DEP09-0222 STATE OF FLORIDA DEPARTMENT OF ENVIRONMENTAL PROTECTION PALM BEACH COUNTY ENVIRONMENTAL COALITION, PETER TSOLKAS, and ALEXANDRIA LARSON, Petitioners, vs. OGC CASE NO. 08-2445 : DOAH CASE NO. 08-6427 FLORIDA POWER & LIGHT COMPANY and DEPARTMENT OF ENVIRONMENTAL PROTECTION, Respondents. FINAL, ORDER - On January 27, 2009, an Administrative Law Judge (“ALU”) of the Division of Administrative Hearings (DOAM’) issued an Order Closing File relinquishing jurisdiction over the above captioned matter to the Department of Environmental Protection (‘DEP” or “Department). See Exhibit A. The Order Closing File indicates that the ALJ entered an Order of Dismissal on January 13, 2009, granting a Motion to Dismiss, and gave the Petitioners until January 23, 2009, to-file an amended petition. See Exhibit B. The Orders indicate that copies were sent to the Petitioners, Alexandria Larson, Peter Tsolkas and Palm Beach County Environmental Coalition; and to counsel for the Co- Filed May 19, 2009 1:41 PM Division of Administrative Hearings. Respondents Florida Power and Light Company (“FPL”) and DEP. The parties did not file any Exceptions to the Order Closing File. This matter is now before the Secretary for final agency action. BACKGROUND On September 22, 2008, the Department proposed to approve a minor modification to an existing Underground Injection Control (“UIC”) permit issued to Respondent FPL in File No. UIC-247895-009-UC. The proposed minor modification authorizes FPL to add reclaimed water to the injection stream of the UIC well system at its West County Energy Center (“WCEC’) in Palm Beach County, The Petitioners challenged the proposed minor modification and the Department referred the amended petition to DOAH to conduct an evidentiary hearing. FPL filed a Motion to Dismiss on January 9, 2009, and the Petitioner Larson filed a response in opposition to the motion. No response was filed by the other Petitioners. The ALJ entered an Order of Dismissal on January 13, 2009. See Exhibit B. The Order of Dismissal stated that the basis for the Motion to Dismiss was that a previous administrative proceeding involving the same permit found that these Petitioners do not have standing. See Palm Beach Envtl. Coalition, et al. v. Florida Power and Light Co., ’ DOAH Case Nos. 07-5047; 07-5062, and 07-5063 (DOAH Mar. 3, 2008), adopted in DEP Final Order (April 17, 2008). The Order of Dismissal further stated that the ALJ in the previous cases determined that Petitioners lacked standing, but proceeded to make findings of fact and conclusions of law because the evidentiary hearing had already been conducted. Thus the Order of Dismissal found that the proposed modification did not raise a new factual issue that was not previously determined. The Order of Dismissal gave the Petitioners until January 23, 2009, to file another amended petition “which contains allegations of standing that differ from the allegations of standing previously found to be insufficient in DOAH Case Nos, 07-5047, 07-5062, and 07-5063, and which alleges disputed facts that were not litigated and could not have been litigated in the earlier cases.” See Exhibit B. The Petitioners did not file another amended petition and on January 27, 2009, the ALJ entered an Order Closing File. See Exhibit A. . CONCLUSION The case law of Florida holds that‘parties to formal administrative proceedings must alert reviewing agencies to any perceived defects in DOAH hearing procedures or in the findings of ALJs by filing exceptions to DOAH recommended orders. See Couch v. Commission on Ethics, 617 So.2d 1119, 1124 (Fla. 5th DCA 1993); Florida Dept. of Corrections v. Bradley, 510 So.2d 1122, 1124 (Fla. 1st DCA 1987). Having filed no exceptions to certain findings of fact the party “has thereby expressed its agreement with,-or at least waived any objection to, those findings of fact.” Environmental Coalition of Florida, Inc. v. Broward County, 586 So.2d 1212, 1213 (Fla. 1 DCA 1991). The ALJ’s Order Closing File found that the Petitioners did not amend their petition. The ALJs Order of Dismissal found that the proposed modification did not raise a new factual issue that was not previously determined. The Petitioners did not file any Exceptions to the ALJs findings." Having considered the applicable law and standards of review in light of the findings and conclusions set forth in the ALJ's Orders, and being otherwise duly advised, itis ORDERED that: A. The ALJ's Orders (Exhibits A and B) are adopted in their entirety and incorporated herein by reference. B. Petitioners amended petition is dismissed with prejudice. C. The Departments previously proposed minor modification in File No. UIC- 247895-009-UC issued to FPL on September 22, 2008, is now final and effective. Any party to this proceeding has the right to seek judicial review. of the Final Order pursuant to Section 120.68, Florida Statutes, by the filing of a Notice of Appeal pursuant to Rules 9.110 and 9.190, Florida Rules of Appellate Procedure, with the clerk of the Department in the Office of General Counsel, 3900 Commonwealth Boulevard, M.S. 35, Tallahassee, Florida 32399-3000; and by filing a copy. of the-Notice of Appeal accompanied by the applicable filing fees with the appropriate District Court of Appeal. ' The Petitioners were informed of their ability to file exceptions with the Department and the relevant time period. 4 The Notice of Appeal must be filed within 30 days from the date this Final Order is filed with the clerk of the Department. f- DONE AND ORDERED this Be day of March, 2009, in Tallahassee, Florida. STATE OF FLORIDA DEPARTMENT OF ENVIRONMENTAL PROTECTION MICHAEL W. SOLE Secretary Marjory Stoneman Douglas Building 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000 FILED ON THIS DATE PURSUANT TO § 120.52, FLORIDA STATUTES, WITH THE DESIGNATED DEPARTMENT CLERK, RECEIPT OF WHICH 1S HEREBY ACKNOWLEDGED. Hislian 3/13/09 ~ CLERK DATE CERTIFICATE OF SERVICE {| HEREBY CERTIFY that a copy of the foregoing Final Order has been sent by United States Postal Service to: Peter Cocotos, Esquire Florida Power & Light Company 700 Universe Boulevard West Palm Beach, FL 33408 Peter “Panagioti” Tsolkas 822 North C Street Lake Worth, Florida 33468 Alexandria Larson 16933 West Harlena Drive Loxahatchee, FL 33470 Claudia Llado, Clerk and Bram D. E. Canter, Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway. Tallahassee, FL. 32399-1550 and by hand delivery to: Ronald Woodrow Hoenstine, Ill, Esquire Department of Environmental Protection 3900 Commonwealth Blvd., M.S. 35 Tallahassee, FL 32399-3000 this (Bday of March, 2009. STATE OF FLORIDA DEPARTMENT OF ENVIRONMENTAL PROTECTION ALY Le FRANCINE M. FFOLKES Administrative Law Counsel 3900 Commonwealth Blvd., M.S. 35 Tallahassee, FL 32399-3000 Telephone 850/245-2242 STATE OF FLORIDA DIVISION OF ADMINISTRATIVE HEARINGS PALM BEACH ENVIRONMENTAL COALITION, PETER TSOLKAS, and ALEXANDRIA LARSON, ) Petitioners, vs. ) Case No. 08-6427 FLORIDA POWER AND LIGHT CORPORATION and DEPARTMENT OF ) ENVIRONMENTAL PROTECTION, -) Respondents. ) ORDER CLOSING FILE This cause came before the Administrative Law Judge on the Motion to Dismiss filed by Florida Power & Light Company. A response in opposition to the motion was filed by Alexandria Larson. No response was filed by the other. Petitioners. By Order dated January 13, 2009, the Motion to Dismiss was granted, with leave granted to Petitioners to file an amended petition no ‘later than January 23, 2009. No filing was made by Petitioners. Therefore, it is ORDERED that: 1. The file of the Division of Administrative Hearings in this case is CLOSED and jurisdiction is relinquished to the Department of Environmental Protection for final action. 2. The final hearing in this cause scheduled for February 24: through 26, 2009, is hereby canceled. EXHIBIT A DONE AND ORDERED this 27th day of January, 2009, in Tallahassee, Leon County, Florida. BRAM D. E. CANTER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 ; Pax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 27th day of January, 2009. COPIES FURNISHED: Ronald Woodrow. Hoenstine, FEII, Esquire Department of Environmental Protection 3900 Commonwealth Boulevard, Mail Station 35 Tallahassee, Florida 32399-3000 ‘Alexandria Larson 16933 West Harlena Drive Loxahatchee, Florida 33470 Peter "Panagioti" Tsolkas 822 North C Street Lake Worth, Florida 33468 Peter Cocotos, Esquire SCANNED Florida Power & Light Company Mae (2409 700 Universe Boulevard West Palm Beach, Florida 33408 ee EPTOPENVIRONMENTAL PROTECTION “DEPT OF ENVIRONMENTAL PROTECTION ‘e538 2009 JAN 28 2009 QEFICE OF 5 GENERAL COUNSEL OFFICE OF GENERAL COUNSEL STATE OF FLORIDA DIVISION OF ADMINISTRATIVE HEARINGS PALM BEACH ENVIRONMENTAL ) COALITION, PETER TSOLKAS, and } ALEXANDRIA LARSON, ~ Petitioners, vs. ) Case No. 08-6427 FLORIDA POWER AND LIGHT } CORPORATION and DEPARTMENT OF } ENVIRONMENTAL PROTECTION, Respondents. ORDER OF DISMISSAL This cause came before the Administrative Law Judge on the Motion to Dismiss filed by Florida Power & Light Company (FPL). A response in opposition to the motion was filed by Petitioner Alexandria Larson. No response was filed by Petitioners Palm Beach County Environmental Coalition or Peter Tsolkas. The basis for the motion to.dismiss is that it was previously determined in DOAH Case Nos. 07-5047, 07-5062, and 07-5063, involving the same permit for two injection wells associated with the West County Energy Center, that these Petitioners do not have standing. The current proposed agency action would add reclaimed water to the injection stream, a minor modification of the original permit. FPL asserts that the doctrine of collateral estoppel prevents the current claims brought by Petitioners. In her response to the motion, Petitioner Larson states that (1) the Administrative Law Judge stated in his Recommended Order in the earlier cases that “subsequent review may determine that one or more petitioners have standing”; (2) the earlier cases are on appeal; and (3) the proposed modification: raises a new factual dispute that was not previously determined. EXHIBIT B oe The ALJ in the previous cases determined that Petitioners lacked standing, but proceeded to make findings of fact and conclusions of law because the evidentiary hearing had already been conducted. It makes no sense to allow this case to go forward based on the premise that the appellate court might reverse the determination that Petitioners do not have standing. It also appears that the alleged factual issue of whether fresh water has “differing migration qualities” is not a new issue. Therefore, it is : ORDERED that the amended petition is DISMISSED. Petitioners are granted leave to file an amended petition no later than January 23, 2009, which contains allegations of standing that differ from the allegations of standing previously found to be insufficient in DOAH Case Nos. 07~5047, 07-5062, and 07-5063, and which alleges disputed facts that were not litigated and could not have been litigated in the earlier cases. DONE AND ORDERED this 13th day of January, 2009, in Tallahassee, Leon County, Florida. 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 13th day of January, 2009. COPIES FURNISHED: Peter Cocotos, Esquire Florida Power & Light Company 700 Universe Boulevard West Palm Beach, Florida 33408 Ronald Woodrow Hoenstine, III, Esquire Department of Environmental Protection 3900 Commonwealth Boulevard, Mail Station 35 Tallahassee, Florida 32399-3000 Peter “Panagioti” Tsolkas 822 North C Street Lake Worth, Florida 33468 Alexandria Larson 16933 West Harlena Drive Loxahatchee, Florida 33470

Docket for Case No: 08-006427

Orders for Case No: 08-006427