Coal ash: what the law prohibits and the $25,000-per-day fine

It is the prohibition on disposing of and accumulating coal ash in Puerto Rico. It has two rules worth not mixing up: one bans disposal — on roads, lands, landfills and bodies of water — without exception and expressly closing the “beneficial use” exit when the residual is not encapsulated; the other puts a one-hundred-eighty-day clock on deposit from the moment of production.

The prohibition reaches every natural or legal person within the territory of the Government of Puerto Rico. The reporting duties fall on every facility that generates coal combustion residuals.

• That it involve coal ash or coal combustion residuals: fly ash, bottom ash, boiler slag and flue gas desulfurization gypsum, including any mixture.Verified against the official source
• That the act occur within the territory of the Government of Puerto Rico.Verified against the official source

Information pending verification.

1. 1

   Step 1: The disposal ban does not allow unencapsulated “beneficial use”

   The article says it in two consecutive sentences: the disposal of coal ash “fly ash” or coal combustion residuals is prohibited on all roads, lands — including landfills and sanitary landfill systems — and bodies of water within the territory of the Government of Puerto Rico; and “this prohibition includes the use of non-encapsulated coal combustion residuals, regardless of whether it could be considered a beneficial use.” That second sentence closes the argument most often heard.

2. 2

   Step 2: The 180-day clock is a different thing

   The deposit of coal ash or coal combustion residuals within Puerto Rico’s territory is prohibited for a period longer than one hundred eighty (180) days from the moment of production. “Deposit” means accumulation and abandonment on the ground. It is a temporal rule, distinct from the absolute disposal ban.

3. 3

   Step 3: The exception is narrow: tanks and silos, encapsulated, and capped

   That prohibition and period do not apply to controlled storage in tanks and silos, for future disposal through the manufacture of cement, mortar, concrete and/or any other beneficial use, of encapsulated coal combustion residuals. And even so there is a cap: storage for future disposal through manufacture may not extend beyond one year. DRNA shall establish by regulation the other beneficial uses of encapsulated residuals, the particular circumstances for storage, waivers and any other requirement.

4. 4

   Step 4: Exporting is also disposal

   It is in the definition and it surprises people: “disposal” means definitively discarding solid waste through discharge, destruction, deposit, injection, dispersion or filtration carried out within or on the land, into a body of water or into the air; the processing of solid waste to turn it into raw material for another process or into a reusable product is also considered disposal; and “export is also considered disposal.”

5. 5

   Step 5: The reports the facility must submit

   The Department of Natural and Environmental Resources shall require the implementation of engineering and administrative measures allowing it to determine the moment coal combustion residuals are generated. And every facility generating them must submit periodic reports breaking down the total tons generated monthly at the facility and shipped for disposal outside Puerto Rico. That breakdown is information that exists by statutory mandate.

6. 6

   Step 6: The fine runs per day

   Any natural or legal person violating any of this law’s prohibitions commits a felony and shall be fined no less than twenty-five thousand dollars (25,000) “for each day the violation subsists,” or imprisoned for a term of five (5) years, at the court’s discretion. That the fine is daily and has a floor rather than a ceiling is what gives the statute its weight.

7. 7

   Step 7: The absence of regulations did not suspend the law

   A useful fact against the argument that “the regulation is missing”: the law ordered the Environmental Quality Board to approve the necessary regulation within ninety (90) days, and added that “the Environmental Quality Board’s inaction in promulgating the regulations ordered here shall not be any impediment to this Act’s effects taking force.” The maximum one-hundred-eighty-day period began running once the Board approved the regulation, or ninety days from the law’s approval, whichever came first.

The Department of Natural and Environmental Resources is the agency the law charges with requiring the engineering and administrative measures and receiving the periodic reports, and the one that must establish by regulation the beneficial uses of encapsulated residuals. The environmental complaint before DRNA is explained in its own guide. The law also names the Environmental Quality Board as responsible for approving the regulation; we report both namings as the text carries them.

• Confusing the two rules: one bans disposal; the other caps deposit at 180 days from production.
• Invoking “beneficial use” for non-encapsulated residuals: the law expressly includes it in the prohibition.
• Believing export is outside: the definition says export is also considered disposal.
• Thinking storage in tanks and silos is indefinite: it may not extend beyond one year.
• Arguing that without regulations the law does not apply: the text says the Board’s inaction is no impediment.
• Reading the fine as a ceiling: it is no less than $25,000 for each day the violation subsists.

These are the government pages this guide is based on.

• Departamento de Recursos Naturales y Ambientales (DRNA)

  DRNA

  bvirtualogp.pr.gov

• Department of Natural and Environmental Resources

  DRNA

  www.drna.pr.gov