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By Laura Reynolds, ORCA and SACE consultant


On November 16, 2017, The Honorable United States District Judge Darrin P. Gayles after a hearing and de novo review of the record on November 16, 2017 denied FPL’s Motion to Dismiss the Plaintiffs Southern Alliance for Clean Energy (SACE), Friends of Everglades (FOE) and Tropical Audubon Society’s (TAS) lawsuit against FPL for violations of the Clean Water Act and NPDES permit and adopted the recommendations and report of the  Magistrate Judge who heard the case on August 3rd, 2017. Both the Magistrate Judge’s Order and the Order of the District Judge affirming the Magistrate’s Order can be accessed via the above hyperlinks.

Fig 1: Above from left to right is the SACE team: Laura Reynolds, Gary Davis, James Porter, Bonnie Rippingille-Schoedinger, Zac Cosner

The Plaintiffs, comprising conservation organizations, maintain that FPL remedies will not address the source of the pollution, which should be the first step in any clean-up effort. Mechanical draft cooling towers are the best available control technology to fix the underlying problems at Turkey Point, along with the proper closure of the open industrial cooling canals are the only ways to stop the ongoing pollution to Biscayne Bay and Biscayne National Park and to prevent additional groundwater contamination into the Biscayne Aquifer, South Florida’s sole source Federally protected drinking water aquifer.

William Nuttle, who presented at the Ocean Reef Informational in March 2017, is a hydrologist who previously worked for the South Florida Water Management District to study their water budget and is now an expert for the Plaintiffs. He has recently recalculated the salt contribution from cooling canal operations to be 4.5 million pounds of salt loaded per day into the Biscayne Aquifer and Biscayne Bay as a result of FPL operations at Turkey Point. Improving the salinity regime of Biscayne Bay and returning estuarine conditions to the near shore area to support wildlife is the main goal of the Biscayne Bay Coastal Wetlands Project, which is part of the 68 CERP projects within the Everglades Restoration Plan. The excessive salt loading from Turkey Point’s cooling canals is in direct conflict with these goals and with these large volumes of salt there will likely be negligible improvements shown for the multi-million-dollar, tax-funded project. The decision to install cooling towers and the use of reuse water and the complete disconnection from the natural environment has the ability to make or break the success of this very important CERP project.

In the FPL Motion to Dismiss and at the hearing, FPL continued to allege that the 2016 Florida DEP Consent Order and the 2015 DERM Consent Agreement was a bar to the lawsuit. FPL attempted to make the case that the state and local regulators had fully addressed surface-water pollution concerns that were raised in the lawsuit as the grounds for dismissing the lawsuit.   

Lead Attorney Gary Davis, made the argument for the Plaintiffs at the hearing and argued that while DEP and DERM addressed some elements of past ground-water pollution, they failed to address the full scope of surface water discharges and did nothing to abate the source of pollution; that state and local regulatory efforts categorically failed to address the ongoing violations of FPL’s permits.

The Plaintiffs maintain that until comprehensive corrective action is required, such as replacing the antiquated cooling canals with new technology, FPL’s cooling canal system will continue to harm Biscayne Bay and our aquifer.

Based upon the Plaintiffs’ allegations and affidavits of its expert witnesses, the District Judge ruled for the Plaintiffs and denied FPL’s motion to dismiss the lawsuit and the case will now likely be set for trial in 2018.

In a related proceeding, Southern Alliance for Clean Energy (SACE) recently filed its brief with the Florida Public Service Commission (PSC) arguing that customers should not have to pay for the cleanup of the underground contamination plume created by FPL’s negligent operation of the Turkey Point cooling canals for decades. FPL knew or should have known as early as 1978 that the operation of the cooling canals at the Turkey Point plant south of Miami was creating a hyper-saline plume that was polluting the Biscayne Aquifer – the drinking water resource for South Florida.

Moreover, the company in 2009 misled regulators, both the South Florida Water Management District and the Public Service Commission, on the magnitude of its environmental problem – the cleanup is now projected to cost over $200 million and will only include remediation, it does not address abatement of the source of pollution or any mitigation. Stunningly, FPL is requesting that customers pay for the decision to uprate the output of the plant, which made all of the operational issues worse. Southern Alliance for Clean Energy, Office of Public Counsel, and industrial users all filed briefs in opposition to FPL’s unfair request.  Sorab Panday, an expert for the Office of Public Council, explained in his expert testimony why FPL customers should not be held responsible for the company’s negligence. The Commission will consider the briefs filed last week by SACE and other parties in the Environmental Cost Recovery Clause docket and will render a final decision on FPL’s request on December 12, 2017. Over 500 FPL customers have filed letters with the Commission stating that FPL customers shouldn’t have to pay for the company’s mistakes. Use this link to send your own letter to the PSC Commissioners.

Please consider supporting the efforts of these important legal activities by sending a year end contribution to the plaintiffs listed below specifically ear-marked for work related to the continued efforts to bring this company into compliance with their permits and protect our precious resources for future generations. Funding from ORCA has covered scientific investigations to date and the organizations are currently fundraising for the legal expenses at this time.

·       The Southern Alliance for Clean Energy promotes responsible energy choices that work to address the impacts of Global Climate Change and ensure clean, safe, and healthy communities throughout the Southeast. Learn more at www.cleanenergy.org.

·       The Tropical Audubon Society works to conserve and restore natural South Florida ecosystems, focusing on birds, other wildlife and their habitats through advocacy and education for the benefit of biological diversity and humanity itself.  Learn more at www.tropicalaudubon.org.

·       Friends of the Everglades compels government agencies to comply with existing environmental laws, encourages politicians to recognize the long consequences of their actions and spreads awareness of the importance of the Everglades to the South Florida ecosystem. Learn more at www.everglades.org.

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