Mirant skyline photo in Alexandria perm pix
<ro>"The letter did not say the Governor would back the reenactment clause one way or the other."
<ro1>— Bernard Caton, legislative director, City of Alexandria
<hd>Kaine Responds To Mirant Concerns
<sh>Local citizen leaders remain skeptical of Governor's motives
<1b>By Chuck Hagee
<bt>Gov. Timothy M. Kaine has responded to the concerns of Alexandria leaders and citizens concerning legislation, now before the General Assembly, that proposes to eliminate three citizen environmental oversight boards, with decision making powers, in favor of placing those responsibilities with the Department of Environmental Quality. But, his response was viewed with less than enthusiasm.
In a Feb. 12 four paragraph letter to Alexandria Mayor William D. Euille, Kaine stated, "If the legislature sends either of these bills to my desk, and you believe that this legislation is likely to affect the permit for the Mirant Potomac River Generating Station, please let me know." Euille's efforts by letter and during a personal trip to Richmond seeking to delay the enactment of either SB 1403 or HB 3113 seems to have already made that point.
Both bills call for the elimination of the State Water Control Board, State Air Pollution Control Board, and Virginia Waste Management Board. The powers of all three would be concentrated in the State Department of Environmental Quality under the direct control of the DEQ Director.
Replacing the three existing Board would be a new Board of Environmental Quality. This new entity would not have any authority to review, approve, or deny permits. It would be limited to adopting general regulations.
"Administration officials have worked with the legislative sponsors and environmental stakeholder groups to improve the legislation. Amendments have been adopted to enhance public participation in Department of Environmental Quality permit related activities to improve transparency in decision making," Kaine stated.
"At my insistence, amendments also have been adopted to create an Appeals Board, which will conduct hearings per the well-established Administrative Process Act whenever a DEQ-issued permit has been appropriately challenged. I support the amendment adopted by the House that makes the Appeals Board's decisions binding," he further stated.
"As to your specific concerns over the proposed legislation as it may relate to the Mirant Potomac River Generating Station, it is my understanding that the Air Pollution Control Board is scheduled to complete its consideration of permitting issues for the Mirant plant in June of this year... the earliest this legislation could become law under either version (House or Senate) is July 1," Kaine wrote.
In addition to opposing the elimination of the Air Pollution Control Board, Alexandria's position to the legislation is that both bills should include a "reenactment clause" which would require that nothing in the bills would become effective unless reintroduced and passed by next year's General Assembly. It is believed that would allow the Air Pollution Control Board to complete its permitting of the Mirant plant.
Nowhere in his response did Kaine make any reference to the reenactment clause. Rather he relied on the belief that the Air Control Board would complete its work by June 30. However, as of this week both the Senate and House versions contain the reenactment clause amendment.
"The letter did not say the Governor would back the reenactment clause one way or the other. And, I haven't heard any administrative aide to him or DEQ say so either," said Bernard Caton, Alexandria's legislative director in a phone call from Richmond.
"If the reenactment clause that is now in both bills stays in following the conference committee deliberations that will answer [Alexandria's] concerns. The Air Board should remain in place until the Mirant problem is solved. There is no guarantee that will happen by June," Caton said.
In addition to the reenactment clause there are other amendments under consideration including making decisions of the Appeals Board "binding" and requiring that members of the new 11-member Virginia Board of Environmental Quality "would collectively hold knowledge/expertise in air, water and waste issues," according to Kevin Hall, press secretary to Kaine.
KAINE'S RESPONSE is not sitting well with those that see this entire so-called consolidation proposal no more than an end run around keeping Mirant's Potomac River Generating Station from under the watchful eyes of Alexandria's elected leaders and concerned citizens.
"The Governor's position has not changed in his Feb. 12 letter to the Mayor. He continues to support the companion bills eliminating the citizen environmental boards," said Elizabeth Chimento, co-leader, along with Poul Hertel, of the ongoing fight to close the North Old Town PRGS.
"I only support the two bills with the reenactment clause in them which postpones all action until the 2008 General Assembly session. This clause would leave the Boards in place until next year which would give time for the Air Board to write the permit for the Mirant plant and complete a New Source Review analysis of the facility," she said.
"After years of dealing with DEQ regarding the power plant, [DEQ’s] response has been constant delay, inaction and confusion. However, in distinct contrast, the Air Board is taking proactive steps to protect Alexandrians' health against this polluting facility," Chimento stated.
Her evaluation of DEQ's apparent predisposition toward Alexandria's efforts to close the 50-year-old coal-fired facility seemed to be buttressed by a response she received from State Secretary of Natural Resources L. Preston Bryant to her letter to Kaine regarding SB1403 and HB3113.
"You obviously have very strong feelings about the Mirant plant, and I am well aware of how much time and effort you have put into Mirant-related issues. But in regard to your comments about the DEQ's handling of this matter, I can only respond by saying that I am certain that David Paylor and his staff are doing the absolute best that they can. I do not agree with your conclusion that the health of the citizens of Alexandria is not being protected," Bryant wrote in part to Chimento.
Equally critical of Kaine's response was Poul Hertel. "It is very disappointing to see how little regard to scientific integrity is actually talked about. Public gets to comment is vastly different from a board exercising oversight," he pointed out.
"Until Elizabeth and I presented the downwash study, the DEQ had no intention of pursuing it, even though a high level official in DEQ told me, ‘we knew it was there we just did not check for it.’ The DEQ is charged with ensuring the health of Virginia residents and so far I have seen rationalization of the most skewed arguments to make the case for the plant. Arguments that just are not scientific," Hertel said.
"We citizens can keep pointing this out, but only an oversight board can have influence, and set the science and health above political considerations. Obviously, having the science and law on your side is not enough. For a long time, officials were aware of the problems created by Mirant's short smoke stacks and the dangerous effects of the direct downwash into adjacent neighborhoods," he said.
"Yet here we are today, with the laws being changed to provide easier access for the harm to continue. That's both sad and tragic," Hertel stated.
Even though both bills now contain the reenactment amendment, there is still concern that it could be stripped either in conference committee or by the Governor. Therefore, the Southern Environmental Law Center is urging continued pressure on both the Governor and state legislators in both chambers.
"The fight is not over, so keep up the pressure on Senators, Delegates, and especially the Governor," Cale Jaffe, staff attorney, Southern Environmental Law Center, wrote to Chimento.
He also is urging Law Center constituents to send the following message to legislators and the Governor:
"HB3113 and SB1403 seek to reform Virginia's processes for managing our Natural Resources. But to date, the general public has been kept out of the discussion. I urge you to let the public's voice be heard.
"A Re-enactment Clause in the ONLY way to provide all sides with a seat at the table. Don't stonewall average citizens — give us a voice in the process.
"If the public is to have confidence in the final result, then the public needs to be engaged. Let's make environmental reform work for everyone. A re-enactment clause is the only way to accomplish this essential goal."