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Mirant Fights Back

Battle to close power plant goes to court.

Officials representing the Mirant Potomac River Generating Station, located at the north end of Old Town Alexandria, have filed an action in Alexandria Circuit Court challenging the City Council's adoption of an ordinance to reclassify the plant as a "nonconforming use."

The ordinance was adopted in December 2004 reclassifying the plant and revoking the special use permits under which it operates. This action by the city "would require the plant to close within seven years, unless a longer period were to be approved by council, or to modernize and obtain city approval to continue operating," according to a press release issued by the city manager's office.

"We are prepared to vigorously defend the city's position in this case," said Mayor William D. Euille. "The next step is that we will conduct discovery and prepare to litigate the case," said Ignacio Pessoa, city attorney.

The suit was filed on Jan. 18 with the process issued the next day. Pessoa verified he was formally served on Jan. 24. "Typically these types of trials are argued within one year of the filing," Pessoa said.

IN ITS ACTION, Mirant alleges that the city's actions violate state zoning and environmental laws, and amounts to "an unconstitutional taking" of their property, according to the release. The suit seeks to:

1. Have the city's actions declared invalid;

2. Enjoin the city from enforcing its actions; and

3. Award damages for the taking of Mirant property.

Prior to City Council's actions, the city retained an air quality expert to assist city staff and counsel in evaluating the plant's impact on city residents. This outside expertise was also employed by the city in the ongoing state and federal regulatory and enforcement proceeding against the plant as well as in matters relating to Mirant's pending bankruptcy reorganization, according to Barbara Gordon, city public information officer.

The City Council also authorized the city manager to convene a "working group" of concerned and knowledgeable citizens to monitor the city's efforts. Vice Mayor Redella "Del" Pepper and Councilman Paul Smedberg serve as the council's representatives on that working group.

THE PLANT is one of the largest industrial facilities in Alexandria. It is a 50-year-old coal-fired electric generating plant with a generating capacity of 482 megawatts. It primarily serves consumers outside Virginia, according to the news release.

City Council and community groups have expressed continuing concern about the impact on nearby residents from air pollutants and toxic materials known to be emitted by coal fired power plants of that era and design, Gordon stated in the release.

Studies have been conducted for the past two years concerning the effects of the plant's emissions on the city. The original studies, conducted by a citizen group under the aegis of Poul Hertel and Elizabeth Chimento, raised questions about the plant's emissions and their effects on citizens in the area.

This was followed by other studies not only questioning the emissions but also another phenomenon known as "downwash." This pertains to high levels of noxious particulates being captured on the structure of a high rise building in close proximity to the plant's emission stacks. Of primary concern was and is Marina Towers and its residents.

Alexandria's Planning Commission, at its December meeting, voted to recommend that City Council revoke Mirant's 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.

DURING DISCUSSIONS at that Planning Commission meeting, Pessoa said, "This plant has been listed as a high priority violator by the EPA and even if the plant were to prevail on some of its corrections, the environmental violation alone is a zoning violation."

In referring to the "downwash" situation at Marina Towers, Pessoa stated at the Planning Commission meeting, "The city retained an expert to measure the pollutants on Marina Towers." He noted, "Those findings alone more than justifies revocation."

Following that meeting, the City Council voted unanimously to uphold the actions of the Planning Commission and revoke Mirant's special use permits. At that time the council also passed an ordinance making all coal-fired power generating plants non-conforming uses subject to abatement. Mirant is the only such plant in the city.

During public discussions at the Planning Commission meeting Harry P. Hart, representing Mirant, said, "This revocation raises serious problems for the commission and the council."