Compromise Preserves Board's Permitting Clout
Panel Overseeing Air Pollution Urged Scrutiny of Power Plant in Alexandria

By Kirstin Downey
Washington Post Staff Writer
Thursday, March 20, 2008; VA03

After weeks of intensive lobbying and negotiations, environmentalists and industry officials have hammered out a compromise on a bill that would have stripped permitting power from the Virginia Air Pollution Control Board.

The citizen panel oversees regulations that affect the control and reduction of air pollution. The board has urged stronger scrutiny of the Mirant power plant in Alexandria.

The aging, coal-fired plant provides electricity to hundreds of thousands of homes in the District and Maryland and also affects Northern Virginia residents because it fouls the air. Alexandria officials said they think pollutants emitted from the plant are giving residents respiratory ailments, and they have applauded the air board's role in the debate.

The compromise was a victory for Alexandria officials, who had asked state environmental agencies to impose restrictions on the Mirant plant, on the Potomac River north of Old Town.

"I'm pleased to report we won that fight," said Del. David L. Englin (D-Alexandria), who had called stopping the original measure his top legislative priority.

He said the final outcome turned the bill on its head but gave industry leaders enough of what they wanted that in the end they accepted the transformation.

"We're very pleased with how it turned out," said David Anderson, a spokesman for the Virginia Chamber of Commerce. "All sides came together to agree on reforms that would make the process more predictable, efficient and rational."

The transformed bill passed the House and the Senate last month with unanimous support.

The original bill, strongly supported by business interests in the state, would have gutted the authority of three citizen boards -- the Air Pollution Control Board, the Water Control Board and the Waste Management Board -- and vested all responsibility for their permitting decisions in the state Department of Environmental Quality.

The new bill retains the boards and preserves their power to issue or deny permits, but gives them 90 days to take action. It also requires them to document the reasons for their decisions. The number of members on the air pollution board was expanded from five to seven, which both sides said will provide a further opportunity to influence decisions.

The new legislation is a "positive outcome," said Debra Raggio Bolton, Mirant Mid-Atlantic's vice president and general counsel, noting that the company supported the decision to expand the air board to seven members.

The final bill also would strengthen financial conflict-of-interest rules for board members.

The original bill, proposed by Del. R. Steven Landes (R-Augusta) and backed by state business groups, including the Chamber of Commerce and Mirant, had drawn protests from Alexandria officials and environmental groups statewide.

More than 100 people attended a hearing of the Air Pollution Control Board in Alexandria in January, underscoring their support for the board. A week later, about 120 attended a forum hosted by Rep. James P. Moran Jr. (D-Va.), the Chesapeake Climate Action Network and the Sierra Club. Participants were urged to contact their state legislators to protest the bill.

Alexandria officials had strongly opposed what they viewed as the emasculation of the air pollution board. They said the Department of Environmental Quality had become a captive of industry, particularly of power companies, and they have endorsed the Air Pollution Control Board's actions in scrutinizing a pollution permit sought by Mirant for its Alexandria plant.

"The Department of Environmental Quality has a history of favoring Mirant," said Alexandria Vice Mayor Redella S. "Del" Pepper (D). "The regulators are too close to the regulated."

That view was shared by environmentalists across the state, who deluged elected representatives in both parties with messages opposing the original bill.

"This issue galvanized the conservation community in a way I haven't seen in a long time," said Catharine Gilliam, Virginia program manager for the National Parks Conservation Association.

A similar measure to strip power from the citizen boards passed the General Assembly last year, with support from Gov. Timothy M. Kaine (D). Opponents added a clause requiring the measure to win legislative approval again this year to become law, and the new bill was reintroduced with minor word changes to make it easier to pass this year. It appeared to be moving quickly toward passage before the environmentalists and Alexandria residents began lobbying against it.

Under Republican governors, the boards' members tended to be industry officials. But the boards' memberships have changed as a result of appointments by Democratic governors Mark R. Warner and Kaine.

Many board members now hold strong pro-environmental views, including Bruce Buckheit, the Environmental Protection Agency's former head of air pollution enforcement, who resigned from the federal government over his disagreement with actions taken by the Bush administration to weaken environmental enforcement. Buckheit, now retired, serves on the Air Pollution Control Board, as does Vivian Thomson, an assistant professor at the University of Virginia who teaches about environmental politics.

The three boards have not prevented any projects from going forward, but they have delayed some permits and asked questions about potential environmental impacts.

In December 2006, the city of Newport News clashed with the water board over access to the water from a proposed reservoir on the scenic Mattaponi River in King William County. The Mattaponi Indians, descendants of Chief Powhatan, oppose the reservoir, which they say would destroy tribal lands. Fast-growing Newport News said it needed the water. The water board ruled against the city but reversed itself, and the Department of Environmental Quality granted the permit.

Similarly, the Air Pollution Control Board has had several public hearings to scrutinize the operating permit at the Mirant plant in Alexandria.

The boards are trying to toughen environmental regulation in a business-friendly state. The state Chamber of Commerce had come to consider the boards an economic threat. Last summer, Chamber of Commerce President Hugh Keogh asked businesses in the state to contribute $5,000 each to support the effort.

"The bill is designed to provide for greater professionalism and accountability together with a more rational decision-making process," he wrote at that time.

The bill passed easily last year, but by last month, the balance of power had shifted. Last year, the General Assembly was dominated by Republicans; this year, the state Senate is controlled by Democrats. Sen. Patricia S. Ticer (D-Alexandria), new chairman of the Senate Committee on Agriculture, Conservation and Natural Resources, presided over hearings on the bill.

"She was there fighting for us," Pepper said.

Englin also had been strongly opposed to the original bill.

"It's a terrible idea to create an environmental czar, vesting all the authority in one person and stripping the community of the ability to play a role in controversial environmental permitting issues that affect their health and safety," he said. "My experience with that agency is that where they have an opportunity to exercise discretion, they do it in favor of industry, not in favor of environmental quality."

Anderson, of the Chamber of Commerce, disagreed, saying it was "very unjust" to characterize the Department of Environmental Quality in that way.

"The DEQ is not a pushover to industry," he said.

Englin said the final bill ended up being a good piece of environmental legislation.

"It's a good outcome for Alexandria and a good outcome for the state," he said. "It means communities can continue to play a role in controversial environmental permitting decisions that affect them."