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Dozens of residents of Peñuelas, Puerto Rico and their supporters were arrested today for protests against the trucking of AES Puerto Rico, L.P. coal ash waste to the Peñuelas Valley Landfill. Among those arrested is Puerto Rico Senator, Maria de Lourdes Santiago. The arrests started on Monday, November 21, 2016 when 21 people were detained. Today, 41 more people were arrested and more interventions are expected. Community members cite a municipal ordinance which prohibits use of coal ash in the town of Peñuelas as the basis for their opposition to the coal ash. Approximately 43 other municipalities in Puerto Rico have prohibited the use of coal ash as fill material at construction sites and in their landfills. The AES coal ash has been used as daily cover for garbage or just left in mounds exposed to the breeze and rain which has led to fugitive dust and water contamination. A recent Puerto Rico Court of Appeals decision modified a previous lower court decision upholding the municipal ordinance. In a separate suit by AES against the municipalities of Humacao and Peñuelas, the United States District Court for the District of Puerto Rico determined that the municipal ordinances did not violate federal law. AES has incurred in multiple violations of illegal contaminated water discharges and has been fined by EPA on at least two occasions as recently as last year.

Community members cite a municipal ordinance which prohibits use of coal ash in the town of Peñuelas as the basis for their opposition to the coal ash. 

Since 2014, communities throughout southern and southeastern Puerto Rico have been vehemently protesting the fugitive dust and other significant negative impacts of coal ash generated by AES Puerto Rico, L.P. Dozens of truckloads per day of AES coal combustion residuals that AES refers to as “Agremax” have been transported through neighborhoods in Humacao and Penuelas, Puerto Rico, exposing nearby residents to inhalation of fugitive dust from the coal ash. An Environmental Protection Agency (EPA) study using the  Leaching Environmental Assessment Framework (“LEAF”) shows that the AES coal ash contains high levels of aluminum, arsenic, boron, cadmium, chloride, chromium, fluoride, lead, lithium, molybdenum, selenium, sulfate, and thallium that can leach from the coal combustion residuals and contaminate the local environment. A.C. Garrabrants, D.S. Kosson, R. DeLapp and Peter Kariher, Leaching Behavior of “AGREMAX” Collected from a Coal-Fired Power Plant in Puerto Rico, Epa-600/r-12/XXX (November 2012).

Approximately 43 other municipalities in Puerto Rico have prohibited the use of coal ash as fill material at construction sites and in their landfills.

EPA has found that harmful exposure to arsenic and PM 2.5 can result when coal ash is uncontrolled. (EPA Risk Assessment 2014, pp. 3-6 to 3-10).  EPA also released a technical support document with the publication of its final rule entitled "Damage Cases: Fugitive Dust Impacts" which concludes:

"Evidence of fugitive dust impact throughout the life cycle management of coal combustion residuals (CCR) has been available even prior to the publication of the proposed CCR rule in June 2010. Since the proposed rule was issued, a great deal of additional evidence has surfaced. This evidence, combined with the results of air quality risk screening conducted by EPA that demonstrated human health risk associated with CCR fugitive dust was instrumental in EPA’s decision to regulate air quality issues associated with CCR management."

The report specifically refers to the AES plant in Guayama, Puerto Rico highlighting the human health risk from both arsenic exposure and elevated radioactivity of the ash. (pp. 3-5). The EPA Final Rule on CCRs indicates as follows:

During the development of this final rule, EPA obtained information on a comparable situation in which large quantities of unencapsulated CCR were placed on the land in a manner that presented significant concerns. The AES coal-fired power plant in Puerto Rico lacked capacity to dispose of their CCR on-site, and off-site landfills in Puerto Rico were prohibited from accepting CCR. In lieu of transporting their CCR off of the island for disposal, AES created an aggregate (‘‘AGREMAX’’) with the CCR generated at their facility, and used the aggregate as fill in housing developments and in road projects. Over two million tons of this material was used between 2004 and 2012. Currently,  there is insufficient information to determine whether groundwater has been contaminated  as a result of this practice,  and thus, EPA cannot classify this as either a proven or potential ‘‘damage case.’’ Nevertheless, the available facts illustrate several of the significant concerns associated with unencapsulated uses. Specifically, the AGREMAX was applied without appropriate engineering controls and in volumes that far exceeded the amounts necessary for the engineering use of the materials. Inspections of some of the sites where the material had been placed showed use in residential areas, and to environmentally vulnerable areas, including areas close to wetlands and surface waters and over shallow, sole-source drinking water aquifers. In addition, some sites appeared to have been abandoned. Consistent with the proposed rule, EPA does not consider the practices described in this section to be beneficial use, but rather waste management that would be subject to the requirements of the final rule. pg. 21328-9.

In 2011, ABC World News covered the case of AES coal ash contamination in Bokoshe, OK, where coal ash from an AES plant was dumped in an uncontrolled landfill, resulting in the community's dangerous exposure to fugitive dust. The Bokoshe site is also included in the EPA Report on pp. 42-45.

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AES coal ash is also associated with contamination in the Dominican Republic and various cases of groundwater pollution. On April 4, 2016, Bloomberg News reported that AES Corporation settled a lawsuit relating to damages from coal ash which allegedly caused birth defects in children in the Dominican Republic.

In the absence of a market or beneficial use for coal ash generated by AES, the Puerto Rico Environmental Quality Board (EQB) issued Resolution R-14-27-20 revoking previous resolutions that exempted the AES coal ash from regulation and at the request of the EPA requiring the disposal of the AES coal ash in a landfill in compliance with the subtitle D of the Resource Recovery and Conservation Act (RCRA). The EQB also authorized the use of coal ash as daily cover for landfill waste in contrast to other jurisdictions such as Ohio that prohibit the use of coal ash as daily cover because of the fugitive dust contamination. EQB required AES to submit a plan to manage the accumulation of coal ash (200 feet long by 200 feet wide by 50 feet high) on the plant premises. The residents of the municipalities of Arroyo, Patillas, Maunabo, Yabucoa and Humacao have testified at Puerto Rico Senate hearings about the large number of truckloads of AES coal ash and the fugitive dust in their communities on their way to the landfill located in Humacao. Once there, the AES coal ash is used as daily cover and stockpiled, generating large amounts of fugitive dust which is what is apparently planned in Peñuelas.

AES coal ash is also associated with contamination in the Dominican Republic and various cases of groundwater pollution.

In the initial permits and power purchase agreement for the AES plant in Guayama, Puerto Rico, AES committed to exporting its coal combustion residuals outside Puerto Rico if it could not find a beneficial use for its coal ash waste on the island. Although the Executive Director of the Puerto Rico Electric Power Authority, Javier Quintana acceded to an amendment to the power purchase agreement which allows for disposal of the AES coal ash in Puerto Rico, the Puerto Rico Planning Board siting consultation approval for the AES plant requires that the coal ash be either marketed for beneficial use or exported from Puerto Rico. The Planning Board Resolution provides that if a market for beneficial use is not developed, AES must export the coal ash.  Planning Board Resolution Number 94-71-1099-JPU, pp. 16 and 51.

AES generates over 300,000 tons of coal ash per year and over two million tons of coal ash were used as fill material at construction sites above the South Coast Aquifer in southeastern Puerto Rico. AES coal ash was deposited within a few meters of public water wells, irrigation canals, streams, farms, wetlands, beaches and other sensitive areas. The Aquifer is the sole source of potable water for approximately 53,000 residents of Salinas and Santa Isabel and many more thousands of people in the municipalities of Peñuelas, Ponce, Juana Diaz, Guayama and Arroyo, Puerto Rico. In some places, contractors to which AES provided free delivery of Agremax coal ash excavated huge holes that were filled with CCRs below the Aquifer water-table. All these communities have now come together against AES’ egregious conduct.