ML16026A619

FPL Notice to the Board Regarding State Administrative Proceeding

ML16026A619
Person / Time
Site:	Turkey Point
Issue date:	01/26/2016
From:	Hamrick S C 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 50869
Download: ML16026A619 (30)

Text

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 COMPANY'S NOTICE TO THE BOARD REGARDING STATE ADMINIS TRATIVE PROCEEDING Florida Power & Light Company ("FPL") hereby provides notice to the Board that the Administrative Law Judge considering FPL's application for a modification of the Conditions of Certification for Turkey Point has issued a recommended order in that matter. A copy of the Recommended 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

January 26, 2016 COUNSEL FOR FLORIDA POWER & LIGHT COMPANY

STATE OF FLORIDA DIVISION OF ADMINISTRATIVE HEARINGS FLORIDA POWER AND LIGHT COMPANY TURKEY POINT POWER PLANT UNITS 3-5 MODIFICATION TO CONDITIONS OF CERTIFICATION _______________________________/ Case No. 15-1559EPP RECOMMENDED ORDER The final hearing in this matter was held on December 1-4, 2015, in Miami, Florida, before Bram D. E. Canter, an Administrative Law Judge of the Division of Administrative APPEARANCES For Florida Power and Light Company : Peter C. Cunningham, Esquire Gary V. Perko, Esquire Douglas S. Roberts, Esquire Jonathan Harrison Maurer, Esquire Hopping, Green and Sams, P.A. Post Office Box 6526 Tallahassee, Florida 32314 Peter Cocotos, Esquire Florida Power and Light Company 215 South Monroe Street, Suite 810 Tallahassee, Florida 32301 For Department of Environmental Protection : Sarah M. Doar, Esquire Department of Environmental Protection Office of General Counsel Mail Station 35 3900 Commonwealth Boulevard Tallahassee, Florida 32399 2 For South Florida Water Management District : Carlyn H. Kowalsky, Esquire South Florida Water Management District Mail Stop Code 1410 3301 Gun Club Road West Palm Beach, Florida 33406 For Andrew J. Baumann, Esquire Alfred J. Malefatto, Esquire Rachel B. Santana, Esquire Lewis, Longman and Walker, P.A. 515 North Flagler Drive, Suite 1500 West Palm Beach, Florida 33401 STATEMENT OF THE ISSUE The issue to be determined in this case is whether the Governor and Cabinet, in their capacity as the Siting Board and pursuant to the Florida Electrical Power Plant Siting Act , of Certification for Units 3, 4, and 5 of the Turkey Point Power Plant in southeast Miami-Dade County. PRELIMINARY STATEMENT On September 5, 2014, FPL filed a petition with DEP pursuant to the PPSA, chapter 403, Part II, Florida Statutes, to modify the Conditions of Certification for Turkey Point Units 3, 4, and 5 to authorize three system improvement projectsconstruction and operation of up to six new production wells to mgdAquifer water for use in the Turkey Point cooling canal 3 and temperature management purposes. On December 23, 2014, DEP issued notice of its intent to modify the Conditions of Certification to authorize the three projects proposed by FPL. All required public notices were published by FPL and DEP. On March 19, 2015, DEP issued a final order authorizing the requested modifications for which no objections had been raised. Miami-Dade County, Tropical Audubon Society, Inc., and SFWMD each filed notices of their intent to be parties to the modification proceeding. Miami-Dade County and Tropical Audubon Society, Inc., later voluntarily withdrew from the proceeding. On March 24, 2015, ACI filed a Motion to Intervene, which was opposed by FPL. The motion to intervene was denied for injury, but ACI was granted leave to file another motion to intervene. On April 3, 2015, ACI filed an Amended Motion to Intervene, which was granted. On October 30, 2015, ACI filed a Second Amended Motion to Intervene, which was granted over the objection of FPL. At the final hearing, Joint Exhibits 1-6 were admitted into evidence. FPL presented the testimony of: Steven Scroggs, Senior Director of Project Development for FPL, who was accepted as an expert in power plant engineering, design, and siting; Peter Andersen, P.E., who was accepted as an expert in 4 groundwater hydrology and groundwater flow and transport modeling; and Gregory Powell, Ph.D. FPL also submitted pre-filed expert testimony of: Dr. Powell, James Andersen, Karl Bullock, Kerri Kitchen, Kennard Kosky, and James Lindsay. FPL Exhibits 1-6, 12-13, 19-22, 44, 46, 48, 54-59, and 61 were admitted into evidence. DEP presented the testimony of: Ann Seiler, an Environmental Green, a former Program Administrator for the Siting Coordination Office; and Phillip Coram, a DEP Program Administrator who was accepted as an expert in environmental engineering. DEP Exhibits 23 and 28 were admitted into evidence. SFWMD presented the testimony of: Section Leader for Lower East Coast Planning, Permitting, and Compliance; and Jefferson Giddings, a Principal Scientist at SFWMD who was accepted as an expert in groundwater modeling. SFWMD Exhibits 1, 2, 10, and 13 were admitted into evidence. ACI presented the testimony of: Steve Torcise, Jr., who is issuing National Pollution Discharge Elimination System permits for power plants; Steven Krupa, who is in charge of the and who was accepted as an expert in hydrogeology and geology; William Nuttle, Ph.D., who was accepted as an expert in coastal 5 wetlands hydrology with emphasis in the area of water and salt budgets; Elezier Wexler, who was accepted as an expert in groundwater hydrology and groundwater transport modeling; and Edward Swakon, who was accepted as an expert in groundwater resources and groundwater monitoring. ACI Exhibits 9-11, 14-16, 18, 24-26, 28, 31, 34-36, 38, 42, 48-50, 50A, 51, 52, 57, 61, 63, and 65 were admitted into evidence. No member of the public requested the opportunity to offer testimony on the proposed modification. No written comments were received from the public. The six-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. FINDINGS OF FACT The Parties 1. FPL is a subsidiary of NextEra Energy and a regulated Florida utility. It provides electric service to 4.7 million customers in 35 counties. The Turkey Point Power Plant in southeast Miami-Dade County is one of 14 generating facilities operated by FPL. 2. DEP is the state agency charged with administering the PPSA pursuant to chapter 403, Part II. 3. SFWMD is a regional agency created by chapter 373, Florida Statutes, with regulatory authority over water use 6 permitting within its geographic jurisdiction, which includes the Turkey Point Power Plant site. 4. ACI owns 2,598 acres of land in southeast Miami-Dade County approximately four miles west of the Turkey Point CCS. ACI has used its property for agriculture and limerock mining for many years and continues to do so. 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 of chloride concentrations greater than 250 milligrams per liter mg/L in the mine pit. The Requested Modifications 6. FPL is requesting to modify the Conditions of Certification to authorize three projects related to water use: (1) construction and operation of the new UFA production wells for use in the CCS; (2) utilization of one of the new production wells as a dual purpose well to comply with a recent order of the U.S. Nuclear Regulatory Commission related to providing emergency cooling water supplies for the nuclear-fueled Units 3 and 4; and (3) re-allocation of authorized water withdrawn from an existing production well for Unit 5 (Well No. PW-3) as a source of process water for Units 3 and 4.

7 7. DEP received three written objections to the proposed production wells to provide water for use in the CCS. No objections were raised regarding the two other FPL projects and DEP issued a final order approving those two modifications. This proceeding involves only the proposal to construct and operate new UFA production wells to discharge water into the CCS. Turkey Point 8. covers approximately 9,400 acres in unincorporated Miami-Dade County, located 25 miles south of the City of Miami and 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 as a power generation facility in 2010. Units 3 and 4 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 in compliance with a 1971 consent judgment with the U.S. Department of Justice in order to terminate direct discharges of heated water into Biscayne Bay. 13. The CCS is not a certified facility under the PPSA, but the operation of the power plant. 14. The CCS functions like a radiator, which uses 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 tof 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 comes from process water, rainfall, stormwater runoff, and groundwater infiltration to replace water lost by evaporation and seepage. 17. When the CCS was first constructed, 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 state industrial wastewater permit and National Pollution Discharge state 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. 20. However, because the salt in saltwater is left behind when the water evaporates, the water in the CCS becomes saltier. Salinity levels in the CCS are also affected by the amount of rainfall, air temperature, water temperature, the volume of flow from the power plant, and the rate of water circulation.

10 21. In 2008, when FPL applied for certification of the uprate of Units 3 and 4, it reported average salinity to be 50 to 60 condition, which means the salinity level is higher than is typical for seawater, which is about 35 PSU. 22. 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 80 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 23. The 2008 Conditions of Certification included a e Water, Ground Water, Ecological execute a Fifth Supplemental Agreement regarding the operation and management of the CCS. New monitoring was required and FPL l and horizontal extent of the hyper- 24. In response, FPL installed 14 clusters of groundwater monitoring wells, each cluster allowing data to be collected from shallow, middle, and deep zones of the Biscayne Aquifer.

11 25. In late 2013, salinity levels in the CCS began to spike, reaching a high of 92 PSU in the summer of 2014. 26. FPL presented evidence to show 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. 27. In addition, the retirement of Unit 2 and the uprate of Units 3 and 4 during this time-period reduced flow and circulation in the CCS, which contributed to increased temperatures in the CCS, more evaporation, and higher salinity levels. 28. ACI contends the uprate of Units 3 and 4 is the primary cause of recent, higher water temperatures and higher salinity. predicted the uprate would increase CCS water temperature and salinity, as well as other data indicating a correlation between the uprate and higher temperature and salinity. However, the uprate application was filed before Unit 2 was decommissioned in 2010. FPL presented evidence that elimination of the thermal output from Unit 2 offset the thermal output from the uprate of Units 3 and 4, so that the total thermal output is now about four percent less. ACI did not refute this thermal output calculation.

12 29. It is undisputed that evaporation is the main cause of hypersalinity in the CCS, but the testimony about the recent spike in salinity and the relative influence of contributing factors shows it is a complex subject due to the number of factors, most of which vary by season and even daily. The relative contribution of the factors affecting salinity in the CCS is one that scientists can disagree about because the analyses that have been conducted to date are not comprehensive or meticulous enough to end reasonable disagreement. 30. 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 31. Historical data shows that when the CCS was constructed in the 1970s, saltwater had already intruded inland along the coast due to water withdrawals, flood control structures, and other human activities. 32. An interceptor ditch was constructed just west of and adjacent to the CCS to restrict the movement of saline water west of the ditch. This was supposed to be accomplished by pumping 13 water out of the ditch as necessary to keep its water level lower than the water level in the more western L-31E Canal so that a hydraulic gradient toward the east was maintained. is referred to as the saline water interface. More specifically, the saline water interface is where groundwater with chloride concentration of 10,000 mg/L or greater meets groundwater with a lower chloride concentration. DEP classifies groundwater with a chloride concentration less than 10,000 mg/L as G-II groundwater, and groundwater with a chloride 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 G-II and G-III groundwaters. 34. In the 1980s, the saline water interface had moved just west of the CCS interceptor ditch. Now, the saline water interface is four or five miles west of the CCS, and it is still moving west. 35. 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.

14 36. CCS saline waters have also been detected northwest of the CCS, moving in the direction of Miami-water supply wellfields. 37. The hypersaline plume pushes the saline water interface further west. Although Respondents indicated there are other factors that affect saltwater intrusion, the preponderance of the evidence shows the CCS is now the primary reason the saltwater interface in this area is continuing to move inland. 38.Section X of the Conditions of Certification provides that, if monitoring data indicate harm or potential harm to the waters of the State, then additional measures shall be required by DEP to evaluate or to abate such impacts. DEP determined that the CCS is harming waters of the State by contributing to saltwater intrusion. Saltwater intrusion reduces the amount of fresh groundwater available for natural resources and water users. 39. ACI estimated that, with each day that passes, the westward march of the saltwater interface is causing the loss of 855,000 more gallons of fresh groundwater from the Biscayne Aquifer. Even if the amount is only half as much, it is a substantial loss. 40. The Biscayne Aquifer is the main source of potable water in Miami-Dade County and is designated by the federal 15 government as a sole source aquifer under the Safe Drinking Water Act. 41. When FPL applied to renew its NPDES permit, DEP was concerned about the effect the CCS was having on saltwater intrusion. DEP decided to administratively extend the NPDES permit, rather than renew it, while the agency determined what action should be taken to deal with the problem. 42. On December 23, 2014, DEP issued an Administrative Order that requires FPL to prepare and submit for review and approval a Salinity Management Plan to reduce hypersaline conditions and their effect on saline water intrusion. The AO was challenged in a separate administrative proceeding and is not yet in effect. 43. A DEP administrator stated that DEP has not been able to identify a specific violation of state water quality standards attributable to the CCS, but his explanation did not reconcile the undisputed evidence that the CCS has a groundwater discharge of hypersaline water that is contributing to saltwater intrusion. Florida Administrative Code Rule 62-icial use of 44. As explained in the Conclusions of Law, this is not an enforcement proceeding. However, Respondents thought it was 16 water quality violation. If so, it is relevant for the Administrative Law Judge to state that the record evidence and applicable law indicate FPL is in violation of the minimum criteria for groundwater in rule 62-520.400. Effect of the Proposed Modification on Saltwater Intrusion 45. Respondents emphasize that the FPL proposal is better Certification require FPL to take action because operation of the better than taking no action is no more meaningful than asserting 46. FPL estimated that the addition of 14 mgd of water from the UFA, which has a salinity of about 2 PSU, would reduce salinity in the CCS to the salinity in Biscayne Bay, about 35 . 47. Adding UFA water to the CCS would also reduce water temperatures in the CCS. That is important in order to avoid exceeding the temperature limit imposed by the Nuclear Regulatory Commission on operation of the nuclear units, Units 3 and 4. The temperature limit is 104 degrees Fahrenheit and, if exceeded, would require Units 3 and 4 to be shut down.

17 48. The FPL proposal would remove the source of the hypersaline water. Hypersaline water would no longer be sinking beneath the CCS. 49. FPL presented evidence to show the low saline water would begin to mix with the hypersaline water already in the Biscayne Aquifer, the groundwater in the area would steadily the hypersaline plume would begin to shrink and eventually disappear. 50. ACI pointed out that the salt in the CCS and in the Biscayne Aquifer would not disappear, but ACI did not explain the significance of that fact. ACI did not explain how the modeling efforts by FPL failed to account for salt or explain how the groundwater in the area would steadily freshen and the hypersaline plume would shrink and eventually disappear. 51. The testimony of persuasive in showing the two-dimensional groundwater model used by FPL and SFWMD to analyze and predict the effect of adding UFA water to the CCS was not the best tool for the task. A two-dimensional model cannot account for some of the factors affecting water movement and salinity. A three-dimensional model produces more reliable results and is a better predictive tool for these purposes. Nevertheless, differences between the results obtained from the two-dimensional modeling by FPL and the 18 three-dimensional modeling by ACI do not affect the recommendation to the Siting Board. 52. FPL and SFWMD estimated that the addition of 14 mgd of water into the CCS would reduce the rate of westward movement of CCS hypersaline saline waters in the Biscayne Aquifer and this, in turn, would slow the westward movement of the saline water interface. 53. No party believes the FPL proposal will halt the westward movement of the saline water interface. 54. ACI contends the FPL proposal would worsen groundwater conditions because adding water to the CCS would increase the groundwaters in the Biscayne Aquifer, and a greater push on the existing hypersaline plume. However, the water in the CCS would experts said would offset the increase in volume. ACI did not show how water density was accounted for in its own analyses. In s 38, 39, 42, 51, and 63 appear to support of saltwater intrusion. 55. The effect of the FPL proposal on the hypersaline plume is the most difficult question in the case. The evidence presented necessarily relied on many assumptions about physical features and processes, some of which had to be simplified for 19 but FPL met its prima facie burden to demonstrate that the proposed water use would be consistent with the public interest because the modification would improve current groundwater 56. Respondents estimate that it would take about 25 years for the saline wproposal is implemented. advancing contour of much lower salinity, 250 mg/L, because this property in 10 years, even with the FPL proposal. Water Use Regulatory Criteria 58. ACI did not raise any issues regarding FPLwith SFWMD water use criteria associated with the proposed withdrawal, itself. ACI does not contend that the proposed withdrawal of 14 mgd of water from the UFA would interfere with existing legal uses, cause saltwater intrusion, harm wetlands and surface waters, or adversely affect off-site land uses. 59. SFWMD reviewed the proposed use of the UFA water in the CCS for consistency with the public interest and determined that 20 the use was consistent because it would improve current conditions in the CCS and Biscayne Aquifer. 60. FPL provided reasonable assurance that the FPL proposal meets all applicable water use regulatory criteria. PPSA Criteria for Approval 61. For the reasons stated above, the record evidence supports an affirmative determination by the Siting Board regarding the certification criteria in section 403.509(3)(a) through (g). CONCLUSIONS OF LAW Standing 62. Section 403.508(3)(e) describes the parties to a PPSA certification proceeding as including persons whose substantial interests are affected and being determined by the proceeding and who timely file a motion to intervene. 63. ACI has standing in this proceeding because the Conditions of Certification acknowledge and address the potential for harm to water resources caused by the CCS. The harm encompasses lethat will be affected by the operation of the CCS. 64. Respondents cite Agrico v. Department of Environmental Regulation, 406 So. 2d 478, 482 (Fla. 2d DCA 1981), in support of their argument that ACI has not demonstrated standing because the proposed modification does not present an immediate threat to 21 The injury to ACI is immediate in the sense that it is predictable based on current conditions and does not require the occurrence of intervinjury is no less immediate than the injury that would be suffered by anyone downstream of a pollution source, when the the time of impact can be calculated by accepted scientific methods. Burden and Standard of Proof 65. Respondents state that FPL, as the applicant for certification, has the ultimate burden of persuasion to demonstrate entitlement to the requested modifications, citing In re: Progress Energy Florida Levy Nuclear Project Units 1 and 2, 2009 Fla. ENV LEXIS 151 at *114; and Florida Department of Transportation v. J.W.C. Co., Inc., 396 So. 2d 778, 787 (Fla. 1st DCA 1981). However, those cases pre-date the amendment of chapter 120, Florida Statutes, to create section 120.569(2)(p). This section now places the ultimate burden of persuasion on the challenger in all licensing proceedings arising under chapter 403 after the permit applicant has introduced the permit file constituting its prima facie case. This is a licensing proceeding arising under chapter 403. Therefore, ACI has the ultimate burden of persuasion in this proceeding.

22 66. The standard of proof is a preponderance of the evidence. See § 120.57(1)(j), Fla. Stat. (2015). FPL must demonstrate by a preponderance of the evidence that it has provided reasonable assurances of its compliance with all applicable regulatory criteria. Reasonable assurance Metro. Dade Cnty. v. Coscan Fla., Inc., 609 So. 2d 644, 648 (Fla. 3d DCA 1992). It does not require absolute guarantees. Nonprocedural Agency Requirements 67. water use] permit pursuant to the provisions of this chapter, the applicant must establish that the proposed use of water: (a) Is a reasonable-beneficial use as defined in s. 373.019; (b) Will not interfere with any presently existing legal use of water; and, (c) Is consistent with the public interest 68. ACI claims in its Proposed Recommended Order that FPL failed to demonstrate a need for the amount of water it requested and did not consider mitigative measures, but these issues were 69. ACI claims the proposed use of the 14 mgd of water, in contrast to the withdrawal of the water, was not properly reviewed by SFWMD under the reasonable-beneficial use criteria. However, SFWMD reviewed the proposed use of the water under the 23 public interest test, which is consistent with its rules and practices. The FPL proposal is consistent with the public interest because it would likely improve current groundwater conditions. It would also reduce water temperature in the CCS to avoid the shutdown of the nuclear generating units pursuant to Nuclear Regulatory Commission requirements. inconsistencies with the industrial wastewater/NPDES permit. 71. FPL provided reasonable assurance that the proposed modification would comply with all applicable water use regulatory criteria. 72. However, ACI urges the Siting Board to deny the proposed modification because ACI believes it perpetuates a problem created by the CCS and fails to prevent the eventual contamination of the groundwater resources that ACI relies on for its agricultural and mining operations. ACI does not propose a approved. 73. ACI points out that the Conditions of Certification are Because the preponderance of the evidence demonstrates the FPL proposal would result in an improvement in groundwater conditions, the requested modification, itself, does not fail to comply with the Conditions of Certification.

24 74. Respondents are probably correct that, in this would result in an improvement over current groundwater conditions. However, it is appropriate to inform the Siting Board that the operation of the Turkey Point Power Plant, as authorized by the Siting Board under the Conditions of Certification, has caused harm to water resources because of the effects of the CCS, and the modification requested by FPL will not prevent further harm from occurring. RECOMMENDATION Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Siting Board enter a final order approving the modifications to the Turkey Point Conditions of Certification as proposed on December 23, 2014, with the addition of the following condition, which was stipulated by the parties: FPL shall monitor the proposed Floridan production wells (F-1, F-2, F-3, F-4 and F-5) on a quarterly basis for: water level or pressure; temperature; pH, Total Dissolved Solids; specific conductance; major anions/cations (including chlorides); NH3; total nitrogen; and total phosphorus. This monitoring data shall be made available to Miami-Dade County as well as FDEP and the SFWMD. On a semi-annual basis, Miami-Dade County may collect groundwater samples of the proposed Floridan production wells (F-1, F-2, F-3, F-4 and F-5) for constituents including 25 but not limited to 018/16 and Strontium (87Sr/86Sr). DONE AND ENTERED this 25th day of January, 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 25th day of January, 2016. COPIES FURNISHED: Sarah M. Doar, Esquire Department of Environmental Protection Office of General Counsel Mail Station 35 3900 Commonwealth Boulevard Tallahassee, Florida 32399 (eServed) Peter C. Cunningham, Esquire Gary V. Perko, Esquire Douglas S. Roberts, Esquire Jonathan Harrison Maurer, Esquire Hopping, Green and Sams, P.A. Post Office Box 6526 Tallahassee, Florida 32314 (eServed) 26 Peter Cocotos, Esquire Florida Power and Light Company 215 South Monroe Street, Suite 810 Tallahassee, Florida 32301 (eServed) Carlyn H. Kowalsky, Esquire South Florida Water Management District Mail Stop Code 1410 3301 Gun Club Road West Palm Beach, Florida 33406 (eServed) Andrew J. Baumann, Esquire Alfred J. Malefatto, Esquire Rachel B. Santana, Esquire Lewis, Longman and Walker, P.A. 515 North Flagler Drive, Suite 1500 West Palm Beach, Florida 33401 (eServed) Abbie Schwaderer Raurell, Esquire Miami-Dade County Attorney's Office 111 Northwest 1st Street, Suite 2810 Miami, Florida 33128 (eServed) Anthony Justin Pinzino, Esquire Florida Fish and Wildlife Conservation Commission Farris Bryant Building 620 South Meridian Street Tallahassee, Florida 32399-1600 (eServed) Adam Teitzman, Esquire Florida Public Service Commission 2450 Shumard Oak Boulevard Tallahassee, Florida 32399-0850 Samuel S. Goren, Esquire Goren, Cherof, Doody and Ezrol, P.A. 3099 East Commercial Boulevard, Suite 200 Fort Lauderdale, Florida 33308-4311 27 Kimberly Clark Menchion, Esquire Department of Transportation Mail Station 58 605 Suwannee Street Tallahassee, Florida 32399 (eServed) Deena Woodward Department of State Division of Historical Resources RA Gray Building, 4th Floor 500 South Bronough Street Tallahassee, Florida 32399 Edwin A. Steinmeyer, Esquire Steinmeyer Fiveash LLP 310 West College Avenue Tallahassee, Florida 32301 (eServed) Christina Arzillo Shideler, Esquire Department of Economic Opportunity MSC 110 107 East Madison Street Tallahassee, Florida 32399 (eServed) Lea Crandall, Agency Clerk Department of Environmental Protection Mail Station 35 3900 Commonwealth Boulevard Tallahassee, Florida 32399 (eServed) Jonathan P. Steverson, Secretary Department of Environmental Protection Mail Station 35 3900 Commonwealth Boulevard Tallahassee, Florida 32399 (eServed) Craig Varn, General Counsel Department of Environmental Protection Mail Station 35 3900 Commonwealth Boulevard Tallahassee, Florida 32399 (eServed) 28 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

)

(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 Company's Notice to the Board Regarding State Administrative Proceeding," were provided to the E-Filing system for service to those individuals on th e 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 26th day of January, 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 COMPANY'S NOTICE TO THE BOARD REGARDING STATE ADMINIS TRATIVE PROCEEDING Florida Power & Light Company ("FPL") hereby provides notice to the Board that the Administrative Law Judge considering FPL's application for a modification of the Conditions of Certification for Turkey Point has issued a recommended order in that matter. A copy of the Recommended 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

January 26, 2016 COUNSEL FOR FLORIDA POWER & LIGHT COMPANY

STATE OF FLORIDA DIVISION OF ADMINISTRATIVE HEARINGS FLORIDA POWER AND LIGHT COMPANY TURKEY POINT POWER PLANT UNITS 3-5 MODIFICATION TO CONDITIONS OF CERTIFICATION _______________________________/ Case No. 15-1559EPP RECOMMENDED ORDER The final hearing in this matter was held on December 1-4, 2015, in Miami, Florida, before Bram D. E. Canter, an Administrative Law Judge of the Division of Administrative APPEARANCES For Florida Power and Light Company : Peter C. Cunningham, Esquire Gary V. Perko, Esquire Douglas S. Roberts, Esquire Jonathan Harrison Maurer, Esquire Hopping, Green and Sams, P.A. Post Office Box 6526 Tallahassee, Florida 32314 Peter Cocotos, Esquire Florida Power and Light Company 215 South Monroe Street, Suite 810 Tallahassee, Florida 32301 For Department of Environmental Protection : Sarah M. Doar, Esquire Department of Environmental Protection Office of General Counsel Mail Station 35 3900 Commonwealth Boulevard Tallahassee, Florida 32399 2 For South Florida Water Management District : Carlyn H. Kowalsky, Esquire South Florida Water Management District Mail Stop Code 1410 3301 Gun Club Road West Palm Beach, Florida 33406 For Andrew J. Baumann, Esquire Alfred J. Malefatto, Esquire Rachel B. Santana, Esquire Lewis, Longman and Walker, P.A. 515 North Flagler Drive, Suite 1500 West Palm Beach, Florida 33401 STATEMENT OF THE ISSUE The issue to be determined in this case is whether the Governor and Cabinet, in their capacity as the Siting Board and pursuant to the Florida Electrical Power Plant Siting Act , of Certification for Units 3, 4, and 5 of the Turkey Point Power Plant in southeast Miami-Dade County. PRELIMINARY STATEMENT On September 5, 2014, FPL filed a petition with DEP pursuant to the PPSA, chapter 403, Part II, Florida Statutes, to modify the Conditions of Certification for Turkey Point Units 3, 4, and 5 to authorize three system improvement projectsconstruction and operation of up to six new production wells to mgdAquifer water for use in the Turkey Point cooling canal 3 and temperature management purposes. On December 23, 2014, DEP issued notice of its intent to modify the Conditions of Certification to authorize the three projects proposed by FPL. All required public notices were published by FPL and DEP. On March 19, 2015, DEP issued a final order authorizing the requested modifications for which no objections had been raised. Miami-Dade County, Tropical Audubon Society, Inc., and SFWMD each filed notices of their intent to be parties to the modification proceeding. Miami-Dade County and Tropical Audubon Society, Inc., later voluntarily withdrew from the proceeding. On March 24, 2015, ACI filed a Motion to Intervene, which was opposed by FPL. The motion to intervene was denied for injury, but ACI was granted leave to file another motion to intervene. On April 3, 2015, ACI filed an Amended Motion to Intervene, which was granted. On October 30, 2015, ACI filed a Second Amended Motion to Intervene, which was granted over the objection of FPL. At the final hearing, Joint Exhibits 1-6 were admitted into evidence. FPL presented the testimony of: Steven Scroggs, Senior Director of Project Development for FPL, who was accepted as an expert in power plant engineering, design, and siting; Peter Andersen, P.E., who was accepted as an expert in 4 groundwater hydrology and groundwater flow and transport modeling; and Gregory Powell, Ph.D. FPL also submitted pre-filed expert testimony of: Dr. Powell, James Andersen, Karl Bullock, Kerri Kitchen, Kennard Kosky, and James Lindsay. FPL Exhibits 1-6, 12-13, 19-22, 44, 46, 48, 54-59, and 61 were admitted into evidence. DEP presented the testimony of: Ann Seiler, an Environmental Green, a former Program Administrator for the Siting Coordination Office; and Phillip Coram, a DEP Program Administrator who was accepted as an expert in environmental engineering. DEP Exhibits 23 and 28 were admitted into evidence. SFWMD presented the testimony of: Section Leader for Lower East Coast Planning, Permitting, and Compliance; and Jefferson Giddings, a Principal Scientist at SFWMD who was accepted as an expert in groundwater modeling. SFWMD Exhibits 1, 2, 10, and 13 were admitted into evidence. ACI presented the testimony of: Steve Torcise, Jr., who is issuing National Pollution Discharge Elimination System permits for power plants; Steven Krupa, who is in charge of the and who was accepted as an expert in hydrogeology and geology; William Nuttle, Ph.D., who was accepted as an expert in coastal 5 wetlands hydrology with emphasis in the area of water and salt budgets; Elezier Wexler, who was accepted as an expert in groundwater hydrology and groundwater transport modeling; and Edward Swakon, who was accepted as an expert in groundwater resources and groundwater monitoring. ACI Exhibits 9-11, 14-16, 18, 24-26, 28, 31, 34-36, 38, 42, 48-50, 50A, 51, 52, 57, 61, 63, and 65 were admitted into evidence. No member of the public requested the opportunity to offer testimony on the proposed modification. No written comments were received from the public. The six-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. FINDINGS OF FACT The Parties 1. FPL is a subsidiary of NextEra Energy and a regulated Florida utility. It provides electric service to 4.7 million customers in 35 counties. The Turkey Point Power Plant in southeast Miami-Dade County is one of 14 generating facilities operated by FPL. 2. DEP is the state agency charged with administering the PPSA pursuant to chapter 403, Part II. 3. SFWMD is a regional agency created by chapter 373, Florida Statutes, with regulatory authority over water use 6 permitting within its geographic jurisdiction, which includes the Turkey Point Power Plant site. 4. ACI owns 2,598 acres of land in southeast Miami-Dade County approximately four miles west of the Turkey Point CCS. ACI has used its property for agriculture and limerock mining for many years and continues to do so. 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 of chloride concentrations greater than 250 milligrams per liter mg/L in the mine pit. The Requested Modifications 6. FPL is requesting to modify the Conditions of Certification to authorize three projects related to water use: (1) construction and operation of the new UFA production wells for use in the CCS; (2) utilization of one of the new production wells as a dual purpose well to comply with a recent order of the U.S. Nuclear Regulatory Commission related to providing emergency cooling water supplies for the nuclear-fueled Units 3 and 4; and (3) re-allocation of authorized water withdrawn from an existing production well for Unit 5 (Well No. PW-3) as a source of process water for Units 3 and 4.

7 7. DEP received three written objections to the proposed production wells to provide water for use in the CCS. No objections were raised regarding the two other FPL projects and DEP issued a final order approving those two modifications. This proceeding involves only the proposal to construct and operate new UFA production wells to discharge water into the CCS. Turkey Point 8. covers approximately 9,400 acres in unincorporated Miami-Dade County, located 25 miles south of the City of Miami and 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 as a power generation facility in 2010. Units 3 and 4 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 in compliance with a 1971 consent judgment with the U.S. Department of Justice in order to terminate direct discharges of heated water into Biscayne Bay. 13. The CCS is not a certified facility under the PPSA, but the operation of the power plant. 14. The CCS functions like a radiator, which uses 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 tof 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 comes from process water, rainfall, stormwater runoff, and groundwater infiltration to replace water lost by evaporation and seepage. 17. When the CCS was first constructed, 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 state industrial wastewater permit and National Pollution Discharge state 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. 20. However, because the salt in saltwater is left behind when the water evaporates, the water in the CCS becomes saltier. Salinity levels in the CCS are also affected by the amount of rainfall, air temperature, water temperature, the volume of flow from the power plant, and the rate of water circulation.

10 21. In 2008, when FPL applied for certification of the uprate of Units 3 and 4, it reported average salinity to be 50 to 60 condition, which means the salinity level is higher than is typical for seawater, which is about 35 PSU. 22. 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 80 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 23. The 2008 Conditions of Certification included a e Water, Ground Water, Ecological execute a Fifth Supplemental Agreement regarding the operation and management of the CCS. New monitoring was required and FPL l and horizontal extent of the hyper- 24. In response, FPL installed 14 clusters of groundwater monitoring wells, each cluster allowing data to be collected from shallow, middle, and deep zones of the Biscayne Aquifer.

11 25. In late 2013, salinity levels in the CCS began to spike, reaching a high of 92 PSU in the summer of 2014. 26. FPL presented evidence to show 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. 27. In addition, the retirement of Unit 2 and the uprate of Units 3 and 4 during this time-period reduced flow and circulation in the CCS, which contributed to increased temperatures in the CCS, more evaporation, and higher salinity levels. 28. ACI contends the uprate of Units 3 and 4 is the primary cause of recent, higher water temperatures and higher salinity. predicted the uprate would increase CCS water temperature and salinity, as well as other data indicating a correlation between the uprate and higher temperature and salinity. However, the uprate application was filed before Unit 2 was decommissioned in 2010. FPL presented evidence that elimination of the thermal output from Unit 2 offset the thermal output from the uprate of Units 3 and 4, so that the total thermal output is now about four percent less. ACI did not refute this thermal output calculation.

12 29. It is undisputed that evaporation is the main cause of hypersalinity in the CCS, but the testimony about the recent spike in salinity and the relative influence of contributing factors shows it is a complex subject due to the number of factors, most of which vary by season and even daily. The relative contribution of the factors affecting salinity in the CCS is one that scientists can disagree about because the analyses that have been conducted to date are not comprehensive or meticulous enough to end reasonable disagreement. 30. 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 31. Historical data shows that when the CCS was constructed in the 1970s, saltwater had already intruded inland along the coast due to water withdrawals, flood control structures, and other human activities. 32. An interceptor ditch was constructed just west of and adjacent to the CCS to restrict the movement of saline water west of the ditch. This was supposed to be accomplished by pumping 13 water out of the ditch as necessary to keep its water level lower than the water level in the more western L-31E Canal so that a hydraulic gradient toward the east was maintained. is referred to as the saline water interface. More specifically, the saline water interface is where groundwater with chloride concentration of 10,000 mg/L or greater meets groundwater with a lower chloride concentration. DEP classifies groundwater with a chloride concentration less than 10,000 mg/L as G-II groundwater, and groundwater with a chloride 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 G-II and G-III groundwaters. 34. In the 1980s, the saline water interface had moved just west of the CCS interceptor ditch. Now, the saline water interface is four or five miles west of the CCS, and it is still moving west. 35. 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.

14 36. CCS saline waters have also been detected northwest of the CCS, moving in the direction of Miami-water supply wellfields. 37. The hypersaline plume pushes the saline water interface further west. Although Respondents indicated there are other factors that affect saltwater intrusion, the preponderance of the evidence shows the CCS is now the primary reason the saltwater interface in this area is continuing to move inland. 38.Section X of the Conditions of Certification provides that, if monitoring data indicate harm or potential harm to the waters of the State, then additional measures shall be required by DEP to evaluate or to abate such impacts. DEP determined that the CCS is harming waters of the State by contributing to saltwater intrusion. Saltwater intrusion reduces the amount of fresh groundwater available for natural resources and water users. 39. ACI estimated that, with each day that passes, the westward march of the saltwater interface is causing the loss of 855,000 more gallons of fresh groundwater from the Biscayne Aquifer. Even if the amount is only half as much, it is a substantial loss. 40. The Biscayne Aquifer is the main source of potable water in Miami-Dade County and is designated by the federal 15 government as a sole source aquifer under the Safe Drinking Water Act. 41. When FPL applied to renew its NPDES permit, DEP was concerned about the effect the CCS was having on saltwater intrusion. DEP decided to administratively extend the NPDES permit, rather than renew it, while the agency determined what action should be taken to deal with the problem. 42. On December 23, 2014, DEP issued an Administrative Order that requires FPL to prepare and submit for review and approval a Salinity Management Plan to reduce hypersaline conditions and their effect on saline water intrusion. The AO was challenged in a separate administrative proceeding and is not yet in effect. 43. A DEP administrator stated that DEP has not been able to identify a specific violation of state water quality standards attributable to the CCS, but his explanation did not reconcile the undisputed evidence that the CCS has a groundwater discharge of hypersaline water that is contributing to saltwater intrusion. Florida Administrative Code Rule 62-icial use of 44. As explained in the Conclusions of Law, this is not an enforcement proceeding. However, Respondents thought it was 16 water quality violation. If so, it is relevant for the Administrative Law Judge to state that the record evidence and applicable law indicate FPL is in violation of the minimum criteria for groundwater in rule 62-520.400. Effect of the Proposed Modification on Saltwater Intrusion 45. Respondents emphasize that the FPL proposal is better Certification require FPL to take action because operation of the better than taking no action is no more meaningful than asserting 46. FPL estimated that the addition of 14 mgd of water from the UFA, which has a salinity of about 2 PSU, would reduce salinity in the CCS to the salinity in Biscayne Bay, about 35 . 47. Adding UFA water to the CCS would also reduce water temperatures in the CCS. That is important in order to avoid exceeding the temperature limit imposed by the Nuclear Regulatory Commission on operation of the nuclear units, Units 3 and 4. The temperature limit is 104 degrees Fahrenheit and, if exceeded, would require Units 3 and 4 to be shut down.

17 48. The FPL proposal would remove the source of the hypersaline water. Hypersaline water would no longer be sinking beneath the CCS. 49. FPL presented evidence to show the low saline water would begin to mix with the hypersaline water already in the Biscayne Aquifer, the groundwater in the area would steadily the hypersaline plume would begin to shrink and eventually disappear. 50. ACI pointed out that the salt in the CCS and in the Biscayne Aquifer would not disappear, but ACI did not explain the significance of that fact. ACI did not explain how the modeling efforts by FPL failed to account for salt or explain how the groundwater in the area would steadily freshen and the hypersaline plume would shrink and eventually disappear. 51. The testimony of persuasive in showing the two-dimensional groundwater model used by FPL and SFWMD to analyze and predict the effect of adding UFA water to the CCS was not the best tool for the task. A two-dimensional model cannot account for some of the factors affecting water movement and salinity. A three-dimensional model produces more reliable results and is a better predictive tool for these purposes. Nevertheless, differences between the results obtained from the two-dimensional modeling by FPL and the 18 three-dimensional modeling by ACI do not affect the recommendation to the Siting Board. 52. FPL and SFWMD estimated that the addition of 14 mgd of water into the CCS would reduce the rate of westward movement of CCS hypersaline saline waters in the Biscayne Aquifer and this, in turn, would slow the westward movement of the saline water interface. 53. No party believes the FPL proposal will halt the westward movement of the saline water interface. 54. ACI contends the FPL proposal would worsen groundwater conditions because adding water to the CCS would increase the groundwaters in the Biscayne Aquifer, and a greater push on the existing hypersaline plume. However, the water in the CCS would experts said would offset the increase in volume. ACI did not show how water density was accounted for in its own analyses. In s 38, 39, 42, 51, and 63 appear to support of saltwater intrusion. 55. The effect of the FPL proposal on the hypersaline plume is the most difficult question in the case. The evidence presented necessarily relied on many assumptions about physical features and processes, some of which had to be simplified for 19 but FPL met its prima facie burden to demonstrate that the proposed water use would be consistent with the public interest because the modification would improve current groundwater 56. Respondents estimate that it would take about 25 years for the saline wproposal is implemented. advancing contour of much lower salinity, 250 mg/L, because this property in 10 years, even with the FPL proposal. Water Use Regulatory Criteria 58. ACI did not raise any issues regarding FPLwith SFWMD water use criteria associated with the proposed withdrawal, itself. ACI does not contend that the proposed withdrawal of 14 mgd of water from the UFA would interfere with existing legal uses, cause saltwater intrusion, harm wetlands and surface waters, or adversely affect off-site land uses. 59. SFWMD reviewed the proposed use of the UFA water in the CCS for consistency with the public interest and determined that 20 the use was consistent because it would improve current conditions in the CCS and Biscayne Aquifer. 60. FPL provided reasonable assurance that the FPL proposal meets all applicable water use regulatory criteria. PPSA Criteria for Approval 61. For the reasons stated above, the record evidence supports an affirmative determination by the Siting Board regarding the certification criteria in section 403.509(3)(a) through (g). CONCLUSIONS OF LAW Standing 62. Section 403.508(3)(e) describes the parties to a PPSA certification proceeding as including persons whose substantial interests are affected and being determined by the proceeding and who timely file a motion to intervene. 63. ACI has standing in this proceeding because the Conditions of Certification acknowledge and address the potential for harm to water resources caused by the CCS. The harm encompasses lethat will be affected by the operation of the CCS. 64. Respondents cite Agrico v. Department of Environmental Regulation, 406 So. 2d 478, 482 (Fla. 2d DCA 1981), in support of their argument that ACI has not demonstrated standing because the proposed modification does not present an immediate threat to 21 The injury to ACI is immediate in the sense that it is predictable based on current conditions and does not require the occurrence of intervinjury is no less immediate than the injury that would be suffered by anyone downstream of a pollution source, when the the time of impact can be calculated by accepted scientific methods. Burden and Standard of Proof 65. Respondents state that FPL, as the applicant for certification, has the ultimate burden of persuasion to demonstrate entitlement to the requested modifications, citing In re: Progress Energy Florida Levy Nuclear Project Units 1 and 2, 2009 Fla. ENV LEXIS 151 at *114; and Florida Department of Transportation v. J.W.C. Co., Inc., 396 So. 2d 778, 787 (Fla. 1st DCA 1981). However, those cases pre-date the amendment of chapter 120, Florida Statutes, to create section 120.569(2)(p). This section now places the ultimate burden of persuasion on the challenger in all licensing proceedings arising under chapter 403 after the permit applicant has introduced the permit file constituting its prima facie case. This is a licensing proceeding arising under chapter 403. Therefore, ACI has the ultimate burden of persuasion in this proceeding.

22 66. The standard of proof is a preponderance of the evidence. See § 120.57(1)(j), Fla. Stat. (2015). FPL must demonstrate by a preponderance of the evidence that it has provided reasonable assurances of its compliance with all applicable regulatory criteria. Reasonable assurance Metro. Dade Cnty. v. Coscan Fla., Inc., 609 So. 2d 644, 648 (Fla. 3d DCA 1992). It does not require absolute guarantees. Nonprocedural Agency Requirements 67. water use] permit pursuant to the provisions of this chapter, the applicant must establish that the proposed use of water: (a) Is a reasonable-beneficial use as defined in s. 373.019; (b) Will not interfere with any presently existing legal use of water; and, (c) Is consistent with the public interest 68. ACI claims in its Proposed Recommended Order that FPL failed to demonstrate a need for the amount of water it requested and did not consider mitigative measures, but these issues were 69. ACI claims the proposed use of the 14 mgd of water, in contrast to the withdrawal of the water, was not properly reviewed by SFWMD under the reasonable-beneficial use criteria. However, SFWMD reviewed the proposed use of the water under the 23 public interest test, which is consistent with its rules and practices. The FPL proposal is consistent with the public interest because it would likely improve current groundwater conditions. It would also reduce water temperature in the CCS to avoid the shutdown of the nuclear generating units pursuant to Nuclear Regulatory Commission requirements. inconsistencies with the industrial wastewater/NPDES permit. 71. FPL provided reasonable assurance that the proposed modification would comply with all applicable water use regulatory criteria. 72. However, ACI urges the Siting Board to deny the proposed modification because ACI believes it perpetuates a problem created by the CCS and fails to prevent the eventual contamination of the groundwater resources that ACI relies on for its agricultural and mining operations. ACI does not propose a approved. 73. ACI points out that the Conditions of Certification are Because the preponderance of the evidence demonstrates the FPL proposal would result in an improvement in groundwater conditions, the requested modification, itself, does not fail to comply with the Conditions of Certification.

24 74. Respondents are probably correct that, in this would result in an improvement over current groundwater conditions. However, it is appropriate to inform the Siting Board that the operation of the Turkey Point Power Plant, as authorized by the Siting Board under the Conditions of Certification, has caused harm to water resources because of the effects of the CCS, and the modification requested by FPL will not prevent further harm from occurring. RECOMMENDATION Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Siting Board enter a final order approving the modifications to the Turkey Point Conditions of Certification as proposed on December 23, 2014, with the addition of the following condition, which was stipulated by the parties: FPL shall monitor the proposed Floridan production wells (F-1, F-2, F-3, F-4 and F-5) on a quarterly basis for: water level or pressure; temperature; pH, Total Dissolved Solids; specific conductance; major anions/cations (including chlorides); NH3; total nitrogen; and total phosphorus. This monitoring data shall be made available to Miami-Dade County as well as FDEP and the SFWMD. On a semi-annual basis, Miami-Dade County may collect groundwater samples of the proposed Floridan production wells (F-1, F-2, F-3, F-4 and F-5) for constituents including 25 but not limited to 018/16 and Strontium (87Sr/86Sr). DONE AND ENTERED this 25th day of January, 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 25th day of January, 2016. COPIES FURNISHED: Sarah M. Doar, Esquire Department of Environmental Protection Office of General Counsel Mail Station 35 3900 Commonwealth Boulevard Tallahassee, Florida 32399 (eServed) Peter C. Cunningham, Esquire Gary V. Perko, Esquire Douglas S. Roberts, Esquire Jonathan Harrison Maurer, Esquire Hopping, Green and Sams, P.A. Post Office Box 6526 Tallahassee, Florida 32314 (eServed) 26 Peter Cocotos, Esquire Florida Power and Light Company 215 South Monroe Street, Suite 810 Tallahassee, Florida 32301 (eServed) Carlyn H. Kowalsky, Esquire South Florida Water Management District Mail Stop Code 1410 3301 Gun Club Road West Palm Beach, Florida 33406 (eServed) Andrew J. Baumann, Esquire Alfred J. Malefatto, Esquire Rachel B. Santana, Esquire Lewis, Longman and Walker, P.A. 515 North Flagler Drive, Suite 1500 West Palm Beach, Florida 33401 (eServed) Abbie Schwaderer Raurell, Esquire Miami-Dade County Attorney's Office 111 Northwest 1st Street, Suite 2810 Miami, Florida 33128 (eServed) Anthony Justin Pinzino, Esquire Florida Fish and Wildlife Conservation Commission Farris Bryant Building 620 South Meridian Street Tallahassee, Florida 32399-1600 (eServed) Adam Teitzman, Esquire Florida Public Service Commission 2450 Shumard Oak Boulevard Tallahassee, Florida 32399-0850 Samuel S. Goren, Esquire Goren, Cherof, Doody and Ezrol, P.A. 3099 East Commercial Boulevard, Suite 200 Fort Lauderdale, Florida 33308-4311 27 Kimberly Clark Menchion, Esquire Department of Transportation Mail Station 58 605 Suwannee Street Tallahassee, Florida 32399 (eServed) Deena Woodward Department of State Division of Historical Resources RA Gray Building, 4th Floor 500 South Bronough Street Tallahassee, Florida 32399 Edwin A. Steinmeyer, Esquire Steinmeyer Fiveash LLP 310 West College Avenue Tallahassee, Florida 32301 (eServed) Christina Arzillo Shideler, Esquire Department of Economic Opportunity MSC 110 107 East Madison Street Tallahassee, Florida 32399 (eServed) Lea Crandall, Agency Clerk Department of Environmental Protection Mail Station 35 3900 Commonwealth Boulevard Tallahassee, Florida 32399 (eServed) Jonathan P. Steverson, Secretary Department of Environmental Protection Mail Station 35 3900 Commonwealth Boulevard Tallahassee, Florida 32399 (eServed) Craig Varn, General Counsel Department of Environmental Protection Mail Station 35 3900 Commonwealth Boulevard Tallahassee, Florida 32399 (eServed) 28 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

)

(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 Company's Notice to the Board Regarding State Administrative Proceeding," were provided to the E-Filing system for service to those individuals on th e 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 26th day of January, 2016