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City Objects To Mirant Amended Consent Decree

Actions by EPA and VADEQ are challenged as bowing to Mirant

With the expiration of the 30 day comment period, the City of Alexandria on June 26 registered its objection to the latest Amended Consent Decree negotiated between the U.S.Department of Justice and Mirant Potomac River, LLC, for the operation of the company's Potomac River Generating Station (PRGS)

In a letter addressed to Assistant Attorney General, Environmental and Natural Resources Division, U.S. Department of Justice, John B. Britton, of the law firm Schnader Harrison Segal & Lewis, acting as counsel for the City, specified seven objections to the proposed decree. They are:

1. Changed regulatory circumstances at PRGS require a modified settlement regime.

2. The amended decree imposes a disproportionate adverse impact on the residents of Alexandria.

3. The lack of daily emissions limits will adversely impact local air quality.

4. The amended decree fails to require National Ambient Air Quality Standards compliance for all criteria pollutants.

5. Boiler operations at the plant should be constantly monitored.

6. The decree fails to analyze the impact of the trona injection system which is an experimental procedure.

7. Supplemental environmental projects are inadequate.

Based on these objections, Alexandria has maintained "the Amended Consent Decree should not be approved in its current form." The agencies will now review any and all objections, make any modifications they agree with, and then take the negotiated decree to the Federal District Court for acceptance, rejection or modification, according to Britton.

"The Court has the power to accept the Amended Decree, require more changes, or reject it. However, no Court date has been set at this time," Britton said.

BUTTRESSING Britton's 15 page analysis were comments from Elizabeth Chimento, member, Mirant Community Monitoring Group, to the Virginia Air Pollution Control Board on June 21. Chimento, along with Poul Hertel, triggered the original investigation of the Mirant power plant located at the north end of Old Town.

In her testimony Chimento noted, "The VADEQ (Virginia Department of Environmental Quality) is currently in the process of drafting a State Operating Permit to the PRGS. It is with this document that Alexandria's residents, especially those living near the plant, expect the DEQ to protect their health."

Chimento raised five basic concerns with the Board about the impending DEQ operating permit primarily dealing with various air pollutants. She noted, "All criteria pollutants tested near the plant exceeded standards 5 to 15 times."

She placed particular emphasis on the plant's primary PM 2.5 pollutant. "These small particles, as the science community has advised for some time and the EPA has accepted, are the most injurious pollutant to public health," she stated.

"I ask you (the Board) to determine the proper vehicle to address the local primary PM 2.5 particle emissions, so damaging to nearby residents' health and grossly excessive of air quality standards, so that the VADEQ will, in fact, truly protect Alexandrians' health."

ON JUNE 12 U.S. Representative James P. Moran (D-8) sent a letter to Stephen L. Johnson, administrator, EPA, chastising the agency for issuing its June 2 administrative order to PRGS authorizing continued and escalated operations based on a perceived need for power reliability.

"There is no compelling reason why EPA should provide cover to what is clearly a power reliability issue. It is the Department of Energy's responsibility, not EPA's, to address any inadequacies that may result," Moran wrote.

"In carrying water on behalf of the Department of Energy, EPA has established a dangerous precedent that deviates from the Clean Air Act and EPA's own regulations on the standards by which to determine compliance with National Ambient Air Quality Standards," he said.

"I know of no instance where a power plant with a record of violations has been granted the flexibility to model compliance based on the following day's forecasted weather. Short term modeling based on predicted wind and stability conditions should never trump standard modeling practices for determining compliance," Moran insisted.

"I have grave concern about the ability of either EPA or the Virginia Department of Environmental Quality to monitor compliance for what clearly will be an extremely complicated procedure. Given Mirant's performance in bankruptcy proceeding at the NOx settlement, I have little confidence that it will voluntarily operate within the boundaries of the new administrative order," Moran said.

That lack of confidence was echoed by Britton in his introductory analysis of the Consent Decree. "Alexandria's primary interests are the adverse public health and environmental impacts on Alexandria and its residents due to emissions from and activities at the PRGS, and (within the region, to avoid a disproportionate adverse impact on Alexandria from such emissions and activities. The Amended Consent Decree does not satisfy these interests and fails to adequately protect the public health," he wrote.

Due to a variety of changes in circumstances since the original Consent Decree was proposed, Britton concludes, "The proposed Amended Consent Decree will not provide adequate protection to Alexandria and its residents from the PRGS."