied.

CONCLUSION Contrary to the ALJ's legal conclusions, the AO is an enforcement instrument authorized under Section 403.061 (8). It contains findings, and it requires FPL to comply with Condition of Certification X. D. by submitting and implementing a Salinity Management Plan that will achieve the goals and timelines specified in the AO. (RO 1f1f 47-53; Joint Ex. 1 ). The AO's provisions can be enforced by appropriate administrative and judicial proceedings. See§ 403.061(8), Fla. Stat. (2015). The AO is a reasonable exercise of the Department's enforcement discretion under Sections 403.061(8) and 403.151. Thus, the ALJ recommendation to rescind the AO as an unreasonable exercise of enforcement discretion, or amend it as suggested in the RO, is rejected.

26

Notwithstanding the ultimate conclusion below, the record developed during this case raises issues of environmental concern which require further consideration.

Accordingly, Department staff shall consider the findings of this order, specifically those related to the findings in the RO at paragraphs 38-40, as well as any other additional information staff might have available at this time, and take any further action as is necessary.

Having considered the applicable law in light of the written exceptions, responses, and the above rulings, and being otherwise duly advised, it is ORDERED that:

A. The Recommended Order (Exhibit A) is adopted, except as modified by the above rulings, and incorporated herein by reference.

B. The Department's Administrative Order issued on December 23, 2014, is hereby APPROVED.

JUDICIAL REVIEW Any party to this proceeding has the right to seek judicial review of the Final Order under section 120.68, Florida Statutes, by filing of a Notice of Appeal under rule 9.110 and 9.190, Florida Rules of Appellate Procedure, with the Agency Clerk of the Department in the Office of General Counsel, 3900 Commonwealth Boulevard, M.S. 35, Tallahassee, Florida 32399-3000; and by filing a copy of the Notice of Appeal accompanied by the applicable filing fees with the appropriate District Court of Appeal.

27

The Notice of Appeal must be filed within 30 days from the date this Final Order is filed with the Agency Clerk.

DONE AND ORDERED this j1 ~day of April, 2016, in Tallahassee, Florida.

FILED ON THIS DATE PURSUANT TO§ 120.52, FLORIDA STATUTES, WITH THE DESIGNATED DEPARTMENT CLERK, RECEIPT OF WHICH IS HEREBY ACKNOWLEDGED.

Lj-;)1 -/(p DATE 28 STATE OF FLORIDA DEPARTMENT OF ENVIRONMENTAL PROTECTION JONATHAN P. STEVERSON Secretary Marjory Stoneman Douglas Building 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000

CERTIFICATE OF SERVICE I CERTIFY that a copy of the foregoing Final Order has been sent by electronic mail to:

Gary V. Perko, Esquire Douglas S. Roberts, Esquire Jonathan Harrison Maurer, Esquire Hopping Green & Sams, P.A.

P.O. Box 6526 Tallahassee, FL 32314 garyp@hgslaw.com douglasr@hgslaw.com Kerri L. McNulty, Esquire MatthewS. Haber, Esquire Ruth A. Holmes, Esquire Nicholas Basco, Esquire City of Miami 444 Southwest 2nd Avenue Suite 945 Miami, FL 33130 klmcnulty@miamigov.com mshaber@miamigov.com npbasco@miamiagov.com and by electronic filing to:

Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550

~

this~\\day of April, 2016.

29 Andrew J. Baumann, Esquire Rachel B. Santana, Esquire Lewis, Longman and Walker, P.A.

515 North Flagler Drive, Suite 1500 West Palm Beach, FL 33401 abaumann@llw-law.com rsantana@llaw-law.com Edwin A. Steinmeyer, Esquire Steinmeyer Fiveash, LLP 310 West College Avenue Tallahassee, FL 32301 eas@steinmeyerfiveash. com Jeffrey Brown, Esquire Department of Environmental Protection 3900 Commonwealth Blvd., MS 35 Tallahassee, FL 32399-3000 Jeffrey.brown@dep.state.fl.us STATE OF FLORIDA DEPARTMENT OF ENVIRONMENTAL PROTECTION Administrative Law Counsel

STATE OF FLORIDA DIVISION OF ADMINISTRATIVE HEARINGS ATLANTIC CIVIL, INC.,

Petitioner, vs.

FLORIDA POWER AND LIGHT COMPANY AND DEPARTMENT OF ENVIRONMENTAL PROTECTION, Respondents.

_______________________________/

CITY OF MIAMI, Petitioner, vs.

FLORIDA POWER AND LIGHT COMPANY AND DEPARTMENT OF ENVIRONMENTAL PROTECTION, Respondents.

_______________________________/

Case No. 15-1746 Case No. 15-1747 RECOMMENDED 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 (DOAH).

EXHIBIT A

2 APPEARANCES For Petitioner Atlantic Civil, Inc. (ACI):

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, Esquire 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 Respondent Florida Power and Light Company (FPL):

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 Department of Environmental Protection (DEP):

Sarah M. Doar, Esquire Benjamin Melnick, Esquire Department of Environmental Protection Mail Stop 35 3900 Commonwealth Boulevard Tallahassee, Florida 32399

3 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 authority.

PRELIMINARY STATEMENT On December 23, 2014, DEP issued Administrative Order OGC No. 14-0741 (the AO) related to the cooling canal system at FPLs Turkey Point Power Plant in southeast Miami-Dade County.

On February 9, 2015, petitions for administrative 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 amended petition for administrative hearing. The motion was granted except with respect to the request in ACIs Amended Petition that the Administrative Law Judge recommend additional appropriate terms and criteria to halt and remediate the ongoing westward migration of saltwater intrusion in the Aquifer.

4 On 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 Petitioner 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 Agreed 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 Program Administrator who was accepted as an expert in environmental engineering; Terri Bates, Division Director of Water Resources at the South Florida Water Management District (SFWMD), and Jefferson Giddings, a Principal Scientist at SFWMD who was accepted as an expert in groundwater modeling. DEP 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 FPLs Vice President of Governmental Affairs; Steven Scroggs, a Senior Director of Project Development for FPL who was accepted as an expert in power plant engineering, design and siting; and

5 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 ACIs President; Marc Harris, who is a DEP employee responsible for issuing NPDES permits for power plants; 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-63, and ACI-66 were admitted into evidence.

The City presented the testimony of Miguel Augustin, who is the Citys Controller; and Mark Crisp, who was accepted as an expert in design and function of electrical generating facilities and cooling systems. City Exhibits 40 and 43 were admitted into evidence. The Citys 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 transcript of the final hearing was filed with DOAH. The parties filed proposed recommended orders that were considered in the preparation of this Recommended Order.

6 FINDINGS OF FACT Parties

1. FPL is a subsidiary of NextEra Energy. It is a regulated Florida Utility providing electric service to 4.7 million customers in 35 counties.

2. FPL owns and operates the Turkey Point Power Plant, which includes a cooling canal system (CCS) 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 (PPSA), chapter 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 water use permits. ACI also has a Life-of-the-Mine Environmental Resource Permit issued by DEP for its mining activities. The Life-of-the-Mine permit requires that mining be terminated if monitoring data indicate the occurrence

7 of chloride concentrations greater than 250 milligrams per liter (mg/L) 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-Dade County, which withdraws the water from the Biscayne Aquifer.

Turkey Point

8. FPLs Turkey Point property covers approximately 9,400 acres in unincorporated Miami-Dade County, along the coastline adjacent to Biscayne Bay.

9. Five 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 Floridas 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 their power output, referred to as an uprate. Unit 5 was built after the PPSA and was certified under the Act.

8 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 1971 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 associated facility, 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 cooling water enters the plant, heat is transferred to the water by flow-through heat exchangers and then discharged to the top 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 about 48 hours5.555556e-4 days <br />0.0133 hours <br />7.936508e-5 weeks <br />1.8264e-5 months <br /> and results in a reduction in water temperature of about 10 to 15 degrees Fahrenheit.

9

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, rainfall, stormwater runoff, and groundwater infiltration.

17. When the CCS was first constructed, FPL and SFWMDs 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 Pollution Discharge Elimination System (NPDES) 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 causes more evaporation, the water in the CCS becomes saltier. Salinity levels in the CCS are also affected by rainfall, air temperature, the volume of flow from the power plant, and the rate of water circulation.

10

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 (PSU). This is a hypersaline 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 Biscayne 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 plume and it spreads out in all directions.

22. FPL 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 higher turbidity in the CCS caused by algal blooms. Reductions in flow and circulation during this period associated with the retirement of Unit 2 and the uprate of Units 3 and 4 could also have contributed to increased temperatures in the CCS, more evaporation, and higher salinity.

11

24. ACI presented evidence suggesting that the uprate of Units 3 and 4 could be the primary cause 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 salinity in the CCS.

26. FPL has taken action to reduce salinity within the CCS by adding stormwater from the L-31E Canal (pursuant to emergency orders), adding water from shallow saline water wells, and removing sediment build-up in the canals to improve flow. These 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 front or westernmost line of saltwater intrusion is referred to as the saline water interface. More specifically, the saline water interface is where groundwater with total dissolved solids (TDS) of 10,000 mg/L or greater meets groundwater with a lower chloride concentration. DEP

12 classifies groundwater with a TDS concentration less than 10,000 mg/L as G-II groundwater, 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 moving 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 concentrations 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 Countys public water supply wellfields.

32. The hypersaline plume from the CCS is pushing the saline water interface further west.

13

33. Respondents identified factors that contributed to the saltwater intrusion that occurred before the CCS was constructed. However, while saltwater 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 contributing to the continuing westward movement of the saline 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 saline water interface.

36. Fresh groundwater in the Biscayne 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 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.

37. Saltwater intrusion into the area west of the CCS is reducing the amount of fresh groundwater in the Biscayne Aquifer available for natural resources and water uses.

14 Water Quality Violations

38. At the final hearing, a DEP administrator testified that DEP was unable to identify a specific violation of state groundwater or surface water quality standards attributable to the CCS, but DEPs 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 Minimum Criteria for Ground Water, prohibits a discharge in concentrations that impair the reasonable and beneficial use of adjacent waters.

39. Saltwater intrusion into the area west of the CCS is impairing the reasonable and beneficial use of adjacent G-II groundwater and, therefore, is a violation of the minimum criteria for groundwater in rule 62-520.400.

40. In addition, sodium levels detected in monitoring wells west of the CCS and beyond FPLs 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

41. The 2008 Conditions of Certification included a Section X, entitled Surface Water, Ground Water, Ecological Monitoring, which, among other things, required FPL and SFWMD

15 to execute a Fifth Supplemental Agreement regarding the operation and management of the CCS. New monitoring was required and FPL was to detect changes in the quantity and quality of surface and ground water over time due to the cooling canal system.

42.Section X.D. of the Conditions of Certification provides in pertinent part:

If the DEP in consultation with SFWMD and

[Miami-Dade County Department 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 resources; 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 evaluate 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;

43. DEP determined that the monitoring data indicates harm to waters of the State 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

16 determination triggered the requirement for additional measures to require FPL to evaluate or abate the impacts.

44. 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 from the CCS westward of Levee 31E to those amounts which would occur without the existence of the cooling canal system. The agreement provides that if the District determines that the interceptor ditch is ineffective, FPL and the District shall consult to identify measures to mitigate, abate or remediate impacts from the CCS and to promptly implement those approved measures.

45. SFWMD determined that the interceptor ditch is ineffective in preventing saline waters from the CCS in deeper zones of the Biscayne 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.

46. Following consultation between DEP and SFWMD, the agencies decided that, rather than both agencies responding to address the harm caused by the CCS, DEP would take action. DEP then issued the AO for that purpose.

17 The AO

47. The AO begins with 36 Findings of Fact, many of which are undisputed background facts about the history of Turkey Point and the CCS.

48. Also undisputed is the statement in Finding of Fact 25 that the CCS is one of the contributing factors in the western migration of CCS saline Water and the western migration of the saline water must be abated to prevent further harm to the waters of the state.

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, as found above, the preponderance of the record evidence indicates the CCS is the major contributing cause of the continuing westward movement of the saltwater interface.

50. In the Ordered section of the AO, FPL is required to submit to DEP for approval a detailed CCS Salinity Management Plan. The AO explains that [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 State.

51. The goal of reducing hypersalinity of the CCS to abate westward movement of CCS groundwater into class G-II

18 groundwaters is to be demonstrated by two success criteria: (1) reducing and maintaining the average annual salinity of the CCS at a practical salinity 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.

52. Although the AO states that FPLs proposal to withdraw 14 mgd from the Upper Florida Aquifer 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/

53. If the success 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 freshen.

Petitioners Objections

54. 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 will not halt the western movement of the saline water interface.

55. They also contend the AO is vague, forecloses salinity management options that could be effective, and authorizes FPLs continued violation of water quality standards.

19

56. For ACI, it doesnt 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 too salty for ACIs mining operations. Years before the saline water interface reaches ACIs property, ACIs mining operations will be disrupted by the arrival of groundwater with a chloride concentration at or above 250 mg/L.2/

CONCLUSIONS OF LAW Standing

57. 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. 3d 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 interest involved. See Engle v. Liggett Group, Inc., 945 So. 2d 1246 (Fla. 2006). In Engle, the Court stated it 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 state has rights.

Id. at 1260.

20

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 declines the Citys 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.

60. The City holds no water use permit and, generally, an entity has no water rights 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 Management District, 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 Countys various statutory duties and responsibilities with respect to planning for water management and conservation. See also South Fla.

Water Mgmt. Dist. v. City of St. Cloud, 550 So. 2d 551 (Fla. 5th DCA 1989).

61. All local governments have statutory duties and responsibilities with respect to planning for water management and conservation under section 163.3177(6)(c), Florida Statutes.

Therefore, based on the precedent established in Osceola County

21 and City of St. Cloud, supra, it is concluded the City of Miami has standing in this proceeding.

62. ACI and the City presented competent evidence that their substantial interests could be affected.

The Nature of the Proceeding

63. 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 such orders as are necessary to effectuate the control of air and water pollution and enforce the same by all appropriate administrative and judicial proceedings.

64. Respondents contend the AO resolves a violation of Section X.D. of the Conditions of Certification, but Section X.D. has not been violated. A violation 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 administrative order and referred to it as a hybrid between an

22 administrative order and a consent order. Still, Respondents also describe the AO as a pure enforcement action.

66. 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 charges.

67. 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 permit or a modification to the Conditions of Certification, but the AOs 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 DOAH 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.

23

69. Section 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 may issue, renew, revise, or reissue the operation permit when one of six specified criteria is satisfied. 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 Abate

70. DEP defines the term abate in Paragraph 37 of the AO as to reduce in amount, degree or intensity; lessen; diminish 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 abate means to stop or terminate. However, this dispute is largely moot because the AO states that [f]or the purposes of this Order the term abate means to reduce. With this caveat, the term abate in the AO 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 abate, as used in the Conditions of Certification, does not mean to reduce.

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71. The term abate 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 Statutes, 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 definitions 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.

72. There is no definition of abate 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 abate.

73. Respondents made no effort to show the definition in the AO is the most commonly accepted meaning 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.

74. In Websters New Collegiate Dictionary, the first definition entry for the word abate is to put an end to.

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

25 is, to reduce or lessen. Most suggested synonyms are associated with the meaning to reduce or lessen. See e.g., Thesaurus.com

75. However, the terms abate and abatement are regularly used in environmental law. Therefore, choosing one of the meanings of abate outside the environmental context is unnecessary and inappropriate.

76. Several environmental statutes use the phrase prevent or abate. This usage is not free of ambiguity, but it is more likely to mean prevent or, if it is already occurring, then stop. See e.g., §§ 376.308, 403.061(9) 403.081(4), and 403.191(1), Fla Stat.

77. Section 373.433, entitled Abatement, refers to injunctions if certain water control structures are violating DEP or water management district standards. The meaning of abatement in this section is clearly to stop the violation, not merely to diminish it.

78. Section 376.12(1) refers to abatement of a prohibited discharge, which means to stop the discharge.

79. Sections 376.09 and 376.305, pertaining to the removal of prohibited discharges, states that polluters shall immediately contain, remove, and abate the discharge, which is not free of ambiguity regarding the intended meaning of the word abate. There are a few other statutes with this kind of ambiguous wording.

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80. Section 403.4154(3) authorizes DEP to abate or substantially reduce hazards caused by phosphogypsum stacks.

In this section, the term abate is clearly intended to mean to stop and to be distinguished from reduce.

81. Section 403.709 refers to an abatement action brought by DEP to bring an illegal waste tire site into compliance. In this context, the word abatement means to stop the violation of waste tire regulations.

82. Section 403.726 is entitled Abatement of imminent hazard caused by hazardous substance and includes a similar statement that DEP shall take and any action necessary to abate or substantially reduce any imminent hazard. In this section, the term abate means to stop.

83. Section 403.727(1)(g) refers to statutory remedies available to the department to abate violations of this act.

In this context, the term abate means to stop.

84. Section 376.11(6) provides for payment of moneys from the Florida Coastal Protection Trust Fund for the abatement of any other potential pollution hazards, which means to end the hazard, not to diminish it.

85. 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

27 be made by law for the abatement 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 abate in section 7(a) was intended to mean to stop pollution. A state policy to only reduce pollution does not sound very ambitious.

86. When these uses of the term abate or abatement 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.

87. 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 abate did not make its meaning clear, it is likely that the intended meaning was to stop.

88. The use of the term abate or similar terms in Florida statutes has not been interpreted by DEP or any court to mean DEP must always require complete restoration 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 compliance.

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89. If the term abate 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

90. Because 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.

91. 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.

92. The AO is not a reasonable exercise of DEPs 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.

93. The AO is not a reasonable exercise of DEPs enforcement 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.

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94. The AO is an unreasonable exercise of DEPs enforcement discretion because the success criteria are inadequate to accomplish DEPs 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, technological, ecological, or other considerations support the reasonableness of going no fresher than 34 PSU. However this record does not show the reasonableness of restricting FPLs options in this manner. FPL should be free to consider and propose options 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 abate westward movement of CCS

30 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 decreasing salinity trends in four monitoring wells near the CCS, but the decreasing 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 saline water interface than was predicted by the modeling, and one of DEPs stated purposes would be thwarted.

iii. In addition, by only using wells near the 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. FPLs 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

31 interface. Instead, DEP stated that FPLs contribution had not been determined. That was the reason given for the enforcement approach taken by DEP. However, the AO does not require FPL to determine its contribution.

95. All of the infirmities in the AO described above can be cured by amending the AO to delete the proposed success criteria and require FPL to submit a Salinity Management Plan that includes an analysis of the factors contributing to the western movement of saltier groundwater and options that could eliminate the CCSs contribution. In this amended form, the AO would not be an enforcement instrument, but would achieve DEPs apparent intent to require further analysis of the problem and its solution.

96. Petitioners claim that DEP should take immediate enforcement action to stop FPLs 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 RECOMMENDED that the Department of Environmental Protection rescind the AO or amend it as described above.

32 DONE AND ENTERED this 15th day of February, 2016, in Tallahassee, Leon County, Florida.

S BRAM D. E. CANTER Administrative 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.

ENDNOTES 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 proceeding, a hearing was held, a Recommended Order was issued, and the matter is now pending before the Governor and Cabinet in their capacity as the State Siting Board.

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

33 Sarah M. Doar, Esquire Benjamin Melnick, Esquire Department of 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 Southwest 2nd Avenue, Suite 945 Miami, Florida 33130 (eServed)

Jonathan P. Steverson, Secretary Department of Environmental Protection Mail Stop 35 3900 Commonwealth Boulevard Tallahassee, Florida 32399 (eServed)

34 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.

UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION Before the Atomic Safety and Licensing Board In the Matter of

)

)

Docket No.

50-250-LA Florida Power & Light Company

)

50-251-LA

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(Turkey Point Units 3 and 4)

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ASLBP No. 15-935-02-LA-BD01 CERTIFICATE OF SERVICE I hereby certify that copies of the foregoing Florida Power & Light Companys Third Notice to the Board Regarding State Administrative Proceeding, were provided to the E-Filing system for service to those individuals on the service list in this proceeding.

Signed (electronically) by, Steven C. Hamrick Florida Power & Light Company 801 Pennsylvania Avenue, N.W. Suite 220 Washington, DC 20004 steven.hamrick@fpl.com 202-349-3496 Dated at Washington, DC this 2nd day of May, 2016

UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION Before the Atomic Safety and Licensing Board In the Matter of

)

)

Docket No.

50-250-LA Florida Power & Light Company

)

50-251-LA

)

(Turkey Point Units 3 and 4)

)

ASLBP No. 15-935-02-LA-BD01 FLORIDA POWER & LIGHT COMPANYS THIRD NOTICE TO THE BOARD REGARDING STATE ADMINISTRATIVE PROCEEDING On February 17, 2016, Florida Power & Light Company (FPL) provided notice to the Board that an Administrative Law Judge considering the third-party challenge to the Administrative Order issued by the Florida Department of Environmental Protection (FDEP) to FPL had issued a Recommended Order in that matter. Following that notification, the Board requested additional post-hearing briefing on the impact of the Recommended Order in this proceeding. In light of the Boards interest in this matter, FPL submits this notification that the FDEP has issued a Final Order approving the Administrative Order. A copy of that Final Order is attached.

Respectfully Submitted, Signed (electronically) by Steven Hamrick Steven C. Hamrick Florida Power & Light Company 801 Pennsylvania Avenue, N.W. Suite 220 Washington, DC 20004 steven.hamrick@fpl.com 202-349-3496 May 2, 2016 COUNSEL FOR FLORIDA POWER & LIGHT COMPANY

STATE OF FLORIDA DEPARTMENT OF ENVIRONMENTAL PROTECTION ATLANTIC CIVIL, INC.,

Petitioner, vs.

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FLORIDA POWER AND LIGHT COMPANY

)

AND DEPARTMENT OF ENVIRONMENTAL )

PROTECTION,

)

Respondents.

)

)

_____________________________)

CITY OF MIAMI, Petitioner, vs.

FLORIDA POWER AND LIGHT COMPANY AND DEPARTMENT OF ENVIRONMENTAL PROTECTION, Respondents.

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)

)

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_____________________________ )

FINAL ORDER OGC CASE NO.

14-0741 DOAH CASE NO. 15-1746 DOAH CASE NO. 15-1747 On February 15, 2016, an Administrative Law Judge (ALJ) with the Division of Administrative Hearings (DOAH) submitted a Recommended Order (RO) to the Department of Environmental Protection (DEP or Department) in the above referenced administrative proceeding. A copy of the RO is attached hereto as Exhibit A. The RO was served on counsel for the Petitioners, Atlantic Civil, Inc. (ACI), and City of Miami (the City) and counsel for the Respondent, Florida Power and Light Company (FPL),

and the Respondent DEP. On March 1, FPL and DEP filed written Exceptions to the RO ATTACHMENT 1

and the City filed a written Exception to the RO. On March 11, ACI and the City responded to DEP and FPL's Exceptions. On March 11, DEP responded to the City's Exception. This matter is now on review before the Secretary of the Department for final agency action.

BACKGROUND Five electrical generating units were built at FPL's Turkey Point Power Plant in southeast Miami-Dade County. Units 1 and 2 were built in the 1960s. Unit 2 ceased operating in 2010. Units 3 and 4 are Florida's 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. The Turkey Point cooling canal system (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. FPL constructed the CCS to satisfy a 1971 consent judgment with the U.S. Department of Justice which required FPL to terminate its direct discharges of heated water into Biscayne Bay.

The CCS canals are unlined, so they have a direct connection to the groundwater. 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 causes more evaporation, the water in the CCS became saltier. Salinity levels in the CCS are also affected by rainfall, air temperature, the volume of flow from the power plant, and the rate of water circulation.

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 (PSU). This is a hypersaline condition, which means the salinity level is higher than is typical for 2

seawater, which is about 35 PSU. In late 2013, salinity levels in the CCS began to spike, reaching a high of 92 PSU in the summer of 2014. FPL took action to reduce salinity within the CCS by adding storm water from the L-31 E Canal (pursuant to emergency orders), adding water from shallow saline water wells, and removing sediment build-up in the canals to improve flow. These actions, combined with more normal rainfall, decreased salinity levels in the CCS to about 45 PSU at the time of the final hearing.

Higher salinity makes water more dense so the hypersaline water in the CCS sinks beneath the canals and to the bottom of the Biscayne 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 plume and it spreads out in all directions.

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.

The front or westernmost line of saltwater intrusion is referred to as the saline water interface. 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 moving west of the ditch. Now, the saline water interface is four or five miles west of the CCS, and it is still moving west. The hypersaline plume from the CCS is pushing the saline water interface further west.

3

Fresh groundwater in the Biscayne 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 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. Saltwater intrusion into the area west of the CCS is reducing the amount of fresh groundwater in the Biscayne Aquifer available for natural resources and water uses.

The 2008 Conditions of Certification included a Section X, entitled "Surface Water, Ground Water, Ecological Monitoring," which, among other things, required FPL and the South Florida Water Management District (SFWMD) to execute a Fifth Supplemental Agreement regarding the operation and management of the CCS.1 New monitoring was required and FPL was to "detect changes in the quantity and quality of surface and ground water over time due to the cooling canal system."Section X. D. of the Conditions of Certification provides in pertinent part:

If the DEP in consultation with SFWMD and [Miami-Dade County Department 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 resources; 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, When the CCS was first constructed, FPL and SFWMD's 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.

4

including enhanced monitoring and/or modeling, shall be required to evaluate 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; DEP determined that the monitoring data indicates harm to waters of the State 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 "additional measures" to require FPL to "evaluate or abate" the impacts.

The Fifth Supplemental Agreement requires FPL to operate the interceptor ditch to restrict movement of saline water from the CCS westward of Levee 31 E "to those amounts which would occur without the existence of the cooling canal system." The agreement provides that if the District determines that the interceptor ditch is ineffective, FPL and SFWMD shall consult to identify measures to "mitigate, abate or remediate" impacts from the CCS and to promptly implement those approved measures. SFWMD determined that the interceptor ditch is ineffective in preventing saline waters from the CCS in deeper zones of the Biscayne 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. Following consultation between DEP and SFWMD, the agencies decided that, rather than both agencies responding independently to address the harm caused by the CCS, DEP would take action. DEP then issued an Administrative Order to address the harm through implementation and enforcement of the Conditions of Certification.

5

DOAH PROCEEDING On December 23, 2014, the DEP issued Administrative Order OGC No. 14-0741 (AO) related to the CCS. On February 9, 2015, petitions for administrative 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.

Prior to the final hearing in November 2015, Miami-Dade County; Jeffrey Mullins; and Tropical Audubon Society, Blair Butterfield, and Charles Munroe filed Notices of Voluntary Dismissal. The ALJ conducted the final hearing on November 2-4, 2015, in Miami, Florida. The five-volume transcript of the final hearing was filed with DOAH and the parties filed proposed recommended orders. The ALJ subsequently issued the RO.

SUMMARY

OF THE RECOMMENDED ORDER In the RO, the ALJ recommended that the Department enter a final order that rescinded the AO or amended it as described in the RO. (RO at page 31 and 1J 95). The ALJ concluded that the AO was an unreasonable exercise of DEP's enforcement discretion for three reasons. (RO 1J1J 92-95). First, the ALJ concluded that the AO lacked the fundamentals of an enforcement action because it did not charge a party with one or more violations of the law, which the party has the right to refute. (RO 1J1J 66 and 92).

Second, the ALJ concluded that the AO's success criteria did not require FPL to come into compliance with standards or specify a reasonable time to come into compliance.

(RO 1J 93). Third, the ALJ concluded that the AO's "success criteria are inadequate to accomplish DEP's stated purposes." (RO 1J 94).

6

The ALJ found that the AO stated that western migration of saline water "must be abated to prevent further harm to the waters of the state," and that a detailed Salinity Management Plan shall have the goal of reducing hypersalinity of the CCS to abate westward movement of CCS groundwater. (RO 1J1J 48 and 50). The ALJ found that the AO defined the term "abate" as "to reduce in amount, degree or intensity; lessen; diminish." (RO 1J 70). However, the ALJ disagreed with the DEP's position that the AO's definition of "abate" was consistent with the meaning of the term in Section X. D. of the Conditions of Certification. (RO 1J1J 70-89). The ALJ ultimately found that "[i]f the success 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 freshen." (RO 1J 53).

STANDARDS OF REVIEW OF DOAH RECOMMENDED ORDERS Section 120.57(1 )(1), Florida Statutes, prescribes that an agency reviewing a recommended order may not reject or modify the findings of fact of the ALJ "unless the agency first determines from a review of the entire record, and states with particularity in the order, that the findings of fact were not based on competent substantial evidence."

§ 120.57(1)(1), Fla. Stat. (2015); Charlotte Cty. v. fMC Phosphates Co., 18 So. 3d 1089 (Fla. 2d DCA 2009); Wills v. Fla. Elections Comm'n, 955 So. 2d 61 (Fla. 1st DCA 2007).

The term "competent substantial evidence" does not relate to the quality, character, convincing power, probative value or weight of the evidence. Rather, "competent substantial evidence" refers to the existence of some evidence as to each essential element and as to its admissibility under legal rules of evidence. See e.g., Scholastic 7

Book Fairs, Inc. v. Unemployment Appeals Comm'n, 671 So. 2d 287, 289 n.3 (Fla. 5th DCA 1996); Nunez v. Nunez, 29 So. 3d 1191, 1192 (Fla. 5th DCA 201 0).

A reviewing agency may not reweigh the evidence presented at a DOAH final hearing, attempt to resolve conflicts therein, or judge the credibility of witnesses. See, e.g., Rogers v. Dep't of Health, 920 So.2d 27, 30 (Fla. 1st DCA 2005); Belleau v. Dep't of Envtl. Prot., 695 So. 2d 1305, 1307 (Fla. 1st DCA 1997); Dunham v. Highlands Cty.

Sch. Bd., 652 So. 2d 894 (Fla. 2d DCA 1995). If there is competent substantial evidence to support an ALJ's findings of fact, it is irrelevant that there may also be competent substantial evidence supporting a contrary finding. See, e.g., Arand Construction Co. v.

Dyer, 592 So. 2d 276, 280 (Fla. 1st DCA 1991 ); Conshor, Inc. v. Roberts, 498 So. 2d 622 (Fla. 1st DCA 1986).

The ALJ's decision to accept the testimony of one expert witness over that of another expert is an evidentiary ruling that cannot be altered by a reviewing agency, absent a complete lack of any competent substantial evidence of record supporting this decision. See, e.g., Peace River/Manasota Regional Water Supply Authority v. fMC Phosphates Co., 18 So. 3d 1079, 1088 (Fla. 2d DCA 2009); Collier Med. Ctr. v. State, Dep't of HRS, 462 So. 2d 83, 85 (Fla. 1st DCA 1985); Fla. Chapter of Sierra Club v.

Orlando Utils. Comm'n, 436 So. 2d 383, 389 (Fla. 5th DCA 1983). In addition, an agency has no authority to make independent or supplemental findings of fact. See, e.g., North Port, Fla. v. Con sol. Minerals, 645 So. 2d 485, 487 (Fla. 2d DCA 1994 ); Fla.

Power & Light Co. v. Fla. Siting Bd., 693 So. 2d 1025, 1026-1027 (Fla. 1st DCA 1997).

Section 120.57(1 )(1), Florida Statutes, authorizes an agency to reject or modify an ALJ's conclusions of law and interpretations of administrative rules "over which it has 8

substantive jurisdiction." See Barfield v. Dep't of Health, 805 So. 2d 1008 (Fla. 1st DCA 2001 ); LB. Bryan & Co. v. Sch. Bd. of Broward Cty., 746 So. 2d 1194 (Fla. 1st DCA 1999); Deep Lagoon Boat Club, Ltd. v. Sheridan, 784 So. 2d 1140 (Fla. 2d DCA 2001 ).

Considerable deference should be accorded to these agency interpretations of statutes and rules within their regulatory jurisdiction, and such agency interpretations should not be overturned unless "clearly erroneous." See, e.g., Falk v. Beard, 614 So. 2d 1086, 1089 (Fla. 1993); Dep't of Envtl. Reg. v. Goldring, 477 So. 2d 532, 534 (Fla. 1985).

Furthermore, agency interpretations of statutes and rules within their regulatory jurisdiction do not have to be the only reasonable interpretations. It is enough if such agency interpretations are "permissible" ones. See, e.g., Suddath Van Lines, Inc. v.

Dep't of Envtl. Prot., 668 So. 2d 209, 212 (Fla. 1st DCA 1996).

If an ALJ improperly labels a conclusion of law as a finding of fact, the label should be disregarded and the item treated as though it were actually a conclusion of law. See, e.g., Battaglia Properties v. Fla. Land and Water Adjudicatory Comm'n, 629 So. 2d 161, 168 (Fla. 5th DCA 1994 ). However, neither should the agency label what is essentially an ultimate factual determination as a "conclusion of law" in order to modify or overturn what it may view as an unfavorable finding of fact. See, e.g., Stokes v.

State, Bd. of Prof'/ Eng'rs, 952 So. 2d 1224 (Fla. 1st DCA 2007).

Agencies do not have jurisdiction, however, to modify or reject rulings on the admissibility of evidence. Evidentiary rulings of the ALJ that deal with "factual issues susceptible to ordinary methods of proof that are not infused with [agency] policy considerations," are not matters over which the agency has "substantive jurisdiction."

See Martuccio v. Dep't of Prof'/ Reg., 622 So. 2d 607, 609 (Fla. 1st DCA 1993); Heifetz 9

v. Dep't of Bus. Reg., 475 So. 2d 1277, 1281 (Fla. 1st DCA 1985). Evidentiary rulings are matters within the ALJ's sound "prerogative... as the finder of fact" and may not be reversed on agency review. See Martuccio, 622 So. 2d at 609.

RULINGS ON EXCEPTIONS A party that files no exceptions to certain findings of fact "has thereby expressed its agreement with, or at least waived any objection to, those findings of fact." Envtl.

Coalition of Fla., Inc. v. Broward Cty., 586 So. 2d 1212, 1213 (Fla. 1st DCA 1991 ); see also Colonnade Medical Ctr., Inc. v. State of Fla., Agency for Health Care Admin., 847 So. 2d 540, 542 (Fla. 4th DCA 2003). However, an agency head reviewing a recommended order is free to modify or reject any erroneous conclusions of law over which the agency has substantive jurisdiction, even when exceptions are not filed. See

§ 120.57(1 )(1), Fla. Stat. (2014); Barfield v. Dep't of Health, 805 So. 2d 1008 (Fla. 1st DCA 2001 ); Fla. Public Employee Council, 79 v. Daniels, 646 So. 2d 813, 816 (Fla. 1st DCA 1994).

Finally, in reviewing a recommended order and any written exceptions, the agency's final order "shall include an explicit ruling on each exception."

See§ 120.57(1 )(k), Fla. Stat. (2015). However, the agency need not rule on an exception that "does not clearly identify the disputed portion of the recommended order by page number or paragraph, that does not identify the legal basis for the exception, or that does not include appropriate and specific citations to the record." /d.

10

RESPONDENTS' EXCEPTIONS Enforcement discretion It is well recognized that the choice of an enforcement remedy is committed to an administrative agency's discretion and is a matter of enforcement policy unsuitable for judicial review. See Heckler v. Chaney, 470 U.S. 821, 831 (1985); Chau v. Securities and Exchange Comm'n, ---F. Supp. 3d---, 2014 WL 6984236 *13 (S.D.N.Y. 2014)

("Congress has provided the SEC with two tracks on which it may litigate certain cases.

Which of those paths to choose is a matter of enforcement policy squarely within the SEC's province."). Similarly, at the state level, enforcement procedures and remedies are left to the Department's prosecutorial discretion and is not an appropriate subject for DOAH review. See, e.g., Sarasota Cnty. v. Dep't of Envtl. Regulation and Falconer, 9 F.A.L.R. 1822 (Fla. Dep't Envtl. Reg. 1986); Cobb v. Dep't of Envtl. Regulation, 1988 WL 618161 *6 (Fla. Dept. of Env. Reg. 1988); Christensen v. Smith and Dep't of Envtl.

Regulation, 1996 WL 533981 (Fla. Dept. of Env. Reg. 1996).

In Chapter 403, the Legislature authorized the Department to pursue various enforcement remedies, including that the Department may "[i]ssue such orders as are necessary to effectuate the control of air and water pollution and enforce the same by all appropriate administrative and judicial proceedings." § 403.061 (8), Fla. Stat. (2015).

Section 403.061 (8) has been recognized by the courts as an enforcement remedy available to the Department. See, e.g., Save Our Suwannee, Inc. v. State of Fla. Dep't of Envtl. Prot., No. 2001-CA-001266 (Fla. 2d Cir. Ct. March 5, 2004), aff'd 898 So. 2d 943 (Fla. 1st DCA 2005).

11

In this case the AO was issued after it was determined that the monitoring data indicated harm to waters of the State 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 "additional measures" to require FPL to "evaluate or abate" the impacts. (RO 111142-43).

The ALJ described the AO in paragraphs 47 through 52 of the RO. The ALJ found that the AO states that western migration of saline water "must be abated to prevent further harm to the waters of the state," and that a detailed Salinity Management Plan shall have the goal of reducing hypersalinity of the CCS to abate westward movement of CCS groundwater. (RO 1111 48 and 50). The ALJ ultimately found that "[i]f the success 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 'freshen."' (RO 1153).

Chapter 403 is a remedial statute enacted for the public benefit, although containing some penal provisions. See, e.g., Ranger Insurance Co. v. Bal Harbour Club, Inc., 509 So. 2d 940, 943 (Fla. 3d DCA 1985). "The test most often articulated for determining whether a particular provision of legislation is penal in character is whether the legislative aim in providing the sanction was to punish the individual for engaging in the activity involved or to regulate the activity in question." /d. at 943. The Department's choice to exercise its authority at this time in favor of remediation to protect the public health than in favor of punishment by charges and fines is a matter of enforcement discretion squarely within the Department's province. See, e.g., Dep't of Envtl. Prot. v.

12

South Palafox Props., LLC, Case No. 14-3674 (Fla. DOAH March 2, 2015; Fla. DEP May 29, 2015).

The RO reflects that the ALJ inappropriately invaded this exclusive province of the Department to choose an enforcement remedy by essentially finding that he would have chosen the penal remedy that charges FPL with "one or more violations of law."

(RO 1f66).2 Because of his opinion that a charging document was more appropriate, the ALJ concluded that the AO was not a reasonable exercise of enforcement discretion, which contained "infirmities" and should be rescinded. (RO 1f1f92-95).

The ALJ also concluded that Section 403.088(2)(e) "gives the DEP enforcement authority suited for [this] circumstance," but "DEP did not choose this approach." (RO 1f 69). However, the plain language of Section 403.088(2)(e) gives the Department permitting authority to issue certain discharge permits under certain circumstances. The Department's final order in Lane, eta/. v. Department of Environmental Protection, Case Nos. 05-1609, etc. (Fla. DOAH May 11, 2007; Fla. DEP Aug. 8, 2007), explained this permitting authority:

The provisions of Section 403.088(2) (e) and (f), F. S.,

express the clear intent of the Florida Legislature to provide the DEP with the authority to issue permits that do not meet all the regular standards for the proposed activity, provided that at least one of the stated conditions of the statutory provision is met. Consequently, Sections 403.088(2) (e) and (f), constitute a limited statutory exception to the "reasonable assurance" permitting requirement set forth in Rule 62-4.070, F.A.C. See e.g. Valencic v. Miami-Dade County Water and Sewer Dept., 23 FALR 1966, 1969 (Fla. DEP 2001 ), aft. 803 So.2d 719 (Fla. 1st DCA 2001 ).

2 Administrative enforcement is also authorized under the provisions of Section 403.121(2), Florida Statutes. This enforcement remedy is instituted by issuing a written notice of violation containing allegations (charges) regarding violations of the law. See§ 403.121 (2), Fla. Stat. (2015).

13

Lane, eta/. v. Dep'tofEnvtl. Prot., Case Nos. 05-1609, etc. (Fla. DOAH May 11, 2007; Fla. DEP Aug. 8, 2007), per curiam dismissed 44 So. 3d 650 (Fla. 1st DCA 2010).

Contrary to the ALJ's conclusions in paragraphs 66, 69, 92-95, and as discussed above, the AO is an enforcement instrument authorized under Section 403.061 (8). It contains findings, and it requires FPL to comply with Condition of Certification X. D. by submitting and implementing a Salinity Management Plan that will achieve the goals and timelines specified in the AO. (RO ~~ 47-53; Joint Ex. 1 ). And, its provisions can be enforced by appropriate administrative and judicial proceedings. See§ 403.061 (8), Fla.

Stat. (2015). This legal conclusion interpreting Chapter 403, Florida Statutes, is as or more reasonable than those of the ALJ. See, e.g., Fla. Audubon Soc. v. Sugar Cane Growers Coop. of Fla., 171 So. 3d 790, 797 (Fla. 2d DCA 2015) (reflecting that an agency bears the primary responsibility to interpret statutes within its regulatory expertise and jurisdiction).

Reasonable exercise of enforcement discretion The ALJ identified three reasons for concluding that the AO is an unreasonable exercise of DEP's enforcement discretion. (RO ~~ 92-95). First, the ALJ concluded that the AO is procedurally flawed because it is not a charging document. (RO ~~ 66 and 92). As discussed above, the ALJ's conclusion that the AO must be a charging document is rejected. Also, as the ALJ points out, since the AO was not a charging document, "FPL did not come to the final hearing to defend against these charges." (RO

~ 66).

Second, the ALJ concluded that the AO's success criteria do not require FPL to come into compliance with standards or specify a reasonable time to come into 14

compliance. (RO ~ 93). This reason paraphrases the secondary authority cited for the AO in its opening paragraph. (Joint Ex. 1 ). Section 403.151 provides that "[a]ll rules or orders of the department which require action to comply with standards adopted by it, or orders to comply with any provisions of this act, may specify a reasonable time for such compliance." § 403.151, Fla. Stat. (2015). Having found that the AO "does not authorize any action" (RO ~ 68), the ALJ then goes on to conclude that the AO does not represent the first category of orders described in Section 403.151. However, as an order designed to effectuate (i.e., bring about) the control of water pollution the AO represents the second category of order described in Section 403.151 and authorizes that such orders "may specify a reasonable time for... compliance." See§§ 403.151 and 403.061(8), Fla. Stat. (2015). This legal conclusion interpreting Chapter 403, is as or more reasonable than that of the ALJ. See, e.g., Fla. Audubon Soc. v. Sugar Cane Growers Coop. ofF/a., 171 So. 3d 790, 797 (Fla. 2d DCA 2015) (reflecting that an agency bears the primary responsibility to interpret statutes within its regulatory expertise and jurisdiction).

The third reason identified by the ALJ for concluding that the AO is an unreasonable exercise of DEP's enforcement discretion, is that the AO's "success criteria are inadequate to accomplish DEP's stated purposes." (RO ~ 94). The ALJ's conclusions in paragraph 94 must be rejected because they are based on mistakes of fact and law regarding the AO's stated purpose and the success criteria. (Joint Ex. 1 ).

The ALJ found that the AO states that western migration of saline water "must be abated to prevent further harm to the waters of the state," and that a detailed Salinity Management Plan shall have the goal of reducing hypersalinity of the CCS to abate 15

westward movement of CCS groundwater. (RO ~m 48 and 50). The ALJ acknowledges that the AO defines the term "abate" as "to reduce in amount, degree or intensity; lessen; diminish." (RO 1170). However, the ALJ disagrees with the DEP's position that the AO's definition of "abate" is consistent with the meaning of the term in Section X. D.

of the Conditions of Certification. (RO W 70-89). And since the AO purports to implement and enforce Section X. D., the ALJ concluded that the AO does not "eliminate the CCS's contribution" to the "western movement of saltier groundwater." (RO 1195).

Contrary to the ALJ's conclusion, the record reflects that the DEP's interpretation of the Conditions of Certification is supported by competent substantial evidence (T.

Vol. II, p. 157; Joint Exhibit 1 ). Also, the DEP's interpretation is within the agency's substantive jurisdiction to "administer and manage" the Conditions of Certification, and to assure compliance with those Conditions. See§§ 403.504(14) and 403.514, Fla.

Stat. (2015). The Department's legal conclusion interpreting the AO and the Conditions of Certification is more reasonable than that of the ALJ. See, e.g., Fla. Audubon Soc. v.

Sugar Cane Growers Coop. of Fla., 171 So. 3d 790, 797 (Fla. 2d DCA 2015) (reflecting that an agency bears the primary responsibility to interpret statutes within its regulatory expertise and jurisdiction).

In paragraph 53, the ALJ specifically found that "[i]f the success 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 freshen." (RO 1153). Despite this finding, the ALJ concluded that the 34 PSU "success criterion" is not reasonable based on a mistaken belief that "it could be an unnecessary impediment" that would preclude FPL from proposing to "lower the salinity in the CCS 16

even further if it is practical and could achieve greater benefits." (RO,-r 94.a.i. through 94.a.iii). The ALJ's conclusion is based on a mistake of fact reflected in paragraph 51.

The record shows that the AO expressly contemplates that FPL may reduce CCS salinity below 34 PSU. (Joint Ex. 1, at paragraphs 42 and 43).

Contrary to the ALJ's conclusion, the Department finds that the 34 or below PSU success criterion is a reasonable exercise of enforcement discretion, for the reasons explained by the ALJ in paragraphs 94.a.i. through 94.a.iii. This legal conclusion is more reasonable than that of the ALJ. See, e.g., Fla. Audubon Soc. v. Sugar Cane Growers Coop. of Fla., 171 So. 3d 790, 797 (Fla. 2d DCA 2015) (reflecting that an agency bears the primary responsibility to interpret statutes within its regulatory expertise and jurisdiction).

In paragraph 51, the ALJ also found that the AO's second success criterion was to demonstrate "decreasing salinity trends in four monitoring wells located near the CCS." (RO,-r 51). The ALJ concludes that this success criterion is not reasonable because the decreasing trend is not quantified. (RO,-r 94.b.i.). Yet, at the same time, the ALJ acknowledges that the achievement of this success criterion is related to the computer modeling relied on by DEP. (RO,-r 94.b.ii.). The ALJ's analysis does not fully represent the requirements of the AO with regard to this success criterion. The AO requires that monitoring of salinity trends also include installation and monitoring of a new deep well "at the City of Homestead" in addition to the four monitoring wells located near the CCS. (Joint Ex. 1, paragraphs 37.a. and 37.f.). The AO also requires continued monitoring of "the wells/well clusters identified in the 2009 Monitoring Plan, as Amended." (Joint Ex. 1, paragraph 37.f.). The ALJ's findings and conclusions do not 17

form a basis for finding that the AO's second success criterion is unreasonable. This legal conclusion is more reasonable than that of the ALJ. See, e.g., Fla. Audubon Soc.

v. Sugar Cane Growers Coop. of Fla., 171 So. 3d 790, 797 (Fla. 2d DCA 2015)

(reflecting that an agency bears the primary responsibility to interpret statutes within its regulatory expertise and jurisdiction).

In paragraphs 94.c. and 95, the ALJ's conclusion that the AO should require FPL to determine and terminate its contribution to the westward movement of the saline water interface relates back to his disagreement with the Department's definition of "abate" in the AO and the Conditions of Certification. As discussed above, the ALJ's disagreement is rejected and the AO's definition of "abate" is found to be a reasonable interpretation of the term as used in Section X. D. of the Conditions of Certification.

DEP Exception No.2 DEP takes exception to a portion of paragraph 51 as not supported by competent substantial evidence. DEP argues that the plain language of the AO reflects that the first success criterion is to maintain salinity at or below 34 PSU. As discussed above, the ALJ's finding is a mistake of fact that is not supported by competent substantial evidence. In fact the competent substantial evidence supports modifying the ALJ's finding to accurately reflect the requirement of the AO's first success criterion (Joint Ex.

1, paragraphs 42 and 43); see§ 120.57(1 )(1), Fla. Stat. (2015).

Therefore, based on the foregoing reasons, DEP's Exception No. 2 to a portion of paragraph 51, is granted.

18

DEP Exception No. 4; FPL Exception No. 4 DEP takes exception to paragraphs 66 through 69 on the basis that they would intrude on the exclusive province of the Department to determine enforcement procedures and remedies. FPL takes exception to paragraphs 64 through 66, 92 and 93, on the basis that the ALJ misconstrued the nature of the AO. FPL argues that the ALJ failed to recognize the AO as a mechanism for enforcing and implementing the Conditions of Certification and erroneously concluded that it was not a reasonable exercise of enforcement discretion.

FPL specifically argues that in paragraph 64, the ALJ erroneously concludes that Condition X.D. is only directed at the Department. As FPL points out, the Condition, by its terms, is focused on potential harm to waters of the state caused by the CCS.

Ultimately, FPL must implement "additional measures" to "abate" such impacts. (Joint Ex. 1, paragraph 25; Joint Ex. 2,Section X. D. of Conditions of Certification). Thus, the ALJ's conclusion in paragraph 64 that Condition X. D. is directed only to the Department is not a reasonable interpretation of its plain language. The interpretation of Condition X.D. is within the Department's substantive jurisdiction. Therefore, FPL's exception to paragraph 64 is granted.

FPL's exception to paragraph 65 is denied because the paragraph accurately describes the Conditions of Certification and the Respondents' arguments in the hearing.

The Respondents' exception to paragraph 66 is granted for the reasons discussed above; the AO is a type of enforcement remedy, but it is not a charging document.

19

DEP's exceptions to paragraphs 67 and 68 are denied because the paragraphs accurately describe the parties' arguments during the hearing.

DEP's exception to paragraph 69, where the ALJ states that Section 403.088(2)(e) gives DEP enforcement authority, is granted for the reasons discussed above.

FPL's exception to paragraphs 92 and 93 is granted for the reasons discussed above.

DEP Exception No. 6; FPL Exception Nos. 6 and 7 DEP takes exception to paragraphs 90 through 95 and FPL takes exception to paragraphs 91 and 94. As discussed above, these conclusions of the ALJ reflect his enforcement discretion analysis.

DEP's exception to paragraph 90 is denied because, as discussed above, the AO is an enforcement remedy that is subject to the reasonable exercise of enforcement discretion standard. The Respondents' exception to paragraph 91 is granted because the above discussion shows that the ALJ's three identified reasons for concluding that the AO is an unreasonable exercise of DEP's enforcement discretion (RO 1J1J 92-95) are flawed. For those same reasons, the exceptions to paragraphs 92, 93, and 94, are granted.

DEP Exception No. 5; FPL Exception No. 5 DEP takes exception to paragraphs 70-89 and FPL takes exception to paragraphs 73-89 regarding the ALJ's analysis of the term "abate." For the reasons discussed above, the Department's legal conclusion interpreting the AO and the Conditions of Certification as having a consistent definition for "abate," is more 20

reasonable than that of the ALJ. See, e.g., Fla. Audubon Soc. v. Sugar Cane Growers Coop. ofF/a., 171 So. 3d 790, 797 (Fla. 2d DCA 2015) (reflecting that an agency bears the primary responsibility to interpret statutes within its regulatory expertise and jurisdiction).

Therefore, for the foregoing reasons, the exceptions to paragraphs 70-89 are granted.

Water quality violations DEP Exception Nos. 1 and 7; FPL Exception No. 3 The Respondents take exception to paragraphs 38-40 and related portions of paragraphs 92 and 96. In paragraphs 38-40, the ALJ made the following findings of fact:

38. At the final hearing, a DEP administrator testified that DEP was unable to identify a specific violation of state groundwater or surface water quality standards attributable to the CCS, but DEP's 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 "Minimum Criteria for Ground Water,"

prohibits a discharge in concentrations that "impair the reasonable and beneficial use of adjacent waters."

39. Saltwater intrusion into the area west of the CCS is impairing the reasonable and beneficial use of adjacent G-Il groundwater and, therefore, is a violation of the minimum criteria for groundwater in rule 62-520.400.

40. In addition, sodium levels detected in monitoring wells west of the CCS and beyond FPL's zone of discharge are many times greater than the applicable G-Il groundwater standard for sodium. The preponderance of the evidence shows that the CCS is contributing to a violation of the sodium standard.

The Respondents essentially argue that the ALJ should not have made independent findings regarding violations of water quality standards because of potential due 21

process problems identified by the ALJ in other paragraphs of the RO. (RO 1f1f66 and 92). DEP also argues that the findings in paragraphs 38-40 are internally inconsistent with the conclusions in paragraph 92. However, for the reasons discussed above, the ALJ's conclusions in paragraph 92 that the AO must be a charging document was rejected. DEP's exception to paragraph 92 was granted for the reasons discussed in the ruling on DEP Exception No. 6 above.

The conclusion that the AO is an enforcement remedy available to the Department, although not a charging document, does not preclude the ALJ's factual findings in paragraphs 38-40 and the reference to "current violations" in paragraph 96.

The factual findings in paragraphs 38-40 are based on competent substantial evidence adduced at the hearing. (T. Vol. 1, p. 127; Joint Ex. 3; T. Vol. II, p. 209, lines 4-8, pp.

279-280; DEP Ex. 7; ACI Exs. 11 and 66). Most of that evidence formed the basis for the Department's finding of harm under Section X.D. of the Conditions of Certification leading to issuance of the AO. (T. Vol. 1, p. 127; Joint Ex. 3; T. Vol. II, pp. 279-280; ACI Ex. 11; DEP Ex. 7; ACI Ex. 66); see§ 120.57(1 )(1), Fla. Stat. (2015); Heifetz v. Dep't of Bus. Reg., 475 So. 2d 1277, 1281 (Fla. 1st DCA 1985).

Therefore, based on the foregoing reasons, the Respondents' exceptions to paragraphs 38-40, and 96, are denied.

FPL'S REMAINING EXCEPTIONS FPL Exception No. 1 FPL takes exception to paragraph 34, where the ALJ found that "Respondents made no effort to show how any factor other than the CCS is currently contributing to the continuing westward movement of the saline water interface in this area of the 22

County." (RO ~ 34). FPL argues that there is no competent substantial record evidence to support this finding. FPL cites to testimony from DEP and SFWMD witnesses to argue that there is competent substantial evidence regarding other factors. (T. Vol. 1, pp. 123-125; T. Vol. II, pp. 250-251). However, paragraph 34 is a reasonable inference from the totality of the witnesses' testimony. (T. Vol. 1, pp. 123-125; T. Vol. II, pp. 194-196; 239-240; T. Vol. II, pp. 250-251, 261-266); see§ 120.57(1 )(I), Fla. Stat. (2015);

Heifetz v. Dep'tofBus. Reg., 475 So. 2d 1277, 1281 (Fla. 1st DCA 1985).

Therefore, based on the foregoing reasons, FPL's exception to paragraph 34 is denied.

FPL Exception No. 2 FPL takes exception to paragraphs 35, 49, and the second sentence of paragraph 54. FPL argues that these findings of fact are not supported by competent substantial evidence and are irrelevant to the disposition of this proceeding.

Contrary to FPL's argument, these findings of fact are supported by competent substantial record evidence. (T. Vol. I, p. 127, lines 19-20; T. Vol. I, p. 130, lines 17-19; Joint Ex. 1, paragraph 25; T. Vol. II, p. 250, lines 16-20; T. Vol. Ill, p. 403, lines 8-12; T.

Vol. Ill, pp. 408-410); see§ 120.57(1)(1), Fla. Stat. (2015); Heifetz v. Dep'tofBus. Reg.,

475 So. 2d 1277, 1281 (Fla. 1st DCA 1985).

Therefore, based on the foregoing reasons, FPL's exception to paragraphs 35, 49, and the second sentence of paragraph 54, is denied.

23

Standing DEP Exception No. 3 DEP takes exception to paragraphs 60-62 of the RO, where the ALJ concluded that the City of Miami and ACI established standing. DEP argues that in paragraph 60 the ALJ "mischaracterizes the holding in Osceola County v. St. Johns River Water Management District, 486 So. 2d 616 (Fla. 5th DCA 1986)." See DEP's Exceptions at page 5. That case arose from a petition for writ of prohibition filed with a district court of appeal and the question concerned the petitioner's standing to seek the writ of prohibition. See Osceola Cty. v. St. Johns River Water Mgmt. Dist., 486 So. 2d 616, 617 (Fla. 5th DCA 1986) ("Respondent challenges Osceola County's standing to seek this writ."). DEP further argues that in paragraph 61, the ALJ incorrectly applied the Osceola County decision because the authority of a local government to approve a comprehensive plan under Chapter 163, Florida Statutes, is not within the zone of interests protected by the Department's Chapter 403 regulatory programs. The court in Osceola County did not address the question of standing to seek a Section 120.57(1) administrative hearing. However, in the other case cited by the ALJ in paragraphs 60 and 61, the court found that the City of St. Cloud's petition demonstrated standing. See South Fla. Water Mgmt. Dist. v. City of St. Cloud, 550 So. 2d 551, 552 (Fla. 5th DCA 1989). The City of St. Cloud's petition alleged that it had a substantial interest in the quality and availability of its water supply and that this interest would be adversely affected by the proposed water wells' construction. /d. at 553.

Therefore, the ALJ's conclusions of law in paragraphs 60 and 61 are modified to reject any reliance on the Osceola County case to answer the question of the City's 24

standing to seek a Section 120.57 administrative hearing. This conclusion of law is more reasonable than that of the ALJ because the question involves the Department's interpretation of Chapter 403, including the scope of interests protected by Chapter 403 proceedings. See Friends of the Everglades v. Bd. of Trustees of the Internal Improvement Trust Fund, 595 So. 2d 186, 189 (Fla. 1st DCA 1992) (reflecting that the statute defines the scope or nature of the proceeding); Reily Enters., LLC v. Dep't of Envtl. Prot., 990 So. 2d 1248, 1251 (Fla. Fourth DCA 2008) (reflecting that the Department's Secretary reversed the ALJ's legal conclusion regarding standing).

In paragraph 62, the ALJ ultimately determined that "ACI and the City presented competent evidence that their substantial interests could be affected." (RO 1J 62). The ALJ's conclusion of law in paragraph 57 stated that "[t]o establish standing, a party must present evidence to show that its substantial interests could be affected." (RO 1J 57).

See St. Johns Riverkeeper, Inc. v. St. Johns River Water Mgmt. Dist., 54 So. 3d 1051,

1054 (Fla. 5th DCA 2011 ). Paragraph 62 is an ultimate factual finding that is supported by the ALJ's underlying findings of fact in paragraphs 4, 5, 6, 7, 31, 32, 36, 37, 56, and by competent substantial record evidence (T. Vol. II, pp. 300-302; City Ex. 40; Prehearing Stip.Section V.1f1f W-X; ACI Exs. 8 and 9).

Therefore, based on the foregoing reasons, the DEP's Exception No. 3 is granted as to paragraphs 60 and 61, which are modified as discussed above; and denied as to paragraph 62.

City of Miami's Exception No. 1 The City takes exception to paragraphs 58 and 59 of the RO, where the ALJ concluded that the doctrine of parens patriae does not allow a municipality to claim 25

standing to intervene in a DEP enforcement action. (RO 1f 59). The City asserts that the ALJ should have extended the doctrine of parens patriae to encompass the City's standing to challenge the administrative order on behalf of its citizens. The City acknowledges that the ALJ ultimately held that the City had standing independent of parens patriae. However, the City filed this exception to "preserve the City's right to appellate review on a pure conclusion of law." See City's Exception at pages 1-2.

The ALJ's conclusions in paragraphs 58 and 59 are supported by the Florida Supreme Court precedent cited in paragraph 58 and by prior Department final orders.

See Engle v. Liggett Group, Inc., 945 So. 2d 1246 (Fla. 2006); see e.g., Hamilton Cty.

Bd. ofCty. Comm'rs v. TSI Southeast, Inc., and Dep'tofEnvtl. Reg., 12 F.A.L.R. 3774 (Fla. Dept. of Env. Reg. 1990), aff'd, 587 So. 2d 1378 (Fla. 1st DCA 1991 ). Therefore, the City of Miami's Exception No. 1 is denied.

CONCLUSION Contrary to the ALJ's legal conclusions, the AO is an enforcement instrument authorized under Section 403.061 (8). It contains findings, and it requires FPL to comply with Condition of Certification X. D. by submitting and implementing a Salinity Management Plan that will achieve the goals and timelines specified in the AO. (RO 1f1f 47-53; Joint Ex. 1 ). The AO's provisions can be enforced by appropriate administrative and judicial proceedings. See§ 403.061(8), Fla. Stat. (2015). The AO is a reasonable exercise of the Department's enforcement discretion under Sections 403.061(8) and 403.151. Thus, the ALJ recommendation to rescind the AO as an unreasonable exercise of enforcement discretion, or amend it as suggested in the RO, is rejected.

26

Notwithstanding the ultimate conclusion below, the record developed during this case raises issues of environmental concern which require further consideration.

Accordingly, Department staff shall consider the findings of this order, specifically those related to the findings in the RO at paragraphs 38-40, as well as any other additional information staff might have available at this time, and take any further action as is necessary.

Having considered the applicable law in light of the written exceptions, responses, and the above rulings, and being otherwise duly advised, it is ORDERED that:

A. The Recommended Order (Exhibit A) is adopted, except as modified by the above rulings, and incorporated herein by reference.

B. The Department's Administrative Order issued on December 23, 2014, is hereby APPROVED.

JUDICIAL REVIEW Any party to this proceeding has the right to seek judicial review of the Final Order under section 120.68, Florida Statutes, by filing of a Notice of Appeal under rule 9.110 and 9.190, Florida Rules of Appellate Procedure, with the Agency Clerk of the Department in the Office of General Counsel, 3900 Commonwealth Boulevard, M.S. 35, Tallahassee, Florida 32399-3000; and by filing a copy of the Notice of Appeal accompanied by the applicable filing fees with the appropriate District Court of Appeal.

27

The Notice of Appeal must be filed within 30 days from the date this Final Order is filed with the Agency Clerk.

DONE AND ORDERED this j1 ~day of April, 2016, in Tallahassee, Florida.

FILED ON THIS DATE PURSUANT TO§ 120.52, FLORIDA STATUTES, WITH THE DESIGNATED DEPARTMENT CLERK, RECEIPT OF WHICH IS HEREBY ACKNOWLEDGED.

Lj-;)1 -/(p DATE 28 STATE OF FLORIDA DEPARTMENT OF ENVIRONMENTAL PROTECTION JONATHAN P. STEVERSON Secretary Marjory Stoneman Douglas Building 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000

CERTIFICATE OF SERVICE I CERTIFY that a copy of the foregoing Final Order has been sent by electronic mail to:

Gary V. Perko, Esquire Douglas S. Roberts, Esquire Jonathan Harrison Maurer, Esquire Hopping Green & Sams, P.A.

P.O. Box 6526 Tallahassee, FL 32314 garyp@hgslaw.com douglasr@hgslaw.com Kerri L. McNulty, Esquire MatthewS. Haber, Esquire Ruth A. Holmes, Esquire Nicholas Basco, Esquire City of Miami 444 Southwest 2nd Avenue Suite 945 Miami, FL 33130 klmcnulty@miamigov.com mshaber@miamigov.com npbasco@miamiagov.com and by electronic filing to:

Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550

~

this~\\day of April, 2016.

29 Andrew J. Baumann, Esquire Rachel B. Santana, Esquire Lewis, Longman and Walker, P.A.

515 North Flagler Drive, Suite 1500 West Palm Beach, FL 33401 abaumann@llw-law.com rsantana@llaw-law.com Edwin A. Steinmeyer, Esquire Steinmeyer Fiveash, LLP 310 West College Avenue Tallahassee, FL 32301 eas@steinmeyerfiveash. com Jeffrey Brown, Esquire Department of Environmental Protection 3900 Commonwealth Blvd., MS 35 Tallahassee, FL 32399-3000 Jeffrey.brown@dep.state.fl.us STATE OF FLORIDA DEPARTMENT OF ENVIRONMENTAL PROTECTION Administrative Law Counsel

STATE OF FLORIDA DIVISION OF ADMINISTRATIVE HEARINGS ATLANTIC CIVIL, INC.,

Petitioner, vs.

FLORIDA POWER AND LIGHT COMPANY AND DEPARTMENT OF ENVIRONMENTAL PROTECTION, Respondents.

_______________________________/

CITY OF MIAMI, Petitioner, vs.

FLORIDA POWER AND LIGHT COMPANY AND DEPARTMENT OF ENVIRONMENTAL PROTECTION, Respondents.

_______________________________/

Case No. 15-1746 Case No. 15-1747 RECOMMENDED 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 (DOAH).

EXHIBIT A

2 APPEARANCES For Petitioner Atlantic Civil, Inc. (ACI):

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, Esquire 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 Respondent Florida Power and Light Company (FPL):

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 Department of Environmental Protection (DEP):

Sarah M. Doar, Esquire Benjamin Melnick, Esquire Department of Environmental Protection Mail Stop 35 3900 Commonwealth Boulevard Tallahassee, Florida 32399

3 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 authority.

PRELIMINARY STATEMENT On December 23, 2014, DEP issued Administrative Order OGC No. 14-0741 (the AO) related to the cooling canal system at FPLs Turkey Point Power Plant in southeast Miami-Dade County.

On February 9, 2015, petitions for administrative 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 amended petition for administrative hearing. The motion was granted except with respect to the request in ACIs Amended Petition that the Administrative Law Judge recommend additional appropriate terms and criteria to halt and remediate the ongoing westward migration of saltwater intrusion in the Aquifer.

4 On 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 Petitioner 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 Agreed 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 Program Administrator who was accepted as an expert in environmental engineering; Terri Bates, Division Director of Water Resources at the South Florida Water Management District (SFWMD), and Jefferson Giddings, a Principal Scientist at SFWMD who was accepted as an expert in groundwater modeling. DEP 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 FPLs Vice President of Governmental Affairs; Steven Scroggs, a Senior Director of Project Development for FPL who was accepted as an expert in power plant engineering, design and siting; and

5 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 ACIs President; Marc Harris, who is a DEP employee responsible for issuing NPDES permits for power plants; 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-63, and ACI-66 were admitted into evidence.

The City presented the testimony of Miguel Augustin, who is the Citys Controller; and Mark Crisp, who was accepted as an expert in design and function of electrical generating facilities and cooling systems. City Exhibits 40 and 43 were admitted into evidence. The Citys 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 transcript of the final hearing was filed with DOAH. The parties filed proposed recommended orders that were considered in the preparation of this Recommended Order.

6 FINDINGS OF FACT Parties

1. FPL is a subsidiary of NextEra Energy. It is a regulated Florida Utility providing electric service to 4.7 million customers in 35 counties.

2. FPL owns and operates the Turkey Point Power Plant, which includes a cooling canal system (CCS) 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 (PPSA), chapter 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 water use permits. ACI also has a Life-of-the-Mine Environmental Resource Permit issued by DEP for its mining activities. The Life-of-the-Mine permit requires that mining be terminated if monitoring data indicate the occurrence

7 of chloride concentrations greater than 250 milligrams per liter (mg/L) 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-Dade County, which withdraws the water from the Biscayne Aquifer.

Turkey Point

8. FPLs Turkey Point property covers approximately 9,400 acres in unincorporated Miami-Dade County, along the coastline adjacent to Biscayne Bay.

9. Five 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 Floridas 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 their power output, referred to as an uprate. Unit 5 was built after the PPSA and was certified under the Act.

8 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 1971 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 associated facility, 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 cooling water enters the plant, heat is transferred to the water by flow-through heat exchangers and then discharged to the top 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 about 48 hours5.555556e-4 days <br />0.0133 hours <br />7.936508e-5 weeks <br />1.8264e-5 months <br /> and results in a reduction in water temperature of about 10 to 15 degrees Fahrenheit.

9

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, rainfall, stormwater runoff, and groundwater infiltration.

17. When the CCS was first constructed, FPL and SFWMDs 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 Pollution Discharge Elimination System (NPDES) 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 causes more evaporation, the water in the CCS becomes saltier. Salinity levels in the CCS are also affected by rainfall, air temperature, the volume of flow from the power plant, and the rate of water circulation.

10

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 (PSU). This is a hypersaline 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 Biscayne 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 plume and it spreads out in all directions.

22. FPL 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 higher turbidity in the CCS caused by algal blooms. Reductions in flow and circulation during this period associated with the retirement of Unit 2 and the uprate of Units 3 and 4 could also have contributed to increased temperatures in the CCS, more evaporation, and higher salinity.

11

24. ACI presented evidence suggesting that the uprate of Units 3 and 4 could be the primary cause 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 salinity in the CCS.

26. FPL has taken action to reduce salinity within the CCS by adding stormwater from the L-31E Canal (pursuant to emergency orders), adding water from shallow saline water wells, and removing sediment build-up in the canals to improve flow. These 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 front or westernmost line of saltwater intrusion is referred to as the saline water interface. More specifically, the saline water interface is where groundwater with total dissolved solids (TDS) of 10,000 mg/L or greater meets groundwater with a lower chloride concentration. DEP

12 classifies groundwater with a TDS concentration less than 10,000 mg/L as G-II groundwater, 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 moving 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 concentrations 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 Countys public water supply wellfields.

32. The hypersaline plume from the CCS is pushing the saline water interface further west.

13

33. Respondents identified factors that contributed to the saltwater intrusion that occurred before the CCS was constructed. However, while saltwater 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 contributing to the continuing westward movement of the saline 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 saline water interface.

36. Fresh groundwater in the Biscayne 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 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.

37. Saltwater intrusion into the area west of the CCS is reducing the amount of fresh groundwater in the Biscayne Aquifer available for natural resources and water uses.

14 Water Quality Violations

38. At the final hearing, a DEP administrator testified that DEP was unable to identify a specific violation of state groundwater or surface water quality standards attributable to the CCS, but DEPs 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 Minimum Criteria for Ground Water, prohibits a discharge in concentrations that impair the reasonable and beneficial use of adjacent waters.

39. Saltwater intrusion into the area west of the CCS is impairing the reasonable and beneficial use of adjacent G-II groundwater and, therefore, is a violation of the minimum criteria for groundwater in rule 62-520.400.

40. In addition, sodium levels detected in monitoring wells west of the CCS and beyond FPLs 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

41. The 2008 Conditions of Certification included a Section X, entitled Surface Water, Ground Water, Ecological Monitoring, which, among other things, required FPL and SFWMD

15 to execute a Fifth Supplemental Agreement regarding the operation and management of the CCS. New monitoring was required and FPL was to detect changes in the quantity and quality of surface and ground water over time due to the cooling canal system.

42.Section X.D. of the Conditions of Certification provides in pertinent part:

If the DEP in consultation with SFWMD and

[Miami-Dade County Department 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 resources; 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 evaluate 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;

43. DEP determined that the monitoring data indicates harm to waters of the State 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

16 determination triggered the requirement for additional measures to require FPL to evaluate or abate the impacts.

44. 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 from the CCS westward of Levee 31E to those amounts which would occur without the existence of the cooling canal system. The agreement provides that if the District determines that the interceptor ditch is ineffective, FPL and the District shall consult to identify measures to mitigate, abate or remediate impacts from the CCS and to promptly implement those approved measures.

45. SFWMD determined that the interceptor ditch is ineffective in preventing saline waters from the CCS in deeper zones of the Biscayne 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.

46. Following consultation between DEP and SFWMD, the agencies decided that, rather than both agencies responding to address the harm caused by the CCS, DEP would take action. DEP then issued the AO for that purpose.

17 The AO

47. The AO begins with 36 Findings of Fact, many of which are undisputed background facts about the history of Turkey Point and the CCS.

48. Also undisputed is the statement in Finding of Fact 25 that the CCS is one of the contributing factors in the western migration of CCS saline Water and the western migration of the saline water must be abated to prevent further harm to the waters of the state.

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, as found above, the preponderance of the record evidence indicates the CCS is the major contributing cause of the continuing westward movement of the saltwater interface.

50. In the Ordered section of the AO, FPL is required to submit to DEP for approval a detailed CCS Salinity Management Plan. The AO explains that [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 State.

51. The goal of reducing hypersalinity of the CCS to abate westward movement of CCS groundwater into class G-II

18 groundwaters is to be demonstrated by two success criteria: (1) reducing and maintaining the average annual salinity of the CCS at a practical salinity 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.

52. Although the AO states that FPLs proposal to withdraw 14 mgd from the Upper Florida Aquifer 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/

53. If the success 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 freshen.

Petitioners Objections

54. 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 will not halt the western movement of the saline water interface.

55. They also contend the AO is vague, forecloses salinity management options that could be effective, and authorizes FPLs continued violation of water quality standards.

19

56. For ACI, it doesnt 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 too salty for ACIs mining operations. Years before the saline water interface reaches ACIs property, ACIs mining operations will be disrupted by the arrival of groundwater with a chloride concentration at or above 250 mg/L.2/

CONCLUSIONS OF LAW Standing

57. 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. 3d 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 interest involved. See Engle v. Liggett Group, Inc., 945 So. 2d 1246 (Fla. 2006). In Engle, the Court stated it 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 state has rights.

Id. at 1260.

20

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 declines the Citys 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.

60. The City holds no water use permit and, generally, an entity has no water rights 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 Management District, 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 Countys various statutory duties and responsibilities with respect to planning for water management and conservation. See also South Fla.

Water Mgmt. Dist. v. City of St. Cloud, 550 So. 2d 551 (Fla. 5th DCA 1989).

61. All local governments have statutory duties and responsibilities with respect to planning for water management and conservation under section 163.3177(6)(c), Florida Statutes.

Therefore, based on the precedent established in Osceola County

21 and City of St. Cloud, supra, it is concluded the City of Miami has standing in this proceeding.

62. ACI and the City presented competent evidence that their substantial interests could be affected.

The Nature of the Proceeding

63. 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 such orders as are necessary to effectuate the control of air and water pollution and enforce the same by all appropriate administrative and judicial proceedings.

64. Respondents contend the AO resolves a violation of Section X.D. of the Conditions of Certification, but Section X.D. has not been violated. A violation 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 administrative order and referred to it as a hybrid between an

22 administrative order and a consent order. Still, Respondents also describe the AO as a pure enforcement action.

66. 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 charges.

67. 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 permit or a modification to the Conditions of Certification, but the AOs 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 DOAH 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.

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69. Section 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 may issue, renew, revise, or reissue the operation permit when one of six specified criteria is satisfied. 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 Abate

70. DEP defines the term abate in Paragraph 37 of the AO as to reduce in amount, degree or intensity; lessen; diminish 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 abate means to stop or terminate. However, this dispute is largely moot because the AO states that [f]or the purposes of this Order the term abate means to reduce. With this caveat, the term abate in the AO 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 abate, as used in the Conditions of Certification, does not mean to reduce.

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71. The term abate 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 Statutes, 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 definitions 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.

72. There is no definition of abate 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 abate.

73. Respondents made no effort to show the definition in the AO is the most commonly accepted meaning 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.

74. In Websters New Collegiate Dictionary, the first definition entry for the word abate is to put an end to.

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

25 is, to reduce or lessen. Most suggested synonyms are associated with the meaning to reduce or lessen. See e.g., Thesaurus.com

75. However, the terms abate and abatement are regularly used in environmental law. Therefore, choosing one of the meanings of abate outside the environmental context is unnecessary and inappropriate.

76. Several environmental statutes use the phrase prevent or abate. This usage is not free of ambiguity, but it is more likely to mean prevent or, if it is already occurring, then stop. See e.g., §§ 376.308, 403.061(9) 403.081(4), and 403.191(1), Fla Stat.

77. Section 373.433, entitled Abatement, refers to injunctions if certain water control structures are violating DEP or water management district standards. The meaning of abatement in this section is clearly to stop the violation, not merely to diminish it.

78. Section 376.12(1) refers to abatement of a prohibited discharge, which means to stop the discharge.

79. Sections 376.09 and 376.305, pertaining to the removal of prohibited discharges, states that polluters shall immediately contain, remove, and abate the discharge, which is not free of ambiguity regarding the intended meaning of the word abate. There are a few other statutes with this kind of ambiguous wording.

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80. Section 403.4154(3) authorizes DEP to abate or substantially reduce hazards caused by phosphogypsum stacks.

In this section, the term abate is clearly intended to mean to stop and to be distinguished from reduce.

81. Section 403.709 refers to an abatement action brought by DEP to bring an illegal waste tire site into compliance. In this context, the word abatement means to stop the violation of waste tire regulations.

82. Section 403.726 is entitled Abatement of imminent hazard caused by hazardous substance and includes a similar statement that DEP shall take and any action necessary to abate or substantially reduce any imminent hazard. In this section, the term abate means to stop.

83. Section 403.727(1)(g) refers to statutory remedies available to the department to abate violations of this act.

In this context, the term abate means to stop.

84. Section 376.11(6) provides for payment of moneys from the Florida Coastal Protection Trust Fund for the abatement of any other potential pollution hazards, which means to end the hazard, not to diminish it.

85. 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

27 be made by law for the abatement 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 abate in section 7(a) was intended to mean to stop pollution. A state policy to only reduce pollution does not sound very ambitious.

86. When these uses of the term abate or abatement 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.

87. 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 abate did not make its meaning clear, it is likely that the intended meaning was to stop.

88. The use of the term abate or similar terms in Florida statutes has not been interpreted by DEP or any court to mean DEP must always require complete restoration 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 compliance.

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89. If the term abate 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

90. Because 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.

91. 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.

92. The AO is not a reasonable exercise of DEPs 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.

93. The AO is not a reasonable exercise of DEPs enforcement 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.

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94. The AO is an unreasonable exercise of DEPs enforcement discretion because the success criteria are inadequate to accomplish DEPs 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, technological, ecological, or other considerations support the reasonableness of going no fresher than 34 PSU. However this record does not show the reasonableness of restricting FPLs options in this manner. FPL should be free to consider and propose options 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 abate westward movement of CCS

30 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 decreasing salinity trends in four monitoring wells near the CCS, but the decreasing 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 saline water interface than was predicted by the modeling, and one of DEPs stated purposes would be thwarted.

iii. In addition, by only using wells near the 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. FPLs 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

31 interface. Instead, DEP stated that FPLs contribution had not been determined. That was the reason given for the enforcement approach taken by DEP. However, the AO does not require FPL to determine its contribution.

95. All of the infirmities in the AO described above can be cured by amending the AO to delete the proposed success criteria and require FPL to submit a Salinity Management Plan that includes an analysis of the factors contributing to the western movement of saltier groundwater and options that could eliminate the CCSs contribution. In this amended form, the AO would not be an enforcement instrument, but would achieve DEPs apparent intent to require further analysis of the problem and its solution.

96. Petitioners claim that DEP should take immediate enforcement action to stop FPLs 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 RECOMMENDED that the Department of Environmental Protection rescind the AO or amend it as described above.

32 DONE AND ENTERED this 15th day of February, 2016, in Tallahassee, Leon County, Florida.

S BRAM D. E. CANTER Administrative 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.

ENDNOTES 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 proceeding, a hearing was held, a Recommended Order was issued, and the matter is now pending before the Governor and Cabinet in their capacity as the State Siting Board.

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

33 Sarah M. Doar, Esquire Benjamin Melnick, Esquire Department of 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 Southwest 2nd Avenue, Suite 945 Miami, Florida 33130 (eServed)

Jonathan P. Steverson, Secretary Department of Environmental Protection Mail Stop 35 3900 Commonwealth Boulevard Tallahassee, Florida 32399 (eServed)

34 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.

UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION Before the Atomic Safety and Licensing Board In the Matter of

)

)

Docket No.

50-250-LA Florida Power & Light Company

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50-251-LA

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(Turkey Point Units 3 and 4)

)

ASLBP No. 15-935-02-LA-BD01 CERTIFICATE OF SERVICE I hereby certify that copies of the foregoing Florida Power & Light Companys Third Notice to the Board Regarding State Administrative Proceeding, were provided to the E-Filing system for service to those individuals on the service list in this proceeding.

Signed (electronically) by, Steven C. Hamrick Florida Power & Light Company 801 Pennsylvania Avenue, N.W. Suite 220 Washington, DC 20004 steven.hamrick@fpl.com 202-349-3496 Dated at Washington, DC this 2nd day of May, 2016