Cities Lose Challenge to Coal-Ash Dumping in Puerto Rico

After the containment dike for coal fly ash failed in December 2008 at a power plant in Kingston, Tennessee, a wave of water and ash choked the Emory River, disrupted electrical power, ruptured a gas line, covered a railway, and necessitated the evacuation of a nearby neighborhood. The ensuing response by the Environmental Protection Agency, Tennessee Valley Authority, and state and local agencies took six years. (Photo by the EPA via Courthouse News Service.)

BOSTON (CN) – The First Circuit handed defeat Tuesday to two Puerto Rican cities that tried to override one local power plant’s permission from the state to dump coal ash at public landfills.

Generating about 200,000 to 250,000 tons of coal waste a year, the coal plant AES-Puerto Rico operates in Guyama is responsible for about 15 percent of the power generated in Puerto Rico.

The ash is reused in construction projects as filler material, and it is also sold to waste dumps, which are required to cover the trash with at least layer of earthen material at least 6 inches thick to prevent any hazardous material from blowing out of the pile and into surrounding areas.

Of the three dumps that receive ash from AES, two are in Penuelas and one in Humacao. Though the Puerto Rico Environmental Quality Board approved the dumping in 2015, both Penuelas and Humacao had passed ordinances barring the practice two years earlier.

“The deposit of ashes as landfill creates toxic substances situations blown by the wind and breathed by its inhabitants, which would entail the suffering of breathing ailments, possible birth defects and a high percentage in the pollution of surface and subterranean water due to the runoff of rain and leaching to the aquifers,” Humacao’s ordinance says.

Fueled by health and environmental concerns, protests of coal dumping have been rampant of late in Puerto Rico. Just this past November, an activist group reported that 62 of its supporters were arrested while attempting to block dump trucks from delivering the coal ash to the Penuelas Valley Landfill.

The First Circuit’s ruling Tuesday means that the dumping will likely continue.

“After careful review, we conclude that the local ordinances may not be enforced to the extent they directly conflict with commonwealth law as promulgated by the Puerto Rico Environmental Quality Board,” U.S. Circuit Judge Kermi Lipez said, writing for a three-judge panel of the court in Boston.

Coal-ash spills in Kingston, Tennessee, and Eden, North Carolina, prompted major cleanup operations by the U.S. Environmental Protection Agency to in 2008 and 2014, respectively.