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Feds, City Ling Up Against Mirant

City lawsuit takes new track to end Mirant operations.

Mirant's efforts to keep their Potomac River Generating Station operative took a double hit last week. One came from the Federal Aviation Administration, the other was a lawsuit filed by the City of Alexandria in Circuit Court.

Alexandria's action requested that the Court grant an injunction requiring Mirant to "abate, raze or remove the public and private nuisance that it has created and continues to create [and] remediate the effects of the intrusion of noxious, harmful and toxic substances that it has caused."

This action is based on the allegation that Mirant's operations are a nuisance to the city and its residents. "This doesn't rely on federal standards. It's based on what the plant is putting out and that that is considered a nuisance," said attorney John Britton, Schnader Harrison Segal & Lewis LLP, representing the city.

Mirant's second blow came with the FAA's rejection of its proposal to raise the height of their stacks. The FAA determined that the proposed increase would exceed obstruction standards and "result in substantial adverse effect that warrants a Determination of Hazard to Air Navigation."

"This is a blow to Mirant's overall plan to operate in the future incompliance with air quality standards. Mirant was hoping to include higher stacks in its package of mitigation efforts to present its case for environmental compliance. Now it has to remove higher stacks from the discussion," according to Britton.

"FOR OBVIOUS REASONS, we wholeheartedly support the FAA in their determination. Mirant's effort to end-run local and state officials has been met with a resounding 'no' from the federal government. It is time for Mirant to permanently shut down the plant," said Mayor William D. Euille.

Steven L. Arabia, director, External Affairs, Mirant Mid-Atlantic, disagreed with the city's interpretation of both the FAA determination and their rationale for Circuit Court intervention.

"The city has misrepresented the FAA determination as a final ruling. It is not. It's only one element of an ongoing process. We now have an opportunity to review these recommendations," Arabia said.

"We are also reviewing the city court filing at the present time and will be reacting to it in the near future. However, we find the city's modeling to be somewhat suspect. Either they are using selective data or misevaluating our fuel," he said.

"Our coal has a much less pollution factor than the city study has put forth. And, the restart of Unit 1 was under very limited conditions. The plant is operating at only 10 percent of capacity at the present time," Arabia stated.

A new private study on the effects of the restart of Unit 1 is being contemplated by Poul Hertel and Elizabeth Chimento, the duo that initiated the original downwash/air pollution investigation which triggered all subsequent actions.

They have recently made an appeal to raise $1,500 to have their consultant, Dave Sullivan, analyze the effects of the restart from a scientific perspective, as a means of protecting the interests of the neighborhood residents at the north end of Old Town.

Hertel and Chimento noted in their e-mail appeal for funds, "As the issues become more political and move more toward the Federal level, our health is more apt to be negotiated away for the sake of regionalism. The study ensures that the residents will have the information to protect their interest against powerful economic and political forces."

IN ITS RESPONSE to Mirant's request, the FAA stated, "Any height exceeding 164 feet above ground level will result in a substantial adverse effect and would warrant a Determination of Hazard to Air Navigation." However, they also suggested that if the stacks were reduced to 132 feet above ground level "it would not exceed obstruction standards."

Mirant's existing stacks are 164 feet high. The proposal to the FAA was to raise them to a height of 214 feet above ground level. One suggested solution to reducing or correcting the so-called "downwash" effect on nearby high-rise buildings is to increase stack height.

"The emissions from Mirant's coal plant are a hazard to our residents — and now they want to add an obstruction to air traffic in the region. Mirant is going in the wrong direction. This is an antiquated plant trying to outlive its usefulness. Instead of moving up, Mirant needs to be moving out," Euille said.

As for the new legal action, Euille said, "Mirant's excess and noxious emissions are harming the health of Alexandria residents — particularly the elderly, the young and the chronically ill. We have asked the court to put a stop to this and remove this nuisance from our community."

THE SUIT MAINTAINS, "the transport, handling and storage of coal and flyash at the Potomac River Generating Station site results in the mitigation of noxious, harmful and toxic dust and invisible particles that pose a health risk to the residents of the community and threatens the environment."

It further states, "Mirant and the PRGS have violated and continue to violate the common right of the community to a safe and healthy existence." For these reasons, and others elaborated in the filing, the city is seeking to shut down the plant as both a private and public nuisance.

"The act of emitting noxious, harmful and toxic substances into the air, water and ground beyond the PRGS's property line presents a serious threat to the health, as well as the property and aesthetic appeal, of the entire surrounding community, and is therefore a public nuisance ... Alexandria is empowered to bring an action [to] remove a public nuisance," according to the suit's language.