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City Stalls Mirant

VDEQ chastised for reversal of its own recommendation.

Mirant Corporation's efforts to move forward with a planned stack merge at its Potomac River Generating Station has been put on hold by the State.

After a two-hour meeting Monday morning between Alexandria City and Commonwealth officials in Richmond, City officials were informed "DEQ has decided not to issue a decision on the proposed stack merger [Monday], as the agency originally intended, and it is continuing to review the issues raised by the City," according tp City Attorney Ignacio Pessoa .

The meeting was called after DEQ informed Alexandria officials on June 19 that they were "strongly leaning toward" reversing the May 23 decision of the State Air Pollution Control Board requiring Mirant to acquire a State Operating Permit prior to initiating a stack merge. Previously, DEQ had determined such a permit was required under the Federal Clean Air Act.

In addition to Pessoa, those attending included Attorney John Britton, outside counsel to the City; William Skrabek, chief, Environmental Quality, Alexandria Transportation & Environmental Services Administration; Mark Rubin, senior advisor and deputy counsel to Governor Timothy Kaine; David Paylor, director, Virginia Department of Environmental Quality (DEQ); and Carl Josephson and Roger Chafee, representing the State Attorney General's Office.

Prior to the meeting a seven-page letter drafted by Pessoa, Britton, and Alexander M. Macaulay, a second outside counsel to the City, was sent to Rubin. It spelled out the primary reasons why DEQ should not move forward with authorizing the stack merge sans permit.

The letter based the City's rationale on three primary assertions:

1. On Sept. 25, 2006 the Air Board "asserted direct authority over all permitting decisions for this plant, including specifically "that the Board make the ultimate determination about whether the new source review permit" at issue was required."

2. DEQ's own records "overwhelmingly demonstrates" the stack merge "impacts the entire combustion-to-exhaust process at the plant, and will result in a net increase in emissions as defined in the regulations."

3. VDEQ "has abused its discretion, and arguably betrayed the public trust, by the precipitous and secretive manner in which it has chosen to proceed."

BASED ON THESE POINTS, the letter notes that "the only credible explanation for the stack merge project is to increase the plant's operations and therefore its emissions. Mirant intends to gain credit for dispersion thereby allowing Mirant to increase loads and emissions before the issuance of a comprehensive State Operating Permit" this fall.

Basically, the stack merge will elevate emissions and thereby reduce the so-called "downwash" on nearby buildings, such as Marina Towers. However, that elevation will also allegedly disburse emissions throughout the region, both in Virginia and Maryland.

In challenging the credibility of VDEQ, the three attorneys alerted Rubin that "VDEQ's stated basis for its about-face [on the need for a permit] is a report by Storm Technologies, Inc., a consultant for Mirant. The Storm report is a limited, superficial and biased analysis that purports to determine the impact on plant capacity of the stack merge project."

They also pointed out to Rubin, "The Storm report fails to analyze the basic data necessary to make any credible engineering determination concerning plant capacity as a result of the stack merge project." And, "The Storm report fails to account for concurrent emissions increases at the plant."

In questioning Storm Technologies conclusions, Pessoa recently circulated a publication produced by that Albemarle, N.C., firm titled "The Four E's — Energy, Environmental, Economics, Education." In that document there is the following statement:

"The federal EPA has been waging war on coal burning electric utility plants, and are working diligently to provide an image of coal fired power plants associated with the same undesirability of guns and tobacco. This disinformation and public response to the government regulations has made an economic climate unfavorable for electric utilities to obtain permits to build new coal-fired power plants."

JUST OVER nine weeks before the Air Board made its decision that a state operating permit would be necessary, VDEQ submitted to the Board an engineering analysis supporting the need for such a permit, according to the Rubin letter.

"The City and residents justifiably relied on the [VDEQ’s] oft published determination that, in VDEQ's best professional judgement, the stack merge required a permit. For the agency, with three days notice to the City, and no public notice, to attempt to reverse its position, and circumvent the ongoing process, epitomizes abuse of discretion, and arbitrary and capricious action," according to the letter.

Noting that the Air Board "had repeatedly refused to accept Mirant's permit analysis" the attorneys found VDEQ's willingness "to unilaterally accept Mirant's deficient analysis" as nothing other than "willful contempt for the Board and its promise to the City and its residents."