Contributor

Citizen groups say Clean Water Act lawsuit needed now more than ever

Since concerned conservation groups filed the federal Clean Water Act lawsuit against Florida Power & Light (FPL) on July 13, 2016, FPL has attempted to thwart citizens’ efforts to hold the utility accountable for its ongoing pollution in Biscayne Bay. The latest effort is FPL’s argument that the State’s inadequate and untimely enforcement deal with FPL deprives citizens of their rights under the Clean Water Act. FPL’s argument will be heard at 10 a.m. ET on August 3, 2017, in the U.S. District Court, Southern District of Florida before Magistrate Judge Alicia M. Otazo-Reyes at the C. Clyde Atkins Courthouse, 301 North Miami Avenue. The Southern Alliance for Clean Energy (SACE), Tropical Audubon Society (TAS) and Friends of the Everglades (FOE) view FPL’s motion to dismiss as another example of the utility’s ongoing efforts to delay addressing the underlying causes of their Turkey Point facility’s polluting of Biscayne Bay.

Contaminated water leaking from FPL’s failing cooling canal system at Turkey Point has polluted and continues to pollute the Biscayne Aquifer, a sole-source aquifer that provides drinking water to more than 3 million people in the region and to the neighboring Biscayne National Park. In addition, there is clear evidence of contamination of the surface waters of Biscayne National Park caused by discharges from the cooling canal system. This has created the necessity for this citizen suit under the Federal Clean Water Act. Pollution has been documented since 2010 in lower levels, but a March 2016 study from the Miami-Dade County Division of Environmental Resource Management (DERM) and a study by the University of Miami have clearly shown the pollution’s pathway and origin, and how additional contaminants continue to be flushed into the surrounding environment by the actions of FPL.
These reports show Turkey Point’s failing cooling canal system is effectively an “open industrial sewer” with discharges that contains a slew of pollutants including ammonia, phosphorus, total nitrogen, high salinity levels and tritium. Tritium, a radioactive isotope of hydrogen produced by nuclear reactors during routine operations, is often found as a groundwater contaminant at nuclear plants. Elevated levels of radioactive tritium have been documented in both surface and groundwater outside the Turkey Point complex. This information confirms that a growing plume of hyper-saline water and other pollutants have migrated in all directions, leading to consistent pollution of Biscayne Bay. Because tritium is only being produced within the Turkey Point nuclear reactors, its presence provides undeniable evidence that these other contaminants are also coming from the Turkey Point power complex.
Even though FPL represents that they have the situation under control, the citizen lawsuit continues to be a “vote of no confidence” in their proposed remedies. The citizen groups maintain that mechanical draft cooling towers are the best available control technology to fix the underlying problems at Turkey Point, and closing the open industrial cooling canals is the only way to stop the ongoing pollution at Biscayne Bay and prevent additional groundwater contamination at the site.
This is why citizens filed a suit under the Clean Water Act, as stated in the original filing: 

FPL has violated and continues to violate its NPDES Permit by unauthorized discharges of pollutants, including, but not limited to, excess salinity, phosphorus, ammonia, TKN (Total Kjeldahl Nitrogen — a measurement of nitrogen levels), total nitrogen, and radioactive tritium, into waters of the United States in Biscayne Bay. Additionally, FPL has violated its NPDES Permit by discharges of hyper-saline water contaminated with radioactive tritium into ground water, threatening the water supply for Miami-Dade County and the Florida Keys. FPL has also violated the CWA by causing violations of water-quality standards in Biscayne Bay, which is protected from degradation as Outstanding National Resource and Outstanding Florida Waters.

…

Section 301(a) of the Clean Water Act, 33 U.S.C. § 1311(a), prohibits the discharge of pollutants from a point source into waters of the United States unless the discharge is in compliance with various enumerated sections of the Act. Among other things, Section 301(a) prohibits such discharges not authorized by, or in violation of the terms of, an NPDES permit issued pursuant to Section 402 of the Act, 33 U.S.C. § 1342.  Each violation of the permit, and each discharge that is not authorized by the permit, is a violation of the CWA and is enforceable under 33 U.S.C. § 1365(a). 

“After a year of FPL’s legal maneuvers and careful and continued review of FPL’s ‘proposed remedies,’ we continue to view this lawsuit as a vote of no confidence that the proper actions are being taken to protect public health, the environment and the outstanding waters of Biscayne National Park,” said Dr. Stephen A. Smith, executive director for the Southern Alliance for Clean Energy. “We have the right under the Clean Water Act to pursue our case, despite the inadequate and untimely deal the State cut with FPL. We will show there is compelling evidence that FPL has repeatedly violated and continues today to violate the Clean Water Act by operating an open industrial sewer leading to historic and ongoing discharges to the surface waters of Biscayne Bay. These contaminants impact water quality and public health and safety, and FPL needs to take scientifically-sound, aggressive action to address the ongoing pollution and repair the damage that their Turkey Point facility has caused.”
Since 2010, extensive documentation has confirmed that contaminated water from FPL’s network of unlined, porous cooling canals, has been illegally discharged into both the surface waters of Biscayne Bay and the ground waters with a direct connection to the aquifer. This archaic, two-mile-wide by five-mile-long cooling canal system is the only system of its type in the world.
Dr. Jose Barros, president of Tropical Audubon Society, says, “We joined this lawsuit because FPL’s proposed actions are inadequate. Our human population, our two national parks and our threatened wildlife must be better protected. Because the utility is funded largely by ratepayers, FPL has the responsibility to build cooling towers. This will abate the salt loading into Biscayne Bay and the Southern Everglades presently caused by outdated cooling canals. 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.”
Last June, FPL cut a deal in a consent order with Florida’s DEP to attempt to undermine the Clean Water Act lawsuit. After careful review, the citizen groups determined that the consent order is inadequate and addressed this in the amended complaint they filed last October.
“The cooling canal system has never been a closed-loop system and it cannot be fixed, so why are rate payers being asked to pour money into fixing them? New technology should be installed, it will be safer, it will use Dade County’s recycled water, and Turkey Point will no longer be salting up both of our National Parks and our fragile Aquifer. It’s a win-win for everyone,” said Laura Reynolds, consultant for SACE and longtime Everglades Coalition member. “The ever-expanding plume of contaminants is still reaching surface waters and the aquifer that supplies our drinking water. The regulators’ band-aid plan to fix it will likely cause more harm to the surrounding wetlands and increase vulnerability to saltwater intrusion.”
This problem was initially caused when FPL constructed its poorly designed cooling system and made the situation worse when the utility “uprated” its nuclear reactors using advanced cost recovery dollars to increase energy production at the facility as mentioned in the lawsuit:

The cooling canal system is unlined and underlain by porous limestone geology, including the Biscayne Aquifer. The contaminated water in the cooling canal system has for many years discharged, and continues to discharge, from the cooling canal system into Biscayne Bay through a direct hydrologic connection between the cooling canal system and the navigable waters of Biscayne Bay.

In 2012 and 2013, the two nuclear generators were ‘uprated’ to increase power production, resulting in a much higher than predicted increase in the temperature and salinity of the water in the cooling canal system.

As a result of the higher temperature and salinity in the cooling canal system, FPL began adding up to 100 million gallons per day of fresh water to the cooling canal system in 2014. The addition of this fresh water further pushed pollutants from the cooling canal system into the ground water and into Biscayne Bay.

“Citizens of Florida need to recognize that protecting our health and water quality is not a passive exercise,” said Alan Farago, conservation chair of Friends of the Everglades. “With these threats to people and natural resources so clearly visible, if we don’t stand up now, when? We hope federal law can protect us when the state of Florida won’t.”
“FPL’s cooling canal system at Turkey Point is a failed experiment and the company should be required to use the best available technology to stop adding to the damage it has already done,” said Dr. Stephen A. Smith, executive director for SACE. “Operating an open industrial sewer effectively bordered by two national parks and highly protected waters requires the highest standards and strong regulatory oversight. Anything less is unacceptable and that’s why we took action and stand by our lawsuit.”
Additional Information:

• Telepress conference from August 2, 2017 can be downloaded here.
• Find the original July 13, 2016 Clean Water Act lawsuit filing here.
• Find the amended complaint filed on October 11, 2016 here.

Founded in 1985, the Southern Alliance for Clean Energy is a nonprofit organization that 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.
Founded in 1947, 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.
Founded in 1969, 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.