(SAN JUAN, Puerto Rico – October 20, 2016) The recent comments of an EPA spokesperson are just another attempt to “pass the buck”, and avoid taking responsibility for the agency’s ultimate authority to enforce federal rules over Puerto Rico’s toxic landfills. The EPA also falsely claimed they do not inspect landfills in Puerto Rico.
The EPA has full overarching oversight authority of RCRA Subtitle D. The EPA has to review any state regulatory programs to determine if they are adequate, and has authority to take any action necessary to protect human health and the environment under Section 7003 of the Resource Conservation and Recovery Act (“RCRA Section 7003”).
The EPA has exceedingly broad authority under RCRA Section 7003, to issue unilateral orders, orders on consent, or to seek judicial decrees to abate conditions that “may present an imminent and substantial endangerment to health or the environment”. According to information provided in EPA orders and consent orders, the EPA has made many inspections of Puerto Rican landfills leading up to the decision to issue orders.
Now the EPA is hiding behind the simple fact that that they delegated RCRA authority to Puerto Rico’s Environmental Quality Board (“PR EQB”) to regulate landfills. But their latest comments failed to add that the EPA has the duty to make sure that the EQB’s program remains adequate, and in the case of Puerto Rico they have been derelict in that duty. Federal regulations require any state or territory that modifies its landfill safety requirements to notify the EPA to review the modifications to make sure that they are consistent with federal law, and authorizes EPA to revoke a program that is inadequate. The EPA has known since 2005 that the PR EQB modified their regulations, cut back on all enforcement personnel for inspections, and was no longer running an adequate program of compliance.
The EPA continues to have full authority under Section 7003, and contrary to the spokesperson’s comments, would have authority to enforce federal standards at Puerto Rico’s landfills should they revoke the PR EQB program authority. According to an EPA report, “PR Landfill Initiative Report, dated 12/04/2008”: “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”. The EPA’s reference to the lack of permitting authority, according to this same report, is in reference to the ability to permit new landfills, or expansions of existing landfills, and also acknowledges that the EPA could issue specific rules to address this problem.
The EPA has taken no meaningful action to enforce its own rules. Despite admitting in internal documents for over a decade that most of Puerto Rico’s landfills pose a danger to the public and must be closed, almost none have actually closed, and the EPA has not used its full authority to close them.
Rather than citing obscure and misleading legal arguments to evade its duty to enforce federal rules over landfills, the EPA should be actively working to close the toxic landfills and protect the health and safety of Puerto Ricans.