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City Mirant Motion Denied

Judge leaves door open to reconsider

A U.S. District Court judge decided it is too early to consider amending the consent decree on Mirant's Potomac River Generating Station's possible air quality standards violations.

U.S District Judge Leonie M. Brinkema rendered the decision on Dec. 2 regarding a motion filed by the City of Alexandria.

"Alexandria will have a chance to look at the decree before it is filed with this court. And until I see the decree we are operating in a black box," Brinkema told attorney John Britton of the law firm Schnader Harrison Segal & Lewis LLP. Britton represents the City of Alexandria.

Britton argued for a change in Brinkema's original ruling on the basis that the consent decree may now be based on operating the plant at partial capacity rather than full capacity. Operating the plant at full capacity was believed to have created air quality concerns.

"The decree will not now address the problems revealed," Brittton said. "There is pretty widespread pollution that has serious effects on the public health. The plant shut down of its own volition and then opened one generator without DEQ [Virginia Department of Environmental Quality] approval."

Britton said the underlying basis for the decree was the full operation of the plant.

Brinkema said the city needs to get a full review of what is in this consent decree before it comes to her.

When she asked the U.S. Department of Justice how long it would be until the finalized agreement came to her their response was "weeks."

IN DENYING the city's motion, Brinkema told the Justice Department that she wants status reports to continue.

"If I don't have the decree in the next two or three months, I will reconsider this ruling," she said. "I think this ruling is consistent with my original ruling."

The court action grew out of an Oct. 27 filing by the City of Alexandria to maintain its right to challenge the consent decree between the U.S. Government, the State of Maryland, Virginia's Department of Environmental Quality and Mirant Potomac River/Mid Atlantic LLC.

"Ironically it is Mirant that has opened the door by their actions causing this whole delay. That gives us the opportunity to challenge whether or not this [consent decree] makes sense anymore," Britton said in October.

"What we are asking is that the case take into account new violations at the plant. With the plant not operating at full capacity we are challenging the very contours of the consent decree," Britton said in filing the motion to amend the decree.

Two weeks before last week's court action Alexandria Mayor William Euille and City Council joined with local citizens and environmental leaders in calling for the immediate and permanent closure of the Mirant plant located in the north end of Old Town.

"Mirant has operated with callous indifference to the health of Alexandria's families," Euille said. "This outmoded coal plant is a hazard to the environment and to all who live, work and visit here."

Recent independent air-quality studies have added a sense of urgency to the City's efforts to close the plant. Air quality analysis also demonstrates the matter emitted by the Mirant plant is so small it cannot be detected the human eye.

"This invisible threat is of particular concern for the elderly, the chronically ill and children," Euille said.