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Court Backs City on Mirant

Nothing will pass to public view before Alexandria sees it

Alexandria officially became a part of the Mirant Consent Decree process last Friday as a result of a judgement handed down in the U.S. District Court for the Eastern District of Virginia. But, the City will not have a seat at the negotiating table.

That was the decision reached by U.S. District Judge Leonie M. Brinkema on Alexandria's petition to intervene in the amended consent decree negotiations pertaining to Mirant's operation of the Potomac River Generating Station at the north end of Old Town. In her decision Brinkema stated the following:

"The City of Alexandria is granted leave to intervene in this civil action on a limited basis according to the following terms: (1) the parties must provide the City with individual notice of all court filings and hearings; (2) the City may file pleadings and participate in any hearings that might be held regarding the entry of a proposed amended consent decree; and (3) the City will have the opportunity to review any proposed amended consent decree before it is lodged with the court."

However, she also said,"The City will not be a party to the ongoing negotiation of the proposed amended consent decree and must sign a confidentiality agreement regarding its review on any non-public version of such a decree."

At the very outset of the proceedings, Brinkema told the attorneys, "I've resolved this motion pretty much in my own mind. The City clearly has an interest in these matters. But, that doesn't mean they have a seat at the table. It does give them the right to be heard."

Attorney Arnold Rosenthal, U.S. Department of Justice, in an attempt to dissuade Brinkema from granting Alexandria participation argued that her decision would, in effect, "allow Alexandria to have a seat at the table at the last moment and could disrupt the negotiations. The parties are very close to an agreement. It is our intent to expedite this matter as quickly as possible."

Her response to that argument was, "I'm not going to cut Alexandria out of this case. I tend to think their presence will enhance this matter."

ROSENTHAL REQUESTED that the Court permit the parties to "finish the decree" at which time they "would share the decree with the City" before it was published in the Federal Register commencing the public comment period." The City's right to review was solidified by Brinkema's third proviso.

Arguing for the City, Attorney John Britton of Schnader Harrison Segal and Lewis, noted, "Alexandria takes the position that they are not adequately protected by either the Commonwealth or the EPA (U.S. Environmental Protection Agency)." He also pointed out that the consent decree was submitted in 2004.

"We are very satisfied with the Judge's order. It is very favorable to the City," Britton said after Brinkema entered her decision. "The key result for the City is that it is now a party to the law suit. We can bring directly to the Court's attention any items involving environmental and health issues of concern to the City."

Britton explained, "What's important is that the Judge ordered that Alexandria gets to review and comment on any modified consent decree before it is docketed. We can go before the Court to say we don't agree with the agreement for whatever reason."

Once the decree is published "what took place last September as far as comments are concerned will happen all over again," according to Britton. "But, there probably will not be public hearings. Those comments will probably be limited to written submissions," he said.

Alexandria City Council authorized the City's intervention in the Clean Air Act case pending against Mirant in May in order to protect interests impacting the City and its residents. "Intervention will allow the City the opportunity to advocate on behalf of City residents as proceedings in this case unfold," Alexandria Mayor William D. Euille said at that time.

Council's action was triggered by the disclosure that Mirant had not revealed it did not own two of the plants covered in the consent decree action. They only leased them from a group known as MirMa. After the proposed decree was made public MirMa objected to the terms and sought to intervene in the case.

MirMa Landlords opposed approval of the decree on the grounds that Mirant was seeking to gain the advantage of relaxed emission standards at the Alexandria plant, which Mirant does own, by requiring new regulations at the leased plants which are presently environmentally compliant. While negotiating the proposed decree, Mirant was also seeking the authority to terminate the leases for the two compliant plants, in a Texas Bankruptcy Court, according to the City.

MIRMA LANDLORDS maintain that they were not aware of the consent decree provisions until it was made public and that if the emission provisions were enacted it would "potentially diminish the plants' operational capacity during peak generating times." This brought about the renegotiation of the decree provisions and Council's action to seek City intervention.

Immediately prior to Friday's court hearing, Elizabeth Chimento and Poul Hertel, leaders in the fight to either force the closure of the Alexandria plant or to have it upgraded to comply with environmental emission standards, circulated a flyer summarizing the issues and various law suits. They identified the two main issues as 1.Primary particulate matter emissions; and 2. Downwash.

As to the latter, they noted, "The state-mandated Comprehensive Downwash Study has been held up by delays in protocol establishment." They also presented a brief synopsis of the three law suits underway: Mirant vs. Alexandria; MirMa Landlords' suit to gain intervention; and Alexandria's intervention action.

Mirant sued the City after Council upheld Alexandria Planning Commission's recommendation to revoke Mirant's Special Use Permits and rezone the plant property. "Last week [July 10] the court stated in a procedural issue, that Mirant has the right to sue the City," the flyer stated.

On June 22, Steven Arabia, director, External Affairs, Mirant Mid-Atlantic, stated in correspondence, "The environmental performance of our Potomac River plant ... is stronger now than it's ever been." He then listed the following improvements to buttress that statement.

*New Nitrogen Oxide controls to reduce emissions

*A $10 million project to install new emission controls

*Installation of new equipment and procedures to further prevent dust and ash from leaving the plant grounds

*Use of a new environmentally safe organic suppressant to reduce potential dust from coal

*Installation of automatic door closers at the coal car dumping station

*Installation of nearly 1,000 feet of 12-foot high windscreen to prevent windblown coal dust from leaving the coal pile . Installation of a wash station to clean ash-hauling trucks

*Washing plant roads and ash-loading area to contain ash in the plant

He also claimed the company's emission control actions are expected "to reduce NOx emissions from the plant by 25 percent from the 2004 levels." And, that other emission control actions have added an additional 10 percent reduction in NOx emission levels from 2003 rates bringing about a total reduction of 35 percent since 2002, according to Arabia.

Rosenthal told the Court the parties hope to have a renegotiated agreement by the end of August. Alexandria will then have an opportunity to review it before it is placed on the public record.