Citizens of the State of Florida v. Julie Imanuel Brown, etc. , 269 So. 3d 498 ( 2019 )

Supreme Court of Florida
____________
No. SC18-213
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CITIZENS OF THE STATE OF FLORIDA,
Appellants,
vs.
JULIE IMANUEL BROWN, etc., et al.,
Appellees.
April 25, 2019
LABARGA, J.
On behalf of the Citizens of the State of Florida, the Office of Public
Counsel (OPC) appeals a decision of the Florida Public Service Commission (PSC)
allowing the Florida Power and Light Company (FPL) to recover certain
environmental compliance costs from ratepayers pursuant to section 366.8255,
Florida Statutes (2018). See In re Envtl. Cost Recovery Clause, Order No. PSC-
2018-0014-FOF-EI (Fla. Pub. Serv. Comm’n Jan. 5, 2018). We have jurisdiction.
See art. V, § 3(b)(2), Fla. Const. For the reasons explained herein, we affirm the
PSC’s decision.
BACKGROUND
FPL operates the Turkey Point Power Plant (Turkey Point), an 11,000-acre
facility located on the shores of Biscayne Bay and Card Sound, roughly twenty-
five miles south of Miami. Among the five power-generation units at Turkey Point
are two nuclear units, referred to as Unit 3 and Unit 4.
Adjacent to the west side of Turkey Point is the Cooling Canal System
(CCS), a 5,900-acre network of unlined canals which serves as the cooling system
for Units 3 and 4. Units 3 and 4 are cooled by taking water from the CCS into a
heat transfer infrastructure in the power plant. The heated water is then discharged
from the power plant into the CCS, where it circulates and cools as it returns to the
intake point. By the time the water again reaches the intake point around forty-
eight hours later, its temperature has reduced sufficiently to allow it to be useful for
cooling. The water is then pumped back out of the CCS into the heat exchange
infrastructure, and the cycle begins again. The CCS is a closed-loop system,
meaning it does not take in any water from surrounding surface waters, nor does it
discharge water into them. Because the CCS is unlined, however, its waters
percolate into and mix with the surrounding groundwater.
FPL constructed the CCS in 1971 pursuant to an agreement with the United
States Department of Justice. The canals were dug by dragline, and saline
groundwater was allowed to naturally fill them via seepage. At that time, the water
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in the CCS was the same salinity as the adjacent waters of Biscayne Bay. The
water in the CCS is recharged naturally by further groundwater inflows and by
rainwater, and water leaves the CCS through evaporation and seepage. From 1972
until 2013, no external water sources were used—such as pumping additional
water from Biscayne Bay—to augment the effect of annual precipitation and
groundwater inflow on the water level in the CCS. As a result, the salinity of the
water in the CCS has increased over time: in 2013, the average salinity of the water
in the CCS was 70 Practical Salinity Units (PSU), more than double the average
salinity of seawater.
The CCS sits atop the Biscayne Aquifer, which extends to the north and
west of the CCS. Although some layers of the Biscayne Aquifer contained saline
water as early as the 1940s, the shallower layers formed a “lens” of fresh water at
the top of the Aquifer. At the time the CCS was constructed, FPL understood the
salinity of the waters in the CCS would increase over time. Water of higher
salinity is denser than water of lower salinity and will tend to sink through lower-
salinity water if placed on top of it.
To prevent CCS water from migrating inland toward the Everglades and to
protect the freshwater lens in the top layers of the Biscayne Aquifer, FPL
constructed an eighteen-foot-deep interceptor ditch along the western edge of the
CCS. As its name suggests, the interceptor ditch’s purpose was to act as a physical
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barrier between the CCS and adjacent waters. Pursuant to a 1972 agreement with
the South Florida Water Management District (SFWMD), 1 FPL was required to
operate the interceptor ditch in such a way as to ensure that movement of saline
waters into adjacent groundwater did not exceed the amount which would occur
without the existence of the CCS.
The 1972 agreement also required FPL to monitor nearby groundwater for
any effects caused by the operation of the CCS. This agreement has been modified
several times through supplemental agreements between the SFWMD, or its
predecessors, and FPL. The Fourth Supplemental Agreement, which became
effective in 1983, reduced FPL’s monitoring requirements in light of FPL’s
satisfactory compliance with the provisions of earlier agreements and a perceived
reduced need for monitoring. Studies conducted over the years by researchers
working under contract with FPL identified increased salinity in some layers of the
Biscayne Aquifer, but ascribed these measurements to seasonal fluctuations in
salinity caused by a variety of natural processes, such as variable rainwater inputs
in wetter or drier years.
In 2008, FPL applied for regulatory permissions to begin a project, known as
the Uprate, to increase the generating capacity of Turkey Point. As part of the
1. At the time, the SFWMD was known as the Central and Southern Florida
Flood Control District.
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Uprate, and in light of the increased thermal load the Uprate would place on the
CCS, the Florida Department of Environmental Protection (DEP) issued new
Conditions of Certification for the uprated units. The Conditions of Certification
specifically noted that the Uprate could cause the temperature and salinity of the
CCS to increase, and imposed conditions to address these changes. Condition X
“sets forth the framework for new monitoring and, as may be needed, abatement or
mitigation measures” with regard to impacts of the CCS on nearby surface waters
and groundwater. Condition X also required FPL to enter into a Fifth
Supplemental Agreement with the SFWMD laying out the details of the new
monitoring arrangement.
In October 2009, FPL and the SFWMD entered into the Fifth Supplemental
Agreement which, together with the Conditions of Certification, created what is
known as the 2009 Monitoring Plan. 2 The agreement stated that the SFWMD had
evaluated “recent monitoring data” which indicated “the interceptor ditch may not
be effective in restricting the movement of saline water westward from the [CCS].”
It further noted that “a full delineation” of past, present, and future impacts of the
CCS on nearby groundwater was “a necessary first step in evaluating existing
conditions and, if necessary, identifying potential solutions to abate, mitigate, or
2. The parties also refer to the 2009 Monitoring Plan as the Turkey Point
Cooling Canal Monitoring Plan Project, or TPCCMP.
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remediate the movement of saline water and other water quality and ecological
impacts from the [CCS].” To accomplish this, the Fifth Supplemental Agreement
required FPL to implement the 2009 Monitoring Plan. It further provided that, if
the SFWMD determined the expanded monitoring required by the 2009
Monitoring Plan revealed a need for corrective action, FPL and the SFWMD
would consult with one another to identify and implement measures to mitigate,
abate, or remediate the impacts of the CCS.
FPL petitioned the PSC to allow recovery of the costs of implementing the
2009 Monitoring Plan pursuant to section 366.8255, Florida Statutes, and the PSC
approved recovery of those costs. See In re Envtl. Cost Recovery Clause, Order
No. PSC-09-0759-FOF-EI (Fla. Pub. Serv. Comm’n Nov. 18, 2009). In its order
approving recovery, the PSC approved a stipulation that “the water quality issues
the [2009 Monitoring Plan] is being undertaken to address relate to the operation
of the Turkey Point plant as a whole and not just the [Uprate].” Id. at 13 (emphasis
added).
Between 2009 and 2016, FPL provided updated testimony regarding the
status of the 2009 Monitoring Plan and FPL’s actions in response to consultations
with environmental regulators during that period arising out of data gathered
through the 2009 Monitoring Plan. Those data revealed that, over the decades of
the CCS’s operation, a hydraulic gradient had formed in which the hypersaline
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water of the CCS seeped into the lower-salinity waters of the Biscayne Aquifer
below, forming a plume of hypersaline water that is spreading through the Aquifer.
Once the water directly below the CCS was saturated to the depth of the less-
transmissive limestone layer which defines the lower boundary of the Biscayne
Aquifer, the hypersaline plume began to migrate westward through more laterally
transmissive layers. By 2014, monitoring data allowed regulators to conclude that
CCS waters had infiltrated into the Biscayne Aquifer as much as three miles west
of the CCS, and that the CCS was releasing, on average, 600,000 pounds of salt per
day into the Biscayne Aquifer.
On April 16, 2013, the SFWMD issued written notice to FPL that the
SFWMD had determined saline intrusions into the Biscayne Aquifer had exceeded
levels that would have been present in the absence of the CCS. Pursuant to the
Fifth Supplemental Agreement, the SFWMD directed FPL to begin consultations
to identify mitigation, abatement, or remediation measures. The Miami-Dade
County Department of Environmental Resources Management (DERM) issued a
Notice of Violation (NOV) to FPL on October 2, 2015, alleging the westward
migration of hypersaline water from the CCS violated Miami-Dade County Code
section 24-42(4). DEP issued an NOV of its own on April 25, 2016.
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Following issuance of the respective NOVs, FPL entered into a Consent
Agreement (CA) with DERM, and a Consent Order (CO) with DEP. 3 The CA
stated that “DERM maintains there is hypersaline water attributable to FPL’s
actions in the groundwaters outside the boundaries of the [CCS], which exceeds
County water standards and criteria.” The CA further states that FPL
“acknowledges” the presence of hypersaline water in those areas and “agrees to the
terms of [the CA] without admitting the allegations made by the . . . NOV.”
The CA requires FPL to “freshen” the CCS by pumping fresh water—
approximately fourteen million gallons per day—from the Upper Floridan Aquifer
into the CCS. It also requires FPL to construct a Recovery Well System (RWS) to
“intercept, capture, contain, and retract the hypersaline groundwater” to the
boundaries of the CCS. The RWS would accomplish this by pumping hypersaline
water out of the Biscayne Aquifer and injecting it into a naturally saline feature
known as the Boulder Zone Formation, located 3,200 feet beneath the ground
surface. FPL’s models predicted the RWS would cause the hypersaline plume to
stop expanding after three years of operation, would begin to retract it after five
3. The CA was later amended to include monitoring and remediation for
exceedances of permitted ammonia levels in Biscayne Bay. That amendment is
referred to as the CAA.
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years, and would achieve complete retraction of the plume into the boundaries of
the CCS after ten years.
The CO contains similar provisions, requiring FPL to maintain the salinity
of the CCS at or below 34 PSU, to halt the intrusion of hypersaline CCS water into
nearby groundwater, and to mitigate the impact of the hypersaline plume. The CO
independently requires FPL to operate the RWS and requires the extent of the
hypersaline plume to be established by Continuous Surface Electromagnetic
Mapping.
In 2016, FPL petitioned the PSC for recovery of actual and estimated
environmental compliance costs, including those associated with the CO and CA.
At that time, the PSC deferred consideration of those costs until its 2017
Environmental Cost Recovery docket. In re Envtl. Cost Recovery Clause, Order
No. PSC-16-0535-FOF-EI, at 12 (Fla. Pub. Serv. Comm’n Nov. 22, 2016). The
PSC held hearings in its 2017 Environmental Cost Recovery docket on October
25-27, 2017. During those hearings and in its briefing before the PSC, FPL argued
the PSC had, in its 2009 order, approved the 2009 Monitoring Plan itself for cost
recovery pursuant to section 366.8255, and that FPL had presented evidence at that
time “that the project may need to progress from monitoring to implementation of
taking required corrective actions, if warranted by the results of the monitoring.”
FPL contended the costs of the CO and CA were reasonable and prudent
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environmental compliance costs incurred through the implementation of
agreements with environmental regulators, and therefore should be recoverable
through the section 366.8255 mechanism. In all, FPL estimated it would spend
$176 million in environmental compliance costs “to fulfill its obligations under the
[CA] and [CO]” by 2027.
OPC, the Southern Alliance for Clean Energy, and the Florida Industrial
Power Users Group opposed FPL’s petition. OPC emphasized that the costs FPL
sought to recover were incurred as “the direct result of FPL’s repeated decades-
long failures to prudently manage its nuclear facility’s cooling canal water.” OPC
contended that to regard the costs at issue in this case as outgrowths of the 2009
Monitoring Plan mischaracterized those costs, given that the costs are an order of
magnitude greater than the costs of the 2009 Monitoring Plan. OPC further argued
that the section 366.8255 mechanism allows “timely recovery of costs imposed by
prospective regulations to prevent harm,” but does not allow recovery of costs of
efforts to remediate past environmental harm. OPC contended that, because of the
“clearly preventive orientation” of section 366.8255, the costs of complying with
the CO and CA do not qualify for recovery because the harm in question has
already occurred.
The PSC approved FPL’s recovery of $132,577,031 as costs of compliance
with the CO and CA pursuant to section 366.8255. In re Envtl. Cost Recovery
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Clause, Order No. PSC-2018-0014-FOF-EI, at 5, 22-23. The PSC rejected OPC’s
argument that remediation costs were per se ineligible for recovery under section
366.8255, and held FPL could recover its costs of complying with the CO and CA
through the section 366.8255 mechanism. Id. at 8.
The PSC also found “[t]he costs FPL is requesting to recover are the result
of the anticipated evolution of the original [2009 Monitoring Plan].” Id. at 18.
The PSC noted its 2009 order approving the 2009 Monitoring Plan had specifically
acknowledged the potential for mitigation costs to arise out of the expanded
monitoring, and that the 2009 order had stated the 2009 Monitoring Plan had been
undertaken to address water quality issues linked to the operation of Turkey Point
generally, beyond just those connected with the Uprate. Id. at 17. Therefore, the
PSC found, the 2009 Monitoring Plan “is inclusive of the plant as a whole.” Id. at
18. The PSC reasoned that “an increase in costs itself is not a change in scope of a
project,” and referenced testimony presented by FPL that environmental
compliance programs routinely evolve from monitoring to mitigation and
remediation. Id. at 17-18.
OPC appealed, arguing that section 366.8255, Florida Statutes, limits cost
recovery to costs incurred in preventing future environmental harm. OPC further
contends the PSC erred when it concluded the costs of implementing the CO and
CA were anticipated evolutions of the 2009 Monitoring Plan.
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ANALYSIS
Protecting the Environment
Section 366.8255, Florida Statutes, also known as the Environmental Cost
Recovery Clause or ECRC, allows a public utility to petition the PSC for recovery
of “prudently incurred environmental compliance costs . . . through an
environmental compliance cost-recovery factor that is separate and apart from the
utility’s base rates.” § 366.8255(2), Fla. Stat. (2018). “Environmental compliance
costs” are defined as “all costs or expenses incurred by an electric utility in
complying with environmental laws or regulations.” Id. § 366.8255(1)(d).
“Environmental laws or regulations” are, in turn, defined as “all federal, state, or
local statutes, administrative regulations, orders, ordinances, resolutions, or other
requirements that apply to electric utilities and are designed to protect the
environment.” Id. § 366.8255(1)(c).
OPC contends the phrase “protect the environment” limits recovery of costs
under section 366.8255 to costs incurred in preventing future environmental harm,
because the word “protect” is inherently forward-looking and any measure which
mitigates, remediates, or otherwise cleans up existing harm does not “protect the
environment.” Therefore, OPC argues, the PSC erred in approving recovery of the
costs of compliance with the CO and CA because those costs have been and will be
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incurred in the course of redressing past environmental harm, not preventing future
environmental harm.
This issue presents a question of statutory interpretation by an administrative
agency, which we review de novo. Art. V, § 21, Fla. Const. “[W]hen the language
of the statute is clear and unambiguous and conveys a clear and definite meaning,
there is no occasion for resorting to the rules of statutory interpretation and
construction; the statute must be given its plain and obvious meaning.” Holly v.
Auld, 450 So. 2d 217, 219 (Fla. 1984) (quoting A.R. Douglass, Inc. v. McRainey,
137 So. 157, 159 (Fla. 1931)).
The phrase “protect the environment” has a clear and definite meaning.
Standing alone, the word “protect” means to safeguard a thing or shield it from
injury. See, e.g., Merriam-Webster’s Collegiate Dictionary 999 (11th ed. 2003).
Any prospective element of this definition is a function of cause and effect: a
protective measure cannot turn back time and prevent a harm which has already
occurred. When the thing to be protected is the environment, however, the
relationship between prospective and retrospective measures is more complex.
Unlike types of harm which, by their nature, occur as discrete incidents,
environmental harm can take the form of ongoing damage caused by a continuous
presence of pollutants in a resource or ecosystem. See, e.g., Fla. Dep’t of Envtl.
Protection v. Fleet Credit Corp., 691 So. 2d 512, 513-14 (Fla. 4th DCA 1997)
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(explaining the “continuing injury to groundwater caused by the current seepage of
hazardous substances disposed and discharged on commercial property in the
1980s” and noting that “it is the ongoing contamination, not the initial disposal of
wastes, that constitutes a continuing, but abatable, nuisance”). In such a situation,
the remediation of past harm through abatement of the pollution-causing source
and cleanup of contaminated resources or ecosystems is an essential part of
shielding as-yet uncontaminated ecosystems, or portions thereof, from harm.
Perhaps unlike some other kinds of protective measures, actions prudently needed
to “protect the environment” can primarily remedy existing conditions caused by
past actions, provided the harm in question continues to adversely impact the
environment. This would be especially true where continuing environmental
damage is expected to spread and increase if remedial action is not taken.
The present case illustrates this principle. Hypersaline waters have migrated
into the Biscayne Aquifer, and the hypersaline plume from the CCS is causing the
interface between fresh and saline water in the Biscayne Aquifer to migrate farther
west. The waters of the Biscayne Aquifer are an important natural resource, and
the intrusion of saline waters into the Biscayne Aquifer impairs the reasonable and
beneficial use of the waters in the Biscayne Aquifer. If the existing hypersaline
plume were removed by the RWS but the water in the CCS were not freshened,
hypersaline water would continue to infiltrate into the Biscayne Aquifer and the
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existing harm would continue to expand. If the water in the CCS were freshened
but the RWS were not operated, the hypersaline plume would remain in the
Biscayne Aquifer and the existing harm would both continue into the future and
expand in the future by diffusing farther into the Biscayne Aquifer. By removing
the existing hypersaline plume and freshening the CCS, FPL is both remedying the
existing harm and preventing future harm. Because of the nature of the
environmental harm at issue in this case, prevention and remediation are
inextricably intertwined. Safeguarding the Biscayne Aquifer from future saline
intrusion requires the cleanup of existing saline intrusion, and that action protects
the environment from future harm. 4
We therefore reject OPC’s reading of section 366.8255(1)(c) and affirm the
decision of the PSC with respect to this issue.
Evolution of 2009 Monitoring Plan
OPC further argues the PSC erred when it determined the costs of the CO
and CA were “the result of the anticipated evolution of the original [2009
Monitoring Plan],” and are therefore within the scope of the 2009 Monitoring Plan,
for which the PSC had previously approved recovery. In re Envtl. Cost Recovery
4. Our decision today does not address situations in which the
environmental harm is completely contained and the remediation for which the
utility seeks cost recovery would not be preventing additional future harm. That
question is not presented in this case, and we render no opinion as to that issue.
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Clause, Order No. PSC-2018-0014-FOF-EI, at 17-18. The PSC explained its
decision by noting that its 2009 order approving recovery of the costs incurred in
implementation of the 2009 Monitoring Plan “specifically included discussion of
the potential for mitigation costs.” Id. at 17. The PSC further noted its 2009 order
had determined that the 2009 Monitoring Plan was concerned with monitoring the
environmental impacts of the operation of Turkey Point as a whole and was not
limited to monitoring the impacts of the Uprate. Id. at 17-18. The PSC also
referred to testimony by FPL witness Michael Sole that “environmental
compliance programs evolve based upon information that determines the next
appropriate action.” Id. at 18. Based upon the record before it in this docket, and
upon the language of its 2009 order, the PSC concluded the costs at issue in this
case “shall be considered part of the existing [2009 Monitoring Plan].” Id.
The PSC’s determination that the costs at issue in this case are an anticipated
evolution of the 2009 Monitoring Plan is a finding of fact, which this court will not
disturb if it is supported by competent, substantial evidence in the record. Sierra
Club v. Brown, 243 So. 3d 903, 907-08 (Fla. 2018).
We conclude there is competent, substantial evidence in the record to
support the PSC’s conclusion. The Conditions of Certification for the Uprate and
the Fifth Supplemental Agreement with the SFWMD both characterize the 2009
Monitoring Plan as an investigative first step to determine the environmental
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impacts of the Uprate specifically and also FPL’s operation of Turkey Point more
generally. Moreover, by requiring FPL to consult with the SFWMD regarding
mitigation, abatement, and remediation measures if the data indicated the need for
such measures, the Fifth Supplemental Agreement—out of which the 2009
Monitoring Plan arose—contemplated the possibility that the 2009 Monitoring
Plan could evolve to include active environmental protection measures.
As the record reflects, this is precisely what occurred: the monitoring data
led environmental regulators to conclude the CCS was causing violations of
applicable groundwater quality standards, and those conclusions resulted in the CO
and CA. This evolution from monitoring to remediation is reflected in the regular
updates FPL provided to the PSC between 2009 and 2015 regarding the
expectations of the 2009 Monitoring Plan, the initial corrective actions FPL took,
and finally the requirements of the CO and CA themselves. We therefore conclude
the PSC’s finding on this issue is supported by competent, substantial evidence in
the record and affirm the PSC’s decision with respect to this issue.
CONCLUSION
Based on the foregoing, we hereby affirm the decision of the Florida Public
Service Commission.
It is so ordered.
CANADY, C.J., and POLSTON, LAWSON, LAGOA, LUCK, and MUÑIZ, JJ.,
concur.
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NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND,
IF FILED, DETERMINED.
An Appeal from the Florida Public Service Commission
J.R. Kelly, Public Counsel, Stephanie A. Morse, Associate Public Counsel, and
Charles J. Rehwinkel, Deputy Public Counsel, Office of Public Counsel, The
Florida Legislature, Tallahassee, Florida,
for Appellant
Keith C. Hetrick, General Counsel, Samantha M. Cibula, Attorney Supervisor, and
Rosanne Gervasi, Senior Attorney, Florida Public Service Commission,
Tallahassee, Florida,
for Appellee Florida Public Service Commission
Stuart H. Singer and Pascual A. Oliu of Boies Schiller Flexner LLP, Fort
Lauderdale, Florida; and John T. Butler, Assistant General Counsel – Regulatory,
and María José Moncada, Senior Attorney, Florida Power & Light Company, Juno
Beach, Florida,
for Appellee Florida Power & Light Company
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