II. GROSS MALFEASANCE OF THE EQB, DOCUMENTED BY EPA

Puerto Rico’s Failed 1994 Plan

In 1994, the EPA reviewed an application for the permitting and enforcement authority for Puerto Rico’s landfills to the EQB Puerto Rico Environmental Quality Board (EQB). To grant that authority, EPA was required to review Puerto Rico’s proposed oversight, permitting and enforcement plans to determine that they were adequate.

PR_Paper_Photos_01On paper, the EQB’s application appeared thorough and in line with the letter and spirit of RCRA, Subtitle D.  Puerto Rico had 61 operating landfills at the time, and committed to permanently close 31 facilities: “Twenty-nine municipal SLFs (Plus 1 private facility) will be subject to the regulation after April 9, 1993 (29 municipals and 1 private). Of these facilities, approximately 19 are scheduled for eventual closure over a 5 to 7-year transition period. …. All existing facilities, including those schedule for eventual closure, will be permitted under the Regulation and subject to the Part 258 technical requirements. After this transition is complete, approximately 11 regional facilities will continue to serve the Commonwealth.”

But the plan never left the paper it was written on.  A review of internal memos written by EPA Region 2 enforcement officers from 2005 to 2014, which assess the situation of landfill enforcement in Puerto Rico, show that the EQB never carried out its plan, nor did it achieve the minimal amount of enforcement that should be tolerated by the EPA under RCRA.  The assessments are so bad and unchanging that the officers resorted to repeating the same dire overview in the opening section of every document for nine years.

From the 2005 assessment, by enforcement officer Carl Plossl“Many operating landfills in Puerto Rico have been in significant non-compliance with Federal and Commonwealth solid waste landfill regulations for over 10 years and are considered open dumps that present an ongoing risk to human health and the environment. The Solid Waste Management Authority (SWMA) and the Environmental Quality Board (EQB) have not been effective in correcting this non-compliance. (…) Although approximately 30 open dumps have been closed in the last 15 years, the remaining 29 operating municipal solid waste landfills are still in significant noncompliance with both the Commonwealth and Federal Solid Waste Landfill regulations, and there has been no apparent effort made by the Government of Puerto Rico to implement the August 10, 1993 Solid Waste Management Plan.”

From the 2006 assessment, by Plossl and Adolph Everett: “Most operating landfills in Puerto Rico have been in significant non-compliance with Federal and Commonwealth solid waste landfill regulations for over 11 years and are considered open dumps that present an ongoing risk to human health and the environment.  The Solid Waste Management Authority (SWMA) and the Environmental Quality Board (EQB) have not been effective in correcting this non-compliance.”

From the 2008 assessment, by Plossl, Philip Flax and Kimiko Link: “Most operating landfills in Puerto Rico have been in significant non-compliance with Federal and Commonwealth solid waste landfill regulations for over 12 years and are considered open dumps that present an ongoing risk to human health and the environment. The Solid Waste Management Authority (SWMA) and the Environmental Quality Board (EQB) have not been effective in correcting this non-compliance from a planning perspective (SWMA-lead) or a program implementation perspective (EQB-lead). In part, this has been attributable to the lack of an integrated Solid Waste Management Plan.”

From the 2010 assessment, by Everett and George Meyer: “Many of Puerto Rico’s landfills are near capacity, most are out of compliance with federal RCRA and CAA standards, and present an imminent and substantial threat to human health and the environment. Minimal recycling is performed. Although the Puerto Rico Environmental Quality Board (EQB) is approved to implement permitting and enforcement within the RCRA solid waste program, EQB has failed to do so. Likewise, the Puerto Rico Solid Waste Management Authority has not implemented any of the solid waste management plans proposed over the last 15 to 20 years.”

From the 2011 assessment, by Everett and Meyer: “Many of Puerto Rico’s landfills are near capacity, most are out of compliance with federal RCRA and CAA standards, and present an imminent and substantial threat to human health and the environment.  Minimal recycling is performed.  Although the Puerto Rico Environmental Quality Board (EQB) is approved to implement permitting and enforcement within the RCRA solid waste program, EQB has failed to do so.  Likewise, the Puerto Rico Solid Waste Management Authority has not implemented any of the solid waste management plans proposed over the last 15 to 20 years.”

From the 2012 assessment, again by Everett and Meyer: “The majority of Puerto Rico’s landfills are past or near capacity and may present an imminent and substantial threat to human health and the environment. Minimal municipal solid waste recycling programs are in place. Although the Puerto Rico Environmental Quality Board (EQB) is approved to implement permitting and enforcement within the RCRA solid waste program, EQB has largely not addressed non-compliant landfills via enforcement actions. Similarly, the Puerto Rico Solid Waste Management Authority has not implemented any of the solid waste management plans proposed over the last 15 to 20 years.”

From the 2013 assessment, by Meyer: “The majority of Puerto Rico’s landfills are past or near capacity and may present an imminent and substantial threat to human health and the environment. Minimal municipal solid waste recycling programs are in place. Although the Puerto Rico Environmental Quality Board (EQB) is approved to implement permitting and enforcement within the RCRA solid waste program, EQB has largely not addressed non-compliant landfills via enforcement actions. Similarly, the Puerto Rico Solid Waste Management Authority has not implemented any of the solid waste management plans proposed over the last 15 to 20 years.”

From the 2014 assessment, by Leonard Voo and Judy Mitchell: “The majority of Puerto Rico’s landfills are past or near capacity, are out of compliance with operating criteria, and may present an imminent and substantial threat to human health and the environment.”

EQB Guts Safety Rules

The issue of regulatory non-compliance is not just confined to the side of enforcement.  In 1997, it crossed a new line into willful gutting of basic rules by the authorities themselves.  That year, the Puerto Rican government amended the regulations approved by EPA in the permitting process. This change was done without notifying EPA, in violation of federal regulations, and was not noticed by EPA until 2005.

The changes in the regulations would exempt municipalities from financial assurance compliance, and allow new horizontal expansions to occur outside of the original boundaries of the landfill area and exempt them from liner and leachate collection requirements.  It was a wholesale gutting of safety rules for landfills, and violated the EQB’s duty to enforce federal standards.

An internal EPA email reveals that the EPA discovered this violation of federal law almost a decade afterwards, in June 2005.  The email is part of a thread among a group of enforcement staff at EPA Region 2 who are discussing “lateral expansion of the Toa Baja open dump” (a landfill that is still operating today).  In it, one official informs the group that “we have checked the current (our translation) vs. originally submitted EQB regulations regarding lateral expansion. (…) The original regulation, submitted as part of the program approval application, was written correctly but EQB has inappropriately revised it (…). This has island-wide major implications and needs to be corrected.

The files show that then-Region 2 administrator Alan Steinberg immediately got involved, and the initial responses go to the highest officials in Puerto Rico.  A subsequent November 30, 2005, internal email from the same EPA enforcement official, George Meyer, suggests the EQB had been confronted with the rule changes and denied it had happened.  The email includes a thread indicating that Steinberg (identified by the initials of his title, “RA”, in the email) had sent a letter to the Governor of Puerto Rico, setting out “milestones” for Puerto Rico to meet with EPA.  The first milestone read: “By November 30, 2005, officially notify EPA, in writing (in English), of all changes that have been made to the PR solid waste regulations since EPA approved PR’s Solid Waste Mgt. Program.” 

However, the email notes that in a meeting held by Steinberg in Puerto Rico, “EQB repeated its claim that no regulatory changes have been made, so it is not clear if a response will be forthcoming.”

In February 2006, Anibal Jose Torres, the chief of staff to then-Governor Anibal Acevedo Vila, responded to Steinberg in a letter which noted the request for an English translation of the EQB’s regulations as they stood, three months after Puerto Rico had been instructed to provide an analysis of the changes it had made.  Torres wrote that the translation would be received at EPA in March 2006, and EPA’s “comments” would be “evaluated”, but further documents show that the EQB didn’t reply until May of that year.  But what was finally sent to the EPA later proved that EQB had broken the law.

In a terse letter from Steinberg to Governor Acevedo Vila on October 5, 2006, Steinberg wrote that the agency received the English translation of EQB’s landfill regulations on May 10, but hadn’t received the analysis of any changes made along with an explanation that had been demanded for each change.  “EPA did not receive the Attorney General’s description of the changes, the rationale for the changes, the certification that the changes were in effect, nor the assurance that the regulations were accurately translated,” Steinberg wrote.  Despite this, the EPA had still found that the gutting of key federal standards had indeed taken place at the EQB:  “[W]e have noted a number of changes which are not consistent with federal requirements pursuant to 40 CFR Part 239 and Part 258.  These changes include the definition of lateral expansion and the applicability of financial assurance requirements which were highlighted previously.  We also noted a significant change to the definition of a composite liner.  These changes, along with others EPA has noted, may jeopardize Puerto Rico’s municipal solid waste landfill (MSWLF) permitting program approval status.”  In order to leave no more wiggle room for the EQB, Steinberg attached the original, EPA-approved 1993 Puerto Rico regulations in Spanish which met federal standards to compare to the gutted standards EQB was using.

Steinberg’s threat against the EQB’s authority after his staff discovered the gutting of landfill regulations was an appropriate measure to consider.   In the annual Puerto Rico landfill assessment written by EPA officials Carl Plossl, Philip Flax and Kimiko Link, from December 4, 2008, near the end of Steinberg’s term in office, such an action was found to be feasible for the Agency to take, and potential legal or statutory pitfalls with direct EPA intervention and enforcement could be addressed: “The consequences of failure to re-amend the regulations to be consistent with federal requirements could include withdrawal of program approval status which would result in EPA having direct enforcement authority for the 40 CFR Part 258 landfill requirements. However, EPA would not have permitting authority and consequently Puerto Rico would lose the flexibility afforded to approved states which allows construction of new landfills or expansion of existing ones in seismic zones (in which the entirety of Puerto Rico lies). However, EPA could possibly issue specific rules to accomplish this.”    Among the “options and recommendations” that the enforcement staff lists at the end of the document is, simply put: “Withdraw program approval.”

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