August 10, 1999

The Board of County Commissioners of Brevard County, Florida, met in special session on August 10, 1999, at 10:06 a.m. in the Government Center Commission Room, Building C, 2725 Judge Fran Jamieson Way, Viera, Florida. Present were: Chairman Truman Scarborough, Commissioners Randy O'Brien, Nancy Higgs, Sue Carlson, and Helen Voltz, County Manager Tom Jenkins, and County Attorney Scott Knox.

DISCUSSION, RE: STIPULATED SETTLEMENT AGREEMENT WITH OLEANDER POWER
PROJECT, L.P. AND CONSTELLATION POWER DEVELOPMENT

Chairman Scarborough stated the Board will specifically discuss the Oleander issue; and at 1:00 p.m., it will discuss performance zoning. He advised of misinformation from the Titusville Chamber of Commerce concerning the schedule; and stated both issues can also be brought up on May 6, 1999.

Commissioner Higgs advised if the Board takes action today on the Stipulated Settlement Agreement, it would finalize it.

Chairman Scarborough stated the Board does not want scheduling to get in the way of common sense; it wants to go to the issues, listen to concerns, and take its time; and with the Stipulated Settlement Agreement is an extraction of many of the things dealing with performance zoning, so there is some overlap. He stated this morning the discussion will be site specific on the Oleander issue. He stated he received a large number of cards from individuals who do not wish to speak, but want to give their time to Mr. Harris; and this is not typical; but it may be advantageous to have a discussion with one individual rather than multiple people. He stated there have been additional changes Mr. Spielvogel is proposing.

Attorney Leonard Spielvogel, representing Oleander Power Project, stated copies of the Stipulated Settlement Agreement have been distributed to the Board and to the public; and as a result of additional conversation and meetings with staff, there have been a few changes made. He stated page 3, paragraph 3 has been revised to read as follow: “that the owner shall burn natural gas as its preferred fuel and shall limit its use of .05% sulfur by weight, No. 2 distillate oil, to a maximum of 1,000 hours of operation of the facility per year operating a full load.”

Chairman Scarborough inquired if that means the facility will not burn any fuel that has a higher sulfur content than that; with Mr. Spielvogel responding that is correct. Mr. Spielvogel stated they have more clearly defined the type of fuel that would be burned as a backup fuel only. Chairman Scarborough recommended also saying that the “sulfur content will never exceed”; with Mr. Spielvogel responding it says, “limit its use.” Chairman Scarborough stated the question is if it is limiting that particular fuel, could a dirtier one be burned for 10,000 hours, as it could be read a different way; and suggested language “in no event shall the sulfur content exceed .05 % No. 2 distillate oil at any time.” Commissioner Voltz inquired if the language “and shall limit its fuel use to .05% No. 2 distillate oil at any time to a maximum of 1,000 hours” would prevent them from using any other kind of oil at any time. Mr. Spielvogel stated Commissioner Voltz left out some language.

Chairman Scarborough stated he would like to put the 1,000 hours in another sentence so there are two separate constraints, one hourly, and the other sulfur limitation. Mr. Spielvogel suggested adding a sentence, “In no event shall the sulfur content exceed .05 sulfur by weight.” Mr. Knox suggested adding “in no event shall the sulfur content of any fuel oil burned exceed .05 by weight.” Commissioner Voltz stated it is any fuel oil burned, which would prohibit them from anything but .05 No. 2 distillate. Mr. Spielvogel suggested, “That the owner shall burn natural gas as its preferred fuel and shall limit its use of .05% sulfur by weight . . .” Chairman Scarborough stated weight does not have to be included there. Commissioner Higgs stated it does not hurt to put it there. Chairman Scarborough stated if it is put there, the question is whether you can burn a lighter weight, and it is best to have the two defined separately.

Discussion ensued on separating hours from type of fuel, revised language, reference to cleaner fuels, preferred fuel, and backup fuel.

Mr. Spielvogel stated if there is agreement that the intent is to not exceed that sulfur content and the hours, he and the County Attorney can develop language that clearly says that. Chairman Scarborough indicated that is acceptable. Commissioner Higgs commented on the upper limits and allowing for technological advances.

Mr. Spielvogel stated on page 5, item G deals with truck shipments; read aloud, “Commercial truck deliveries will comply with the Florida Department of Transportation weight and dimension limitations, and deliveries will be limited to not more than 40 trucks between 9:00 p.m. and 6:00 a.m. and 96 trucks between 6:00 a.m. and 9:00 p.m.”; and advised that is a change from the previous language. He stated previously language was taken from the proposed performance standards which limited truck delivery to so many per acre per hour, which would have generated more trucks; and they have brought in language on how few trucks can be unloaded within a certain period of time and also allow for other deliveries such as Federal Express.

Chairman Scarborough stated the language the Board has before it would have 74 trucks in the evening hours and no restriction in daylight hours; and what is proposed is less stringent than the performance standards proposal.

Commissioner Higgs requested clarification of the hours; with Mr. Spielvogel advising 40 trucks between 9:00 p.m. and 6:00 a.m. and 96 between 6:00 a.m. and 9:00 p.m.

Commissioner O'Brien advised with that number of trucks, it will be necessary to four lane SR 524. Mr. Spielvogel advised of the preferred route from the Port, and of the advantages. Commissioner Carlson stated the initial load on the road is going to take place at one time; and inquired if there is an estimate of the time to put oil into the tanks onsite; with Mr. Spielvogel responding they anticipate they can unload five fuel trucks per hour. Commissioner Carlson inquired how many hours to fill the tank; with Mr. Spielvogel responding he does not have that answer. Commissioner Carlson inquired about numbers for a backup situation; with Mr. Spielvogel indicating he will get the information. Mr. Spielvogel advised fuel is a backup; it is cheaper and better for the machinery to burn natural gas; and that is the preferred fuel. Commissioner Voltz inquired how many days out of the year will this be happening. Mr. Spielvogel stated they are permitted for a certain number of hours; that is the worst case scenario; and advised of the history of other peaking plants. He advised Mr. Wolfinger will address the specific questions.

Mr. Spielvogel advised of inclusion of reference to I-95 on page 8, paragraph 7(h) to address concerns about screening the facility from public view. He stated on page 9, paragraph 13, language suggested is, “the site plan shall be reviewed by the County in accordance with the procedures, rules and regulations in effect on December 11, 1998.” He noted December 11, 1998 is the date the application was filed.

Commissioner Voltz stated other things that are being included today may not have been in place in December, 1998. Mr. Spielvogel requested a chance for he and Mr. Knox to incorporate what they have agreed to in addition to the rules that were in place on December 11, 1998. He stated it is a contract between his client and the County; and regardless of what happens to the performance standards, they will be bound by the conditions. Commissioner Higgs inquired if there is a change that will incorporate that concept in 14; with Mr. Spielvogel responding they will look to Mr. Knox for language that will better reflect that understanding. Commissioner Higgs stated she does not want there to be a misunderstanding; and if the Board agrees to the Stipulated Agreement, the Oleander Power Plant will go forward under that Agreement, with the site plan standards as of December 11, 1998, as well as the Building Code, and Laws and Ordinances of the County as of that date. Mr. Spielvogel advised of clarifications in the legal description.

Commissioner Higgs inquired about a percentage of reclaimed water on page 7. Mr. Spielvogel stated they are in the process of negotiating with the City of Cocoa; and advised of his client’s desire to buy all the reclaimed water the City can make available. He advised they are assisting the City in developing stormwater facilities and using that as reclaimed water. Commissioner Higgs requested the percentage be quantified. She stated on page 6, there is discussion about improvement of the pavement on Townsend Road; it says there will be monitoring every two years for a four-year period; but beyond that period there is no responsibility by the owner for any improvements. Mr. Spielvogel stated that is correct; noted Oleander is not the only property located on Townsend Road; and commented on the difficulty of monitoring as development takes place. Commissioner Higgs stated she is not asking Oleander to be responsible for damage done by others; but a large number of heavy vehicles will be using the road; and there may be some need to consider,. beyond the four years, some way to define the percentage of impact.

Commissioner Carlson stated the County does not secure transportation impact fees on commercial and industrial properties; and inquired if there is a possibility to do that. Commissioner Higgs stated transportation impact fees would not work because they are applied only to capacity issues, not maintenance issues. Chairman Scarborough stated in District 1, bonds have been required.

Chairman Scarborough suggested things that are specifically alleged in the Oleander fact book such as no emissions or odor be included. Commissioner Carlson advised of materials she provided for the Commissioners.

John Harris stated there are two problems with the Board proceeding on the item; it is a request to approve a binding development plan; and the Board cannot consider the binding development plan agreement without violating the provisions of Chapter 163. He outlined the requirements of Chapter 163; and stated notice of the meeting has never been advertised, the written notice was not mailed to the affected property owners, and the issue has never been submitted to the LPA. He stated failure in any one of the steps precludes consideration by the Board; when this was pointed out to the County Attorney last week, they were suddenly faced with a revised document, the stipulated settlement agreement; but it is identical to what was called a binding development plan a few days before. He stated neither the Florida Statute nor the County’s Ordinance provides an exception for considering the agreements when there is pending litigation. He stated if that was the case, any developer who wanted to avoid the steps of the LPA and the advertising requirements would only have to file a lawsuit against the County, and then would be allowed to bring it before the Board as a settlement agreement; and that is not the intent of the Legislative Development Act. He reiterated the requirements; and stated it is not proper for the Board to consider the development agreement at this time. He stated the Board’s moratorium is duly enacted legislation, and is binding upon the Board; the original Moratorium Ordinance provides that even considering site plan applications is not in the best interest of the health, safety and welfare of the public until a substantial Code revision can be adopted; and that obviously has not yet occurred. He stated the moratorium was extended through Thursday, August 12, 1999; and until it expires the Board is prohibited from considering, approving, denying, or taking any action that would affect the Oleander site plan. He stated one of the provisions of the binding development agreement that Mr. Spielvogel went over is that the County would agree to terminate the moratorium, but that cannot be done because it must be terminated by adopted ordinance, which would require advertisement and hearings. He stated proceeding in any capacity to consider Oleander’s development plans will be a clear and direct violation of the moratorium. He requested the Board terminate the meeting and take no action on the settlement agreement.

Chairman Scarborough inquired if he should terminate the meeting; with County Attorney Scott Knox responding no. Mr. Knox stated the moratorium expires in two days; and if the Board wants to consider a stipulation which requires staff to look at the site plan in conjunction with the normal review process, there is nothing to stop it from doing that because all it would be approving today would be the stipulations. He stated he does not agree that the stipulated settlement agreement constitutes a development agreement; it is not incorporated in any rules or regulations the County has now; it is something to settle a lawsuit, based on something the Board may or may not adopt in the future; and the Board can hold two public hearings if it desires, but he does not believe it is necessary.

Commissioner O'Brien stated Mr. Harris advised it would require two public hearings and notification to end the moratorium. Mr. Knox advised the moratorium ends on August 12, 1999 at midnight. Commissioner O'Brien inquired why; with Mr. Knox responding it expires on that date by its own terms. Mr. Harris stated the Board cannot terminate the moratorium through the settlement agreement.

Chairman Scarborough stated he will entertain a motion to terminate the meeting; and no response was heard.

Commissioner Higgs advised page 3 references the parties amicably resolving the appeal; and stated that language may not be appropriate. She stated the Board is approving conditions, but not a site plan; and it is not terminating the moratorium or permitting construction.

Dorothy Amstadt, Mary Tees, Helen Steinberg, Martha Franco, and Maureen Rupe, expressed opposition to the settlement agreement with Oleander Power Project L.P. based on environmental issues, harmful pollutants and emissions, FP&L’s plans to bring its plant into compliance, opening the County to profiteering, donation to City of Cocoa being bribery, and additional peaking plants coming to the County.

Frank Pawela representing Ironworkers Local 808, Butch Cox representing IBEW Local 606, Steve Williams representing Building and Construction Trades Council, and Sandy Pfrimmer representing Melbourne-Palm Bay Chamber of Commerce, expressed support for the settlement agreement with Oleander Power Project, L.P. based on full-benefit job opportunities, proposed plant being cleaner than current plants, and proposed plant meeting or exceeding all State standards.

The meeting recessed at 11:16 a.m. and reconvened at 11:30 a.m.

Chairman Scarborough stated there is nothing in place now, and if something does not happen by midnight on August 12, 1999, there will be no requirements or restrictions. He stated the document before the Board could be more stringent than the performance standards; and the three options are to let them come in with no restrictions, deal with it as a performance issue, or deal with the specifics.

John Harris disagreed with Chairman Scarborough’s conclusion that after August 12, 1999, Oleander can come in under the old Code. He stated everyone knows the Board is considering changing the performance standards; they have been unable to get their vested rights determined; they have appealed that; and the red flag doctrine of the estoppel argument is not going to apply regardless of the expiration of the moratorium on Thursday. Mr. Knox stated the moratorium expires on Thursday, and if there are no new rules, it will be necessary to review the site plan under the old rules. He advised it is not necessary to have vested rights to get a site plan reviewed under current rules. Mr. Harris stated once a person is aware that the rules are going to be changed, it is necessary to wait until the change is made. Mr. Knox inquired how long should Oleander wait; and stated it has been eight months, and he is not going to risk the public money by advising the Board to tell Oleander to wait until it adopts performance standards zoning. Mr. Harris stated the moratorium expiration does not matter; and Oleander has to wait until a new Code is drafted. He stated the Board has already said no power plant plans should be processed until there are new performance standards; and inquired what has changed.

Commissioner Carlson stated the Land Development Code is not changing; and the current Ordinances do not cover power plants having a conditional use; so there was no public input. She stated they are not talking about development of the parcel, but the parcel and its impact to the area; and recommended separating the actual Land Development Regulations and what the Board is dealing with now. Mr. Knox stated they are two separate issues; and when there is a set of rules in effect, they should be followed. He stated the Board had rules in effect for site plan review in December, 1998; the Board enacted a Moratorium Ordinance putting everyone on notice that it was going to pass new performance standards that may govern this particular project; however that has not come to pass and if it does not come to pass by August 12, 1998, then it goes back to the rules that were existing in December, 1998. He stated the Board cannot hold up development indefinitely while it works on rules; six months was a reasonable time to work on the rules; but the Board has not gotten there yet. He stated if no new performance standards are adopted, that will be an issue to consider at some time in the future; the question will be what to do with existing developments that have already applied for development approval; and those proposed developments will have to be reviewed under the regulations that are in place. He stated the agreement today does not address any of those rules and regulations, but does put the representations that have been made by Oleander into an agreement. He stated the Board will agree to settle the lawsuit based on those representations.

Marlene Waters advised on December 1, 1998 there was a motion amending the Zoning Codes to provide that all power plants require a conditional use permit in the applicable zoning classifications which was passed unanimously. She stated now Oleander is going to be allowed to build because of the lawsuit; and she fails to see how this is a compromise. She stated the second whereas paragraph on page 1 says, “owner desires to develop property as a peaking power plant facility pursuant to this agreement”; and suggested it be listed as a capacity size 950 megawatt combined cycle peaking power plant. She stated she has confirmation from DEP that a combined cycle facility can start up just as fast in simple cycle mode for peaking purposes; and advised of the advantages of it being a combined cycle plant. She stated they will be able to produce low cost power; but Mr. Wolfinger has said that the power with the peaking facility will be the most expensive. She stated she has heard prices up to $7,000 a megawatt, which is not in the best interest of Brevard County. She stated their vested rights document says consumers and the community as a whole will benefit from the combined cycle facility’s production of low cost power; and inquired why the original intent was changed, and was it because it would have had to go under the Power Plant Siting Act. She commented on the use of natural gas, the High Desert Power Project, water use, comparison of Oleander plant with other projects, and reuse water. She inquired what Oleander will have to do to replace the 75 to 80% of the water they evaporate. She stated if Oleander Power Project had to undergo review by the Public Service Commission, it would assure the people that the plant would be in the best public interest. She stated as part of its plan for development of the property, the owner wishes to maximize the compatibility of the proposed development with abutting landowners and affected facilities; and suggested adding “and surrounding.” She stated page 3, paragraph 2, provides that the owner shall limit the operation of the facility to an annual capacity factor of 49%; and advised of an impact study comparison of the power plant to an office complex that was based on 800 hours instead of 3,390 hours. She suggested it be changed to, “the owner shall limit the operation of the facility to an annual capacity factor of 10% which is equivalent to 876 hours per year at its full capacity.” She stated on page 12 of the Oleander Fact Book, there is a statement that the plant is expected to operate only 5 to 10% annually; on page 18, it states, “existing peaking plants typically run between 200 and 600 hours each year”; so 876 sounds reasonable. She suggested page 3, paragraph 3, be changed to provide that the owner shall burn natural gas as its preferred fuel and shall limit its use of backup fuel oil low sulfur to a maximum 30% of the total hours of operation or 263 hours of operation of the facility per year operating at full load. She stated Oleander has stated publicly that it does not expect to operate any more than 100 hours on oil, so 263 hours would be reasonable. She stated page 3, paragraph 4 provides that the type of fuels utilized and the authorized number of hours referred in items 2 and 3 immediately above may not be modified or increased without the approval of the County, granted at a public hearing; the County is pre-empted from exceeding any DEP laws; and recommended changing the wording to the type of fuels utilized and authorized number of hours referred to in items 2 and 3 immediately above may not be modified or increased regardless of the permitted hours authorized by the Florida Department of Environmental Protection without the approval of the County granted at two public hearings, the first being before the LPA and with proper notices pursuant to Brevard County Code, Section 62-1151. She stated pages 3 and 4, paragraph 5 provides that the owner shall develop the property in a manner that establishes a minimum front yard of 40 feet with perimeter fenced stormwater management facilities being the only structure situated within the front setback; the Oleander Fact Book says the front setback would be 172 feet; but now it has been changed to 40 feet. She stated the settlement agreement provides for establishing a minimum side yard of 340 feet (east side) and 165 feet (west side), these setbacks being recognized as considerably wider than the required setback of 15 feet; the Fact Book says the side yard would range from 280 feet to 540 feet; so that has also been changed. She stated the settlement agreement provides for establishing a rear yard setback of 25 feet abutting the Florida Power & Light substation to the north; the Fact Book says it would be 700 feet; so it is going from 700 feet to 25 feet. She stated the agreement provides for establishing impervious lot coverage of no greater than 15%; and suggested changing it to no greater than 10% because the Oleander Fact Book on page 7 says 90% of the site would remain pervious. She stated paragraph 6 on pages 4, 5 and 6, provides that the owner shall develop the property in accordance with the following district industrial performances standards; and read aloud from sections on noise, odor, and vibration. She recommended changing the noise standards to, “as measured at all property lines of less than 65 dBA, and as required by Section 62-2254 of the Amended Code. This noise limitation shall also apply during construction, renovation, or maintenance of the facility.” She stated page 23 of the Oleander Fact Book says that the current noise levels at the property lines range from 46 to 69 decibels; and stated 65 dBA should be enough. She suggested stated oil tanker truck deliveries will comply with Florida Department of Transportation weight and dimension limitations, and deliveries will be limited to no more than two per hour between 6:00 a.m. and 9:00 p.m. and one per hour between 9:00 p.m. and 6:00 a.m. She stated there is a question as to how many acres the site is; according to page 6 of the Oleander Fact Book, the site is 38 acres; but according to the Brevard County Land Development fee application form, the site is 35.273 acres. She commented on average truck traffic; and advised the change made today takes care of the issue. She read aloud language dealing with pavement; and suggested adding, “and after improvements have been made at owners expense to bring the road to standards required for a collector or arterial road.” She commented on the impact of trucks on the roadway. She read aloud page 6, paragraph 7 regarding making reasonable effort to minimize impacts; and stated it is not enforceable because reasonable effort is not defined. She stated under water quality, it says all sewer discharges shall be approved; and recommended adding “by separate agreement with the public utility.” She recommended adding that potable and reclaimed water may be provided by separate agreement with the City of Cocoa. She suggested adding that necessary improvements to infrastructure will be made at the expense of the owner to insure that 99% of water used for NOx emissions control will be reclaimed water within five years from the date of commencement of operation, and that before construction at least 1,000 acres of recharge land will be purchased and conserved perpetually by the owner, successors, or assigns to help replace the water taken from the aquifer during the first five years of operation. She read aloud language dealing with heat and humidity; commented on the amount of hot gas which will be emitted and its effect on birds; and advised Florida is a major migratory corridor for many species of small songbirds which are federally protected. She stated if the facility was a combined cycle, it would require a taller stack and the threat would be much less. She stated page 7, paragraph 7 refers to the application being submitted on December 11, 1998; on December 14, 1998 the actual engineering drawings were signed off by a State certified engineer; and they were not submitted to the County until December 17, 1998. She questioned whether the site plan was complete by County Codes on December 14, 1998; and stated there were not two proofs of ownership. She advised of a picture showing the area which was submitted by Oleander on December 9, 1998; stated page 8, paragraph 7(h) says that upon maturity, the landscaping will be effective in screening no less than 50% of the structures; and recommended it be changed to 80%, as there is still a question of how long the wait will be to the maturity date. She stated page 9, paragraph 13, says, ”upon acceptance and recording of the Agreement, the County shall be deemed to have approved the site plan, as amended by the terms and provisions of the Agreement”; she does not like that statement because the site plan has not been reviewed; and suggested adding, “pursuant to the normal site plan review process and in accordance with the existing codes.” She stated on August 3, 1999, staff advised the site plan had not been processed and fees had not been deposited, but were held in a vault. She stated page 9, paragraph 17 says, “the County shall, in the ordinary course, process such applications and requests from the owner during the development and operation of the property and facility”; and recommended adding, “except that at no time will revisions to this agreement be considered nor will any tax-abatement applications be presented by the owner, successors or assigns.” She stated the people do not want anything less than the most efficient plant, which would be a combined cycle plant that would have to undergo a PSC review; and if Oleander is not able to build that kind of facility on that lot, she would suggest reducing the scope or find a different site. She stated she submitted a suggested conditional use permit months ago; and distributed copies. Robert Coleman inquired about current and potential pollution levels; and commented on hours of operation for the plant.

Chairman Scarborough stated a copy of Marlene Waters comments will be available for review.

Rick Wolfinger, Project Manager of the Oleander Power Project, stated in terms of page 5, paragraph (g), there will be a total of 5.6 million gallons of oil stored onsite; it will be filled over several months; and that will only involve a couple of trucks at a time. He stated when they are actually operating, there will be a maximum number of trucks, 40 at night and as many as 96 during the day; 5.6 million gallons is good for 72 hours of continuous operation without any trucks; and the intent is when they start to burn oil, they will start scheduling trucks, but whether they will ever meet the maximum amount depends on the trucking availability. He explained about peak demands; stated if there is an emergency in the State, they will be bringing in oil in at a rapid rate; and they want the ability to make sure that the plant will be able to provide the kind of services that the wholesale electric providers are looking for. He stated it would not be prudent to ask for less than the maximum amount of oil trucks they could bring in at any point in time. He stated Commissioner Higgs asked about a percentage of reclaimed water; the City of Cocoa expects that approximately 65% of the water the plant will use will be reclaim water; but that is not a guarantee. He advised the first group which will get reclaimed water will be the existing residents of Cocoa; and as the system
is expanded, the residents will also be the first to get it. He stated most of the time they will operate be in the summer when there is less demand for reclaimed water because there is rain; a great deal of stormwater is generated in the summer; but stormwater is not being collected and put into the reclaimed system. He stated when stormwater is recaptured and put into the system, it will enhance the amount of water available in the summer; but the City cannot guarantee it. He stated they have 5.6 million gallons of water onsite; and advised of intent to use the reclaimed water, when users are not using it, rather than it being discharged into the Indian River. He stated he does not have an agreement with the City; and the amounts given are estimates. He stated another question that came up concerns the upgrading of Townsend Road after four years and putting bonds in; the concept is that after four years, they will find out if the road will be stabilized or not; if it has not gone down in the first four years, or if it has maintained, they will set it up in a condition where it will maintain itself for the expected life of the operation. He commented on odors and visible emissions; stated odors are created within the property lines; but the statement in the Fact Book is that the residential communities on the other side of I-95 and on Cox Road will not smell any odors from the plant. He stated they do not believe there will be any odors at the property lines.

Chairman Scarborough stated it says “no smell emitted”; and if there are no emissions, it should state that; with Mr. Wolfinger responding there will be emissions. Chairman Scarborough stated he meant visible emissions. Mr. Wolfinger stated Florida Department of Environmental Protection has an opacity meter; and recommended the DEP standard be used. Chairman Scarborough stated that was not qualified in the agreement; with Mr. Wolfinger responding the agreement is approximately 25 pages and only so much can be included before it becomes too technical. He stated Oleander does not have visible emissions any greater than are allowed in the DEP permit which is below the levels that can be discerned. Chairman Scarborough stated he hears about the power plants, and comparisons between OUC which is not visible, and FP&L which is visible; and visible emissions need to be directly addressed. Mr. Wolfinger stated they can address it in the same way they did in the DEP permit, using the same language. Chairman Scarborough stated FP&L is not in violation, but everyone coming back from Orlando can clearly see the emissions; and just saying it will not exceed emission requirements does not leave a sense of comfort, while the words “no visible emissions” give people a level of comfort. Mr. Wolfinger advised the FP&L permit is a 1964 permit; their opacity standard is very high; but Oleander will be a 2001 or 2002 plant, so there will be a set of stringent regulations that do not exist on the FP&L plant. Chairman Scarborough recommended it be defined. Mr. Wolfinger stated Ms. Tees brought up the question of who will benefit; there is a list of the dirty dozen, which are the plants with the highest emission standards in the State; and the Port Canaveral plant is one of them. He stated the concept of the Clean Air Act which was passed in 1970 is as new businesses come in, standards will get tighter and tighter and there will be fewer emissions per unit of output. He stated over time older industries, through competition and new technology, will be retired, abandoned or replaced by newer plants; and the kind of plant they are building will have very tough standards, much tougher than ones built in 1964. He stated it will promote a level of wholesale electric competition in Florida and put greater pressure on the older plants. He stated this is the most likely way to clean up the dirty dozen plants under the present scenario; and that is a benefit to the County. He stated if the County does not allow new plants to come in, then it cannot allow the normal process of the Clean Air Act which is replacing old plants with new cleaner plants; he is not saying it is a direct causal effect; he cannot say if the Oleander plant comes in, the Port Canaveral plant will go down; but it will provide competition which will force that. He commented on the Clean Water Act. He stated they will only have 12 people who work fulltime at the Oleander project, but there is an operations and maintenance staff that does annual overhauls; those are the kinds of jobs that will be contracted out, so a lot of jobs will be created on an annual basis, once the plant gets operating; and those jobs require highly skilled people. Mr. Wolfinger stated they are regulated by the Federal Energy Regulator Commission as a wholesale seller of electricity; their rates are regulated by the federal government; and they are into the wholesale deregulation competition. He stated 60% of an electric bill comes from production of electricity; 40% comes from running the wires, reading the meters and supplying the bill; they are going to be in the 60% of the bill from FP&L; and competition will force it down. He stated there was a comment that Oleander is profiteering; but FP&L was just told to refund $1 billion which was overcharged to every individual in the service territory; and that came out as a result of work of consumer advocate Jack Shreve. He stated Oleander is certainly going to make a profit, but it will have to compete; it cannot sell its product for any more than what the market is going to buy; if FP&L can make electricity cheaper than Oleander, they will sell it to the public; but if Oleander can make it cheaper than FP&L, the company is duty bound to buy it from Oleander and lower the public’s rates. He commented on rates, lack of capacity, and supply and demand; and stated the State does need capacity. He stated there was a comment made that Oleander is buying its way into the City of Cocoa by being a sponsor of the Mardis Gras; and noted support of other entities. Mr. Wolfinger stated Oleander Power Project is happy with the document the way it was drafted by Attorney Spielvogel; he has tried to address comments; and Attorney Spielvogel and Mr. Zwolak are present to respond to questions.

Chairman Scarborough stated the Board has a number of questions dealing with specific language of the document. Discussion ensued on the schedule.

The meeting recessed at 12:26 p.m. and reconvened at 1:00 p.m.

REPORT, RE: CAR LOAN ORDINANCE

County Attorney Scott Knox stated he was contacted by the Cocoa City Attorney who requested the Board consider adopting the car loan ordinance as a Countywide ordinance. He stated the City voted on it last night, and agreed to go that route; and if the Board chooses to adopt the ordinance Countywide, it will require a 60-day notification for the cities.

Motion by Commissioner Voltz, seconded by Commissioner Carlson, to direct the County Attorney to prepare the proposed car loan ordinance to be effective Countywide, advertise it accordingly, and provide property notification to the municipalities. Motion carried and ordered unanimously.

RESOLUTION, RE: COMMENDING JON PAUL BROOKER

Commissioner O'Brien read aloud a resolution commending Jon Paul Brooker for his achievement in receiving the Eagle Scout Award.

Motion by Commissioner O'Brien, seconded by Commissioner Voltz, to adopt Resolution commending Jon Paul Brooker for his achievement in receiving the Eagle Scout Award. Motion carried and ordered unanimously. (See page for Resolution No. 99-171.)

DISCUSSION, RE: WORKSHOP ON PROPOSED BILLBOARD ORDINANCE

Commissioner Higgs stated representatives of the billboard industry want to have a workshop with staff prior to the Board considering the ordinance; she sees no problem with staff holding a workshop and inviting the public, including the billboard industry; the moratorium on billboards expires September 30, 1999; and requested the Board direct staff to hold a workshop.

Commissioner O'Brien stated he cannot support that; he is against any billboard in Brevard County, and will work diligently towards removing all of them; and the public has spoken loud and clear that they do not want billboards. He stated he does not want to cut a deal with billboard representatives; and advised of the success of the City of Jacksonville in getting rid of billboards.

Commissioner Higgs stated she understands that stance, and is not supporting billboards; but some cannot be removed; and she has no problem with staff having a workshop so everyone understands what is being proposed. She stated it would be a public workshop; and she would prefer there was some discussion before everyone shows up at a Commission meeting.

Commissioner Carlson stated she met with the billboard representatives and the Jacksonville attorney; and she understands he has spoken with staff. She stated the attorney offered a lot of good information; it would be nice to have him address the Board; and she has no problem with a workshop. Commissioner Higgs stated the original request was to hold it after Labor Day, but it needs to move quickly. Commissioner O'Brien stated there are four billboard companies in the County; approximately ten to twenty companies use their services; but he must listen to the constituents. Commissioner Higgs noted the workshop is for everyone. Commissioner Voltz commented on the proliferation of signs on Merritt Island.

Motion by Commissioner Higgs, seconded by Commissioner Carlson, to authorize staff to schedule an open workshop as soon as possible with the billboard industry and public to discuss the proposed billboard ordinance.

Discussion ensued on the presence of the Commissioners at the workshop.

Chairman Scarborough called for a vote on the motion. Motion carried and ordered. Commissioners Scarborough, Higgs, Carlson and Voltz voted aye; Commissioner O'Brien voted nay.

Chairman Scarborough stated he would be concerned about turning over the drafting of the ordinance to the billboard company, but that is not what is happening.

Commissioner O'Brien stated he liked a lot of the recommendations made by Ms. Waters; and he would like to change the second whereas paragraph on page one to read, “owner desires to develop the property as a peaking power plant utilizing water conserving technology such as air cooling where possible, pursuant to this agreement.” He suggested the words “and surrounding” be added after the word “abutting” in the third whereas paragraph. He inquired how many hours per year is the plant permitted to operate; and expressed confusion about the hours. Mr. Wolfinger clarified the air permit allows a total operation of the plant of 3,390 hours per year; it further limits the operation of the plant to 1,000 hours under oil; in theory, he could operate 100 hours all on oil with no gas usage. He stated the peaking fleet operates approximately 200 hours a year; Intercession City operates approximately 500 hours a year; and approximately 35% of the time, it is with oil. Commissioner O'Brien stated the Fact Book says that existing peaking plants typically run between 200 and 600 hours each year; and inquired if it is the same for Oleander. Mr. Wolfinger stated since they are a little more efficient than other peaking plants, they expect to run approximately 800 hours a year. Commissioner O'Brien suggested limiting operation to an annual capacity factor of 10%. Mr. Wolfinger stated the problem is the people who want to buy capacity are buying it for an emergency, not what is typical; and an example of what might happen is if the five nuclear plants in the State came under some sort of regulation that shut them down for two or three years, there would be a power shortage, and he might have to run 2,000 hours to meet those requirements. He stated the peaking plants are a last resort; typically they have been operating 200 to 600 hours a year; and commented on unreasonable limiting to a short period of time.

Commissioner Voltz inquired if it was limited to 876 hours, would that drive the cost up; with Mr. Wolfinger responding no. Mr. Wolfinger stated he is being paid to be there, not even to run any hours at all; and the number of hours he runs does not affect how he gets his revenue; but it affects the marketability of the peaking capacity. He stated if he is limited to 800 hours, people will not want to buy that capacity; and it will serve a less useful purpose in the State. He stated the Florida Department of Environmental Protection limits peaking plants to 3,390 hours; and that is a defined product.

Commissioner O'Brien stated page 3, paragraph 3 says the owner shall burn natural gas as its preferred fuel and shall limit of its backup fuel oil (low sulfur) to a maximum of 30% or 263 hours.
He inquired if Mr. Wolfinger said he would use up all the fuel in the tank at 72 hours; with Mr. Wolfinger responding that is how much he has in onsite storage with no truck deliveries. Commissioner O'Brien inquired if the tanks would be refilled four times in one year; with Mr. Wolfinger responding that sounds right. Commissioner O'Brien inquired how many truck loads per tank; with Mr. Wolfinger responding 700 to fill an entire tank. Commissioner O'Brien stated running 70 trucks a day for ten days would fill the tank; and inquired if it is one or two tanks; with Mr. Wolfinger responding it is two 2.3 million gallon tanks, and the water tanks are the same capacity. Commissioner O'Brien stated Oleander is not asking for something beyond its capability; they stated at a public meeting and on the radio that they expect to operate no more than 100 hours per year using fuel oil; and the changes to page 3, paragraph 3 should not adversely affect Oleander. Mr. Wolfinger commented on the difference between expected hours and permitted hours; stated there is one natural gas pipeline coming into the State; it had an explosion in August, 1998 which shut down 80% of the capacity; FP&L is going to gas only; and there is a great deal of concern at the PSC that there is too much dependence on a single gas line coming into the State. He stated the people who are buying Oleander’s capacity want to see an oil backup system to be sure that if there is a lack of supply, there is an oil capacity. He stated if new natural gas pipelines come into the State, it will become more available even if it does not come into Brevard County because other users in the State will use the capacity that is with the Florida Gas Transmission, which will make gas more available; but he cannot count on something that has not happened yet. He stated he hopes he never has to burn one hour of oil; but he cannot count on that at this time. Commissioner O'Brien stated Oleander is asking for 11 days a year. Mr. Wolfinger stated they wanted Oleander to limit itself to 30% of total operations; as he said earlier he might end up having 10 hours or 100 hours of nothing but oil, and there may be a mild summer and a warm winter where he will run very little; but he cannot agree to limiting a percentage of the total operating hours. He stated there are peaking plants that do not run at all during a year, or run only 20 to 50 hours; most of the peaking plants in Florida run only on oil; and it is only the newer plants that have operation, but all peaking plants have oil backup. Commissioner O'Brien stated the limitation to 263 hours is 11 full days of using diesel fuel versus 1,000 hours which is approximately 25 days; and if the pipeline blew up, they would have it repaired before 11 days.

Discussion ensued on what will happen if the pipeline blows up, days of oil operation, permit restrictions, and lack of flexibility.

Commissioner Carlson inquired if Commissioner O'Brien is concerned about the truckload or the actual use of the oil backup; with Commissioner O'Brien responding both. Commissioner O'Brien expressed concern about various routes and the traffic load on the roads, and pollution from the use of diesel fuel in any quantity other than the lowest quantity possible. Commissioner Carlson stated the impact of the pollution for 3,390 hours operation with 1,000 hours on oil is equivalent to a gram which would be spread over six acres for the total usage. She noted the oil will be a low grade, high quality sulfur oil which has no visible emissions; so she is convinced about that issue, but the truck issue is another concern. Commissioner O'Brien stated on paragraph 8, Ms. Waters suggested oil tanker truck shipments at two per hour between 6:00 a.m. and 9:00 p.m. and one per hour at night, which is reasonable; and the owner is looking at a high of five and a low of three. He stated once the tank is filled up, the facility is not going to use the entire amount of fuel on hand and then start refilling; they will refill as they use; and so Ms. Waters’ suggestion will be a lot more reasonable. He expressed concern about putting four or five trucks per hour on the road through the City of Cocoa or across Merritt Island; and requested the Board look for a solution to this problem.
He stated Townsend Road is not the problem; but the problem will be SR 520 and US 1. He expressed concern about page 7, paragraph 7(b), water consumption; and stated although there is no water shortage at this time, there are water restrictions, and he wants to make sure the Board takes a serious look at the whole thing to make sure the public is not shortchanged by a water shortage created by the peaking power plant.

Commissioner Higgs expressed concern about the decibel level at the property line; stated page 4, paragraph 6(a) establishes 70 dBA, which is an excessive noise level on the property lines that should be decreased; and the Sierra Club has proposed 55 dBA. She recommended a defined percentage of reuse or defined efforts for securing stormwater to be used by the plant; stated the Board needs to work on bonding or some way for long-term responsibility for Townsend Road; and mature landscaping and buffers need to be defined further. She stated paragraph 14, page 9 was discussed earlier in defining conditions; and recommended Oleander look at the conditions that have been suggested by Marlene Waters and others.

Commissioner Carlson stated the setbacks and the buffering on page 4, and the language about impervious lot coverage should be clarified. She stated on page 6, Mr. Wolfinger talked about a four-year period for maintenance of the road; and inquired what authority the Board would have after the four-year time frame. County Attorney Scott Knox stated Mr. Wolfinger’s comment was that at the end of the four-year period, they would determine whether the road, as constructed at that point, would maintain the kind of traffic they are going to generate, and if it did not, they would upgrade the road to meet the requirements. Commissioner Carlson requested that be expressly put into the agreement. Commissioner Carlson stated the agreement says access to the property will be by Townsend Road; and inquired if that was reworked to be from the Port to SR 520, and then down Townsend Road; with Assistant County Manager Peggy Busacca responding that is what it says; and on the way out, it will be a right hand turn on Townsend Road to I-95. Commissioner Carlson expressed concern about water quality; stated the agreement says all sewer discharges shall be approved by the public utility which provides sewer service to the property; and inquired if annexation occurs, what authority would the Board have, and can language be included that keeps the County the guiding power on this issue. Mr. Knox responded the law will govern what the effect of the annexation will be; and recommended including a general provision saying that to the extent allowed by law, the provisions of the agreement will continue in full force and effect, not withstanding any annexation. She stated on page 7(b), dealing with water consumption, Commissioner O'Brien brought up the issue of residences first for reuse water; and inquired if the Board wants to make sure that is explicitly part of the detail. Commissioner O'Brien advised he was more worried about potable water. Commissioner Carlson stated it would be nice to have someone from the City address those issues on Thursday. Commissioner Higgs stated a written response would be fine; with Commissioner Carlson agreeing.

Commissioner Voltz expressed concern about the setbacks, truck shipments, the four-year agreement on Townsend Road, buffers, and the site plan.

Chairman Scarborough recommended the main allegations in the Fact Book be incorporated in the agreement. He noted the Fact Book says no visible emissions and that the stacks will not emit any smoke or visible emissions; it is stated a number of times; and it should be defined. He stated the Fact Book stated that the plant will not be seen except for a small stretch on I-95; but it also talks about 50% opacity at maturity; and 50% is far from being what he considers a buffer. He stated staff has provided the applicant with information on where they can find large live oaks; they are putting in a $200 million plant, and they are talking about putting in 15-gallon laurel oaks that become semi-deciduous in cold weather and have a shorter life span; and for several hundred dollars they could buy 100-gallon live oaks. Commissioner Voltz stated one of her questions was how high will the landscaping be. Chairman Scarborough stated there have been comments about this being an oak hammock, but there are a lot of pine trees which do not insulate to the same degree that oak trees do; and he would like that to be addressed. He recommended the City of Cocoa get a copy of the agreement to see if there are any questions or input because there are a lot of references to participation of the City. He stated there are a lot of things that need to be defined, including what is low sulfur, number of hours of operation, and number of hours of low sulfur; and expressed concern about the number of trucks per hour. He stated the trucks will be going down the heart of Merritt Island and Cocoa; and suggested having no truck traffic during major commuting hours. He stated page 9, paragraph 11 talks about financially assisting the City of Cocoa; and recommended getting input from the City as to what it wants in the document. He stated he would like to review the landscape plan to ascertain that there is plant material that could work; and if that could be provided to staff for comments by Thursday, it would be helpful.

Attorney Leonard Spielvogel stated on the 50% opacity, all the subsections relate to the performance standards; and they thought they were doing the right thing. He stated the performance standards have not been adopted by the Board; and requested the Board look kindly toward his client who did not ignore the performance standards because they are not the law. He stated the 50% comes from the performance standards; he thinks they can do better; and they will take another look at it.

Chairman Scarborough stated the opacity issue is complex; and described a situation in Cidco Park where a person wanted to put industrial closer to one of the major arterials, and the wording was 100% opacity. He stated the County does not want to see industrial because it is a tourist community; and while it has not adopted performance standards, the Board has talked about opacity and industrial along I-95 and SR 528, and it has always been 100% opacity. He stated every document that is before the Board is not only going to take the reference from something that has been drafted by someone outside the County, but also what the Board has discussed previously on other industrial zonings.

Mr. Spielvogel stated in terms of truck traffic, the number he is getting from staff is what they are anticipating putting on the road is 64% of the concurrency that would be otherwise allocable to the property; in order to evaluate, it will be necessary to see the traffic load on SR 520 that other businesses place on the road system; taken in an isolated way, it sounds like a lot of vehicles; but it will be necessary to know how many other vehicles are out there. He inquired how many trucks pull in and out of Starvin’ Marvin across the street; and stated when they have that information they can better compare. He stated he may need some assistance from the County because there are a lot of rules and regulations; and in order to evaluate, they will need to see the overall picture.

Chairman Scarborough commented on the effect of trucks on rush hour traffic; and stated if it could be worked out, it would be nice.

Assistant County Manager Peggy Busacca advised staff has two petitions, one is the co-signers of the DEP letter of December 12, 1998; and the second is a series of signatures in opposition to the power plant.

Chairman Scarborough inquired when the Commissioners will have something to look at; with Mr. Spielvogel responding he should have something by Wednesday. Mr. Spielvogel requested an opportunity to involve the County Attorney in the drafting of the document because he has a different point of view; and stated that might carry over to Thursday morning. Chairman Scarborough suggested a workshop session on Wednesday evening. Commissioner Voltz advised she has school. Chairman Scarborough stated the only way to do it is to sit across the table and work it out. Commissioner Higgs stated the Board is scheduled to meet at 5:00 on Thursday; and suggested meeting a little earlier than that. Commissioner O'Brien suggested meeting at 3:00 p.m. on Thursday, August 12, 1999 in the Florida Room in workshop format with Constellation Power to resolve the problems. The Board and Mr. Spielvogel reached consensus to hold a workshop.

Motion by Commissioner Carlson, seconded by Commissioner Voltz, to continue the special meeting to August 12, 1999 at 3:00 p.m. in the Florida Room. Motion carried and ordered unanimously.

Commissioner O'Brien stated everyone is saying the Board is doing things in a hurry; and he would rather extend the moratorium to work this out properly. Commissioner Voltz stated the Board cannot do that as it is too late. Chairman Scarborough stated the Board has been advised several times that it has to have so many public hearings. Commissioner O'Brien suggested a new moratorium. Commissioner Voltz stated this can be settled on Thursday. Mr. Knox advised of the notice and hearing process for another moratorium; and stated they cannot be adopted by emergency ordinance. Chairman Scarborough stated the Board does not have time to do implement a moratorium between now and Thursday.

Mike Stallings inquired if it would be possible to add something to the document so that it would still be effective if the moratorium expired; and stated at midnight on Thursday, Oleander can build a power plant if the agreement is not done by that time. Chairman Scarborough stated he has no idea how things will come together. Mr. Stallings stated if there was a clause in the document, it could continue past the end of the moratorium. Chairman Scarborough stated the Board does not have a document until both sides agree on it. Mr. Stallings suggested making an agreement that the document will continue in some form after the moratorium. Chairman Scarborough inquired if there is a way to continue the matter with Mr. Spielvogel and his client to give more time to discuss the settlement. Mr. Knox stated they could agree to do that, but it is up to them; and if they want to waive the Friday court date and continue negotiations, that is fine. Mr. Spielvogel stated they have responded to the concerns of the Commission and the public in many different ways; but there are those who will not listen; they are prepared to do whatever they can and spend whatever time is necessary to accommodate the Board’s schedule and get the needed information in order to make a decision; but those who want to extend it just want to kill the deal; so the answer is no, they cannot extend the moratorium. He stated they are willing to make further modifications to win the Board’s support, but there is nothing they can do to win the support of those who are adamantly opposed to the project; and he does not see any point in extending the time. He recommended keeping the pressure on everyone and operating under that pressure to get this done. He commented on the effect of the Oleander Project on the County’s performance standards; and expressed concern that bad decisions may be made on performance standards which will extend long after the power plant is built.

Chairman Scarborough stated the Board will meet on August 12, 1999 at 3:00 p.m. in the Florida room to discuss this further; and the Commissioners will get information before the meeting.

Craig Bock stated he is troubled by the fact that Brevard Citizens Against Pollution (BCAP) has done a lot of research and provided a lot of information, and it does not seem well represented. He stated one of the group members did a little research and found out that a binding site plan is illegal; Mr. Knox advised they are done all the time; and then all of a sudden, apparently when the group’s attorney got involved, it became illegal and the name was changed to stipulation agreement. He
Inquired how it can be legal and what was the basis for it being illegal. He stated the County does not need to give away any tax abatement to a Title 5 polluting industry; and paperwork has been submitted to show that late 1980’s technology is what Oleander will use during the burning of oil. He inquired why all of a sudden the stipulation agreement is legal when it was not as a binding site plan. Mr. Knox stated it is a stipulated settlement agreement; and it is not a binding development plan because a binding development plan is a specific type of document that relates to a rezoning which this is not. Mr. Bock stated the citizens of Brevard County do not feel well represented or fairly treated.

Commissioner Higgs stated she understands the concern, but the plan that was sent to the County Attorney was sent by the attorney for Oleander as a draft; the County settles lawsuits all the time through a stipulated settlement agreement; that is what it is doing in this case; and the development will go forward for staff review in regard to the site plan. She stated the Board is not adopting a site plan; and it will go through staff with the stipulations.

Discussion ensued on the performance standards meeting to be held immediately following this meeting in the Florida Room.

Upon motion and vote, the meeting adjourned at 2:07 p.m.

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TRUMAN G. SCARBOROUGH, CHAIRMAN
ATTEST: BOARD OF COUNTY COMMISSIONERS
BREVARD COUNTY, FLORIDA

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SANDY CRAWFORD, CLERK

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