AES coal burning plant could obtain waiver on ash disposal

By John McPhaul

A recently approved regulation that prohibits the disposal of coal ash in Puerto Rico contains a section on exemptions that the coal company AES could request and which would apply to any prohibition in the regulation, Natural and Environmental Resources (DNER) Secretary Rafael Machargo Maldonado has acknowledged.

The loophole in the regulation came to light while the DNER secretary was responding to questions by Puerto Rican Independence Party Rep. Denis Márquez Lebrón during a public hearing of the House Committee on Natural Resources held earlier this week.

After more than a year in violation of Law 5-2020, which mandated the creation of the aforementioned regulation, on Monday the DNER approved the “Regulation for the Safe Management and Commercial Use of Coal Combustion Residues.”

Faced with Márquez Lebrón’s question about whether AES could request exemptions from many of the activities that are prohibited by law and regulation, Machargo Maldonado argued during Wednesday’s hearing that a greater cause would have to exist in order for a waiver to be granted.

“Where does it say in the dispensation part about the greater cause?” Márquez Lebrón asked.

To which the secretary replied: “No, that is not there.”

The legislator also questioned the duration of the waivers that AES could receive, which according to the regulations could last up to two years.

“How can it be written in a regulation, Mr. Secretary, that the period will be as short as possible? In other words, AES could have a waiver, of multiple actions that are there, for three months, for six months, for one year and a half, for one year and 10 months,” Márquez Lebrón said.

Machargo Maldonado again insisted that a greater cause had to exist; for example, that due to a hurricane, ships could not reach Puerto Rico.

“In the definition of greater cause, and in the definitions of the regulations, and in Rule 35, is all this properly clarified?” Márquez Lebrón asked again.

“We would have to check that,” Machargo Maldonado answered.

The PIP lawmaker said it is inconceivable that after taking more than a year to approve the regulation, the DNER still has to ponder the issue of waivers.

“The community itself requested, during the public hearings on the regulation, the elimination of these dispensations,” he said. “After the disastrous record that the AES company has had in our country, we cannot be giving it opportunities to continue contaminating and poisoning the health of our people. We will continue fighting with the communities to get this criminal enterprise out of Puerto Rico.”

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