Planning Commission Revokes Mirant's Permits

Planning Commission Revokes Mirant's Permits

Final action is now in the hands of City Council

Although actions taken Tuesday night by the Alexandria Planning Commission against the Mirant Potomac River Generating Station had nothing to do with the primary function of the facility itself, they may prove to be the most lethal in the arsenal of legal weapons being used by the City to terminate the plant's existence.

By a unanimous vote the Commission approved the revocation of two Special Use Permits that applied to the use of 18,000 square feet of administrative offices and the plant's Transportation Management Plan. Both Special Use Permits were granted in 1989.

In presenting the case for the City, Ignacio Pesoa, City attorney, said, "This plant has been listed as a high priority violator by the EPA [U.S. Environmental Protection Agency]," and "even if Mirant were to prevail on some of its corrections" the environmental violation "alone is a zoning violation."

Citing the adverse environmental impact on Marina Towers from the plant's alleged release of particulates into the air, Pesoa said, "The City retained an expert to measure the pollutants on Marina Towers" and those findings "more than justifies revocation."

Representing Mirant, attorney Harry P. Hart, told the Commissioners, "This SUP has nothing to do with the operation of the plant. It has to do with the new office space that replaced a series of trailers in 1989.

"This revocation raises serious problems for the Commission and the Council. The Potomac River Plant has improved its performance since Mirant took over from Pepco in 2001."

THIS ASSERTION WAS challenged by a host of speakers, many residents of Marina Towers, who related stories of the ill effects they say they are suffering from the release of particulates and noxious gases into the air by the plant's operations. Many cited respiratory and other health-related problems as a result of dust and fumes seeping into their residences.

Among those speaking in favor of revocation were representatives of Old Town Civic Association, The Sierra Club, and Trout Unlimited who joined an array of individuals. Linda Russell, a Marina Towers resident, said she has experienced "severe lung disorders since living there" and recently "spent nine days in the hospital undergoing tests."

Pesoa pointed out that Mirant has been fined $12.5 million for EPA violations.

But, Hart countered, "There are no federal violations presently before any federal body."

In a detailed memorandum to the Commission, Pesoa explained, the SUP approving the 18,000 square feet of new administrative offices "triggered the requirement for a Transportation Management Plan for the plant. … Under then existing as well as current law, both permits were approved subject to compliance with all applicable codes and ordinances."

The provision, now part of the zoning ordinance, provides "that SUPs are revocable for ‘failure to comply with any law,’" the memorandum says.

Pesoa explained in his memorandum that "All uses operating in the UT [Utility] Zone are subject to "Use Limitations." This states, "No use shall be conducted in any manner which would render it noxious or offensive by reason of dust, refuse matter, odor, smoke, gas, fumes, noise, vibration or glare."

By Mirant's own admission to EPA in 2002, according to Pesoa, they "discharged more than 2.7 million pounds of toxic inventory chemicals into the air, and more than 2,500 pounds into the Potomac River. The highest levels reported were 3.3 million pounds into the atmosphere in 1999, and 172,000 pounds into the river in 1998."

Revocation of the SUPs "would prohibit … the continued use of the designated administrative and related office space, as well as operation of the entire plant without a valid Transportation Management Plan," Pesoa wrote.

He also stated, "Given the nature of the plant's public utility function, and the limited scope of these special use permits, it would be unrealistic to expect that revocation could lead to the immediate closure of the plant. Upon revocation the plant would be categorized as an illegal use, and no City permits for construction or upgrades could be approved."

AS WITH ALL ACTIONS of the Planning Commission, Tuesday night's vote to revoke the SUPs is a recommendation to City Council which has the final authority. In his final statement on the subject to the Commission, Pesoa wrote, "The operator [Mirant] could seek to cure the illegal status … by seeking from City Council new special use permits, subject to appropriate and reasonable new conditions."

However, as Pesoa clarified, "Under current practice, any such new SUPs would apply to and regulate the entire plant, including the five power generating units."

Following the vote, Planning Commission chairman Eric Wagner, praised Poul Hertel and Elizabeth Chimento for their efforts in bringing the problems associated with the Mirant plant to the attention of the community through their report, "Mirant Power Plant Emissions and Health Effects."

The report identifies air quality issues related to power facilities and describes actions necessary to deal with them. In a later study, it was Hertel and Chimento who spotlighted a phenomenon called "downwash" as it applied to Marina Towers, which stands in the shadow of the Mirant plant.

"Downwash" refers to particulate matter that strikes a high rise building located near smoke stacks that are emitting matter into the air. Such buildings, and their occupants, can be subject to an increased percentage of air pollutants. Many of Tuesday night's speakers cited the effects of that phenomenon in their testimony before the Commission.