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Judge rules that citizen groups’ Clean Water Act challenge can move forward

The Honorable United States District Judge Darrin P. Gayles, after a hearing and de novo review of the record on November 16, 2017, denied Florida Power & Light’s (FPL) Motion to Dismiss the Plaintiffs’ lawsuit against FPL for violations of the Clean Water Act and National Pollutant Discharge Elimination System (NPDES) permit caused by their Turkey Point facility near Miami. Judge Gayles also adopted the recommendations and report of Magistrate Judge Otazo-Reyes who heard the case on August 3, 2017. Based on Judge Gayles’ ruling, the case will now likely be set for trial in 2018.

The Plaintiffs, Southern Alliance for Clean Energy (SACE), Friends of Everglades (FOE) and Tropical Audubon Society (TAS), maintain that FPL’s proposed remedies will not stem the pollution from the Turkey Point facility’s open industrial cooling canals. Mechanical draft cooling towers are the best available control technology to fix the underlying problems at Turkey Point along with the closure of the failed cooling canals to stop the pollution seeping to Biscayne Bay and Biscayne National Park, and prevent additional groundwater contamination into the Biscayne Aquifer, South Florida’s sole source drinking water aquifer.

“We are pleased with the judge’s ruling and look forward to our day in court. Once again, FPL has attempted to obstruct legal efforts to scrutinize their illegal behavior that has caused repeated and continuous violations of the Clean Water Act by operating an open industrial sewer at Turkey Point,” said Dr. Stephen A. Smith, executive director for the Southern Alliance for Clean Energy. “FPL’s imprudent actions have led to historic and ongoing discharges to the surface waters of Biscayne Bay that impact water quality and public health and safety. FPL needs to take scientifically-sound, aggressive action to address the ongoing pollution and repair the damage that their Turkey Point facility has caused. Continuing to rely on this failed cooling system is nothing short of utility malpractice.”

“Improving the salinity regime of Biscayne Bay and returning estuarine conditions to the nearshore area to support wildlife are the main goals 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,” said Laura Reynolds, a consultant for Southern Alliance for Clean Energy.

In FPL’s Motion to Dismiss, and at last week’s hearing, FPL continued to allege that the 2016 Florida Department of Environmental Protection (DEP) Consent Order and the 2015 Florida Department of Environmental Resources Management (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.

Dr. Jose Barros, president of Tropical Audubon Society, said, “Despite FPL’s objections to the decision, we are closer to getting our day in court to prove that FPL’s proposed actions are inadequate to protect our communities, our two national parks and our threatened wildlife. FPL and state regulators need to take the necessary steps to respect and protect these fragile ecosystems for the sake of our region’s health and safety. Building cooling towers will abate the salt loading into Biscayne Bay and the Southern Everglades caused by outdated cooling canals.”

Plaintiffs’ Attorney Gary Davis 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. Davis argued that state and local regulatory efforts categorically failed to address the ongoing violations of FPL’s permits.

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

“Judge Gayles’ decision represents an important, initial win for Floridians despite FPL’s continuing efforts to obstruct our case,” said Alan Farago, conservation chair of Friends of the Everglades. “With these threats to people and natural resources so clearly visible, we hope federal law can protect us when the state of Florida won’t. We’ve had our day in court and we will have another and another until FPL fixes its Turkey Point problems, once and for all.”

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. The Commission will render a final decision on FPL’s request in the Environmental Cost Recovery Clause docket on December 12, 2017.

Additional Information:

Find the September 20, 2017 Magistrate Judge Alicia M. Otazo-Reyes’ Report and Recommendation denying FPL’s Motion to Dismiss here.

Find the original July 13, 2016 Clean Water Act lawsuit filing here and the amended complaint filed on October 11, 2016 here.

A telepress conference held by the citizen groups from August 2, 2017, explaining their case can be downloaded here.

Find the filed, expert declaration from Kirk Martin, a hydro-geologist and president of Water Science Associates, explaining the inadequacies with the enforcement efforts by the State (DEP). In August the groups filed a supplemental expert declaration further explaining how the County (DERM) regulatory agreement was similarly inadequate.

 

 

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