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Mirant Sues Over Air Board Decision

State becomes a defendant in the Mirant Alexandria dispute.

Late last Friday afternoon, Mirant Corporation announced that on Thursday, May 31, they had filed suit in the Circuit Court of Richmond, against the Virginia State Air Pollution Control Board, just one week after that Board completed its public hearing and meeting in Alexandria.

Mirant's rationale for their action accused the Board of "unlawfully directing the Virginia Department of Environmental Quality (DEQ) to issue a temporary State Operating Permit for the operation of Mirant's Potomac River Generating Station that is outside the Board's authority, arbitrary and capricious, not supported by the record, and in violation of due process."

By suing the Board, Mirant in effect is suing the Commonwealth of Virginia. State Attorney General Robert McDonnell, who serves as legal counsel for DEQ and, consequently, the Air Board, and David K. Paylor, director, DEQ, were named as appellee counsel and appellee.

The Board's action, taken at its May 23 meeting at the Holiday Inn on Eisenhower Avenue, to which Mirant takes exception was adopted on a three to two vote. Following that vote, Mirant representatives attending that Board meeting left the site.

"It is clear that the three members of the Air Board who voted to order DEQ to issue this temporary permit based their decision on their own personal bias against coal-burning power plants and made an unlawful attempt to delegate the City of Alexandria the state's authority over air quality," said Robert Driscoll, CEO, Mirant Mid-Atlantic.

"The Board did not rely on the facts and the record that they are supposed to assess. They did not apply the laws and regulations that they are charged to uphold," he said.

"The majority members of the Air Board gave Mirant no choice but to seek a legal remedy for reasonable, lawful environmental standards to operate the Potomac River plant. DEQ is the agency with the expertise," Driscoll said.

"DEQ and Mirant agreed on a Consent Order that set emissions well under those required by law but that still allowed the plant to operate. DEQ stated repeatedly at the hearings before the Air Board that the Consent Order it proposed was more protective of the environment and public health than the temporary permit the Board ordered DEQ to issue. The Air Board, which has no technical expertise, arbitrarily rejected the views of the state's own experts and instead told them what to do," Driscoll stated in the company's press release.

REACTIONS from City officials, spokespersons, and local activists was one of non-surprise. "This is not surprising given the speed at which the Mirant representatives left the hearing. They are hoping to cause sufficient delay to ensure that the air board does not have time to get to the comprehensive permit before they are disbanded," said Poul Hertel, one of the primary activists, along with Elizabeth Chimento, to get the plant closed.

The most recent session of the Virginia General Assembly passed legislation to abolish three citizen environmental issues boards and combine their authority into a single Environmental Board that would have only advisory authority. All regulatory abilities would go directly to DEQ.

However, that reorganization cannot take place unless the legislation is again authorized by the 2008 General Assembly. Elimination of the boards is backed by Gov. Timothy Kaine (D) who allowed the 2007 bills to become law without his signature once the legislation was sent to him that included clauses calling for a second vote in 2008.

"The proposal Mirant wanted had two major deficiencies. First, the baseline year for Sulphur Dioxide was ridiculously high. Second, it allowed them to circumvent procedures regarding the smokestack mergers. Profitability still rules their actions, irrespective of the adverse health effects on the surrounding residents," Hertel said.

"For over seven years we have been given a song and dance routine and this latest effort is nothing new. Unfortunately, many people continue paying the price with their health," he said.

Hertel's thoughts were echoed by Chimento who, when she first heard of the suit last Friday, said "I was waiting for [Mirant] to do something. You could tell they were really mad when they left the Board meeting," she said.

"I think the Board made the right decision. The state operating permit is more protective of public health than the proposed consent order," Chimento said.

"The City looked at all the issues at the time of the hearing and prior to our testimony. We believe the Board was well within its authority to protect the health of the citizens of Alexandria. We'll have to look at the suit more carefully before we decide on a course of action," said City Attorney Ignacio Pessoa.

"They are going to stretch this thing as far as they can to try and prove the City wrong. I thought the public hearing was very representative," said Alexandria Mayor William D. Euille.

John Britton, outside counsel to the City on Mirant and its Potomac River Generating Station, noted that Mirant's suit failed to say anything about the testimony from Pepco and U.S. Environmental Protection Agency at the Air Board hearing. "Both said that once the Pepco transmission lines are complete they are through with this," Britton pointed out.

"This whole suit gives a very dangerous impression to the Court. They accuse the City of trying to make a land grab of the Mirant property. There is absolutely no clandestine agenda to make a land grab," Britton insisted.

Mirant's suit does state the City of Alexandria has "its own designs on the property on which the plant is located" and "the City adopted a goal of shutting down this plant." They also refer to a decision by the Virginia Supreme Court "holding that the Plant had a vested right to operate at this location."

As for both the Governor's office and that of the Attorney General, neither would comment on the suit, stating they do not comment on pending litigation. In the final analysis, the Mirant suit asks the Court to:

1. Find that "the Board acted unlawfully in directing the DEQ Director not to issue the Consent Order and ordering DEQ Director to issue a permit to Mirant."

2."Set aside the Board's decision" send it back to the Board "for further proceedings consistent with applicable laws and regulations."

3. Stay "the enforcement or implementation of the Board's directive and of some or all of any permit issued because of that directive."

The next move is up to the State Attorney General to respond to the Mirant action. As for Alexandria, discussions will now take place as to the City's legal procedural options, according to both Pessoa and Britton.