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City Challenges Mirant Consent Decree

The City of Alexandria filed a motion Oct. 27 with U.S. District Court maintaining 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. The primary rationale is that recent actions and developments have eradicated the basic premise upon which the decree is based.

"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," said attorney John Britton, Schnader Harrison Segal & Lewis LLP, acting for the City in conjunction with City Attorney Ignacio Pessoa.

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

"We have requested a hearing date for some time in December on our challenge. I don't anticipate any written response from the other parties. The written work is done. The next step is the hearing," he said.

"The city has the right to do this and this is the right forum. We believe there are two issues before the court dealing with the safety to the citizenry and the air quality issue," Pessoa said.

The city's latest legal action contends, "The duration and purported complexity of the negotiations have been merely an inappropriate and unwarranted deference to Mirant's corporate agenda, an agenda that is contrary to the public health."

ALEXANDRIA'S ACTION states: "This court should authorize an amendment to the original Complaint" because "the pending consent decree … is deficient and inconsistent with the provisions of the Commonwealth of Virginia's federally enforceable State Implementation Plan (SIP)."

The consent decree assumed full operation of the Mirant plant, according to the city's memorandum. Since "The PRGS cannot operate consistent with the public health and welfare and in compliance with the NAAQS (National Ambient Air Quality Standards) ... as adopted by the SIP ... The consent decree no longer serves its intended purpose to protect the public interest and its approval would violate the SIP," according to the filing.

It further contends, "the circumstances related to the PRGS significantly changed. As a result of the air quality studies, the adverse impacts on the public health and welfare ... are now evident, and these harmful and unlawful emissions go far beyond the violation of law that is the basis of the original suit."

According to the city action, "even a limited operation of the PRGS imposes on the citizens of Alexandria significant adverse public health consequences." Due to the changed circumstances since the decree was first considered by the court, it now "hinders VDEQ's goal by ignoring the full impacts of the PRGS's emissions and the requirements of the SIP with respect to the NAAQS," the memorandum states.

IN ADDITION to emissions from the plant itself, the city also charges that Mirant has failed to take necessary precautions in preventing harmful air pollutants from escaping its coal pile at the plant as well as from trains and trucks to and from the site. "Mirant failed to apply these precautions ... for many years, beginning prior to 2001," the city states.

Finally, Pessoa stresses that although the parties "may be inconvenienced by any amendment to the original complaint, the only real prejudice in this case involves that to the public interest from approval of the proposed consent decree."

He assures the court, "Alexandria does not seek to change or impermissibly expand the scope or character of this law suit." But, "Alexandria's request is appropriate," he maintains. Therefore, "the complaint... should be amended to address all of the public health and environmental issues related to the PRGS."