III. DERELICTION OF DUTY BY THE EPA

Alan Steinberg departed from his post of Regional Administrator during the transition between the Bush and Obama administrations.  While he’d been personally engaged in raising EQB’s gross malfeasance with Puerto Rico’s top officials, and had explicitly warned about revoking EQB’s enforcement authority, Steinberg never followed through on it.  The reasons for this are unclear.

Every year, EPA Region 2 was informed by its enforcement staff that Puerto Rico’s landfill system was in crisis, and that the EQB was not addressing it.  In every assessment, there was meticulous documentation on how the EQB was not carrying out the plan it submitted in 1994 to obtain EPA’s approval for its local enforcement authority.  In every assessment, the enforcement staff warned Region 2 that a majority of Puerto Rico’s landfills “present” or “may present” what is repeatedly described as “an imminent and substantial threat to human health and the environment” — the clear statutory trigger for EPA to intervene unilaterally.PR_Paper_Photos_05

But in the details of these internal assessments, it is revealed that only 2 open dumps have  been fully closed in Puerto Rico over the last decade: Aguadilla (2006) and Santa Isabela (2012). Currently, at least20 out of the remaining 27 landfill facilities are non-compliant with federal minimum standards, and in reviewing these internal assessments from 2005 onward, many of these facilities have never been compliant.  The main difference most of them have with their former selves is that they have since been greatly expanded without regard for federal standards and now generate a lot more money per month than they did in 1994.

The records prove that the vast majority of Puerto Rico’s landfills continually operate, year after year, in violation of federal rules.  Comparing the number of open dumps in relation to compliant sites over the two decades under EQB authority, the results are clear: the EPA has taken little action to carry out its federal duty to the American citizens living near those sites in Puerto Rico.  This represents a stunning dereliction of duty by EPA Region 2’s leadership.

While Steinberg was personally engaged on the matter, and raised the threat of appropriate EPA intervention, the documents show he didn’t act on it.  And the crisis was left to the next administration when he left the EPA in 2009.

In the transition, Acting Regional Administrator George Pavlou wrote to EQB chairman Pedro Nieves Miranda in August 2009.  Nieves Miranda had also taken over in a new administration on the island, under Governor Luis Fortuño.  The letter is a marker on how the EQB had still not corrected the gutting of landfill rules since no action had been taken over the course of three years: “I am writing to re-emphasize the need that the Environmental Quality Board (EQB) take the necessary steps to revise Puerto Rico’s solid waste regulations to be consistent with federal landfill criteria. (…)  In 1997, the EQB modified the EPA-approved 1993 version of the regulations without consulting EPA.  The modified regulations significantly weakened landfill controls and have rendered Puerto Rico’s regulations no longer consistent with the federal requirements.”

Pavlou detailed the extent to which the EQB had gutted the rules:  “The key changes that EQB made which are of concern to EPA include: removal of the requirement that a professional engineer certify satisfaction of closure and post-closure standards; unacceptable revision of the lateral expansion definition; weakening of the hydraulic conductivity standard for composite liners; removal of education and licensing requirements for personnel involved with hydrology and ground water monitoring; revision of the definition of an “existing solid waste facility”; and, elimination of financial assurance requirements for municipalities.”

Pavlou confirmed the inaction on both sides: “We have discussed this issue many times through previous correspondence and meetings with no resolution. (…) I would appreciate if you could make this a top priority.”

Nieves Miranda replied to Pavlou ten days later and was emphatic: “This is a priority of this administration’s regulatory agenda.”  The new EQB head wrote that he’d created a special committee to work on amendments to local rules and “our agenda includes a revision of all local regulations to assess their consistency with federal regulations and updating them.”  He promised a revision by December 2009.

But when Judith Enck takes over as President Obama’s Regional Administrator, the pressure on the EQB ceases.  A clear policy shift takes place at the top of Region 2, despite continued warnings from the enforcement staff.

The 2010 internal EPA assessment showed no concrete improvements in the overall condition of the landfill system from before Enck’s arrival, nor results on the gutting of EQB rules.  And it included something more active among the “options and recommendations”.  It read: “Consider withdrawal of program approval, which would enable EPA to enforce the federal RCRA landfill requirements directly.”

The internal EPA assessments in 2011 and 2012 noted that the EQB sent its proposed rule revisions in early 2010 to EPA, which the federal agency found to be largely acceptable.  But the effort on both sides ends there, according to the record.    Puerto Rico never adopts the proper landfill rules, and Enck never raises the issue.  The files show no evidence of Enck communicating with the Governor, or the EQB leadership, or pressuring them to act on the rules issue, or anything related to compliance.  The 2011 report repeats, in the “options and recommendations” section: “Consider withdrawal of program approval, which would enable EPA to enforce the federal RCRA landfill requirements directly.”

Then, in the 2012 assessment, the tone changes in the “options and recommendations” section: “As a delegated solid waste program, EQB must implement its solid waste permitting and compliance sections to meet its authorization obligations.”  This line is repeated in the 2013 and 2014 assessments from Region 2 staff.

In the most recently available landfill assessment document from September 3, 2014, the results are clear from the lack of action from Enck:  “A letter requesting that EQB adopt the proposed revisions was sent in January 2011. As of 2/10/14, the changes have not been officially adopted (through promulgation).  In recent discussions (…) EQB indicated that it was reviewing the regulation issue again to determine the next steps, which should include promulgating the necessary changes (Status:  unchanged as of 5/5/14).”

There was no record obtained through FOIA requests of any emails, letters or memos from Enck or mentioning Enck’s interest in pressuring EQB or any Puerto Rico official to carry out their responsibilities in protecting the health and environment of the island.  And there are no indications of Enck communicating with Puerto Rico’s governors, or the heads of the EQB, about the failure to promulgate the rules that EPA had demanded Puerto Rico revise.  It seems that by 2014, the issue was dropped.

The documents suggest a policy decision was made by Enck to back off from the EQB, despite the decades of documented illegality, chaos and failure to enforce minimal standards.  And this hands-off attitude towards the EQB has been greatly compounded by the ineffectiveness of the regulatory actions under RCRA § 7003 that Enck decided to take instead.

EPA has authority under RCRA § 7003 to take action on the handling, transportation, or storage of solid waste where it may present “imminent and substantial endangerment to health and the environment” to bring suit or issue orders. Under the construct of issuing orders, EPA can either issue a unilateral order (UO), or an administrative order of consent (AOC) depending on whether consent exists. Alternatively, the EPA can ask the Justice Department to proceed to sue to enjoin landfill activities, or if appropriate to sue for criminal penalties – often these proceedings end in a judicial consent decree.

The internal EPA reports on Puerto Rico’s landfills during Enck’s term in office from 2009 onward indicate both administrative and judicial orders in Puerto Rico have been spotty (only nine out of 20 or more non-compliant landfills are targeted for specific actions) and many were recorded as being disregarded by landfills. In in the more recent reports, these same facilities have been documented by the Region 2 enforcement staff as violating the Clean Air Act and the Clean Water Act.   

 The EPA’s most recent landfill assessment  summarized the level of non-compliance that existed in 1994, has continued unabated for twenty two years:

“The Environmental Quality Board (EQB), responsible for permitting and compliance of landfills in Puerto Rico, remains ineffective in its regulatory and enforcement role.  Many of the 29 operating landfills are not permitted, the majority are past or near capacity (62% past capacity), and years of enforcement actions by EQB have not resulted in significant improvements in compliance.  EPA has inspected operating landfills and found pervasive noncompliance.  Few of the landfills have liners or leachate controls, and several are located in karst terrain, exacerbating the risk of ground water contamination.

EQB substantively modified its solid waste management regulations in 1997 without notifying EPA as required.  EPA performed a comparison of the revised regulations against the 1993 regulations upon which Puerto Rico’s program approval was based.  Region 2 expressed its concerns about the regulatory changes and the potential jeopardy of Puerto Rico’s program approval status to EQB and the Puerto Rico Governor’s office numerous times since 2006.”

The 2014 EPA assessment also detailed the agency’s full knowledge of how the EQB had systematically eliminated central enforcement staff over many years:

“In addition, EQB has eliminated or left open all central solid waste compliance and permitting staff positions. In 2000, EQB employed 14 central solid waste compliance and permitting staff, by 2005, it had been reduced to 5 (with expanded responsibilities).  In 2010, staffing was reduced to 1. By 2012, EQB employed no central solid waste compliance and permitting staff.”

There is no record that has yet been located indicating that effective action had been taken to remedy the staffing situation, or by EPA to intervene directly as it has the authority to do.  And given the repeated internal acknowledgements from these newly obtained documents that the EPA has concluded for at least a decade that most of Puerto Rico’s landfills pose a substantial threat to the public, the EPA has a responsibility and a duty of care to provide equal protection under the law and specifically, under RCRA § 7003, to intervene urgently in Puerto Rico.  To date, the EPA has failed to do this.

This means that Puerto Rico’s landfill safety requirements have been non-compliant with federal standards for well over 15 years.  The EQB gutted its own rules without notifying EPA as required and was told 9 years later to change them back or lose its enforcement authority.  As of 2014 it had not completed the correction.  Repeated annual assessments to Region 2 leadership warned of the situation and even recommended direct intervention.  But EPA Region 2 under Judith Enck tinkered on the margins, sent letters and held meetings, issued orders or negotiated agreements with less than half the open dumps, most of which would be disobeyed.

Year after year, assessments issued by Enck’s enforcement staff described an island-wide system of mostly open dumps as the Puerto Rico government dragged its feet in correcting an illegal set of rule changes from almost two decades ago.  But unlike her predecessor, there is no record of Enck considering or discussing the revoking of EQB’s authority, reflecting a hands-off approach to a flagrantly chaotic enforcement situation in Puerto Rico.

What is not clear from years of internal EPA assessments is how high the chain of information has traveled.  But the documents clearly show that Region 2 Administrator Judith Enck has been aware of the depth and scale of the crisis, and the threat it has posed to human health and the environment, and has chosen not to use EPA’s full legal authority to protect vulnerable communities in Puerto Rico.

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