FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF
PUERTO RICO [Hon. Francisco A. Besosa, U.S. District Judge]
D. Keisler, with whom Ricardo L. Ortiz-Colón, Fiddler
González & Rodríguez, P.S.C., David T.
Buente, Samuel B. Boxerman, Paul J. Zidlicky, Christopher A.
Eiswerth, and Sidley Austin LLP were on brief, for appellant.
Francisco José Medina-Medina, with whom Pedro E.
Ortiz-Álvarez, LLC was on brief, for appellees.
F. Cooney, Douglas H. Green, Margaret K. Fawal, and Venable
LLP on brief for amici curiae the Utility Solid Waste
Activities Group and the American Coal Ash Association.
Torruella, Lipez, and Barron, Circuit Judges.
case requires us to decide whether two Puerto Rico
municipalities may prohibit the beneficial use and disposal
of coal ash at landfills within their borders even though a
state agency has authorized such activities at those
particular landfills. Appellant AES Puerto Rico, L.P.
("AES-PR"), a coal-fired power plant owner, claims
that the two municipal ordinances banning the approved
handling of "coal combustion residuals"
("CCRs") are preempted by federal and Commonwealth
law and also violate various provisions of the United States
and Puerto Rico constitutions. The district court granted
summary judgment for the municipalities on AES's federal
claims and declined to exercise jurisdiction over the
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 ("EQB"). Hence, we
reverse the summary judgment in favor of the municipalities
and remand with directions to the district court to enter
judgment for AES-PR based on its claim of Commonwealth law
begin by examining the legal framework that governs the
disposal of CCRs in Puerto Rico. That multi-tiered scheme
consists of (1) federal law, specifically, the Resource
Conservation and Recovery Act of 1976 ("RCRA"), 42
U.S.C. §§ 6901-6992k; (2) the Commonwealth's
Environmental Public Policy Act, P.R. Laws Ann. tit. 12,
§§ 8001-8007f, the source of the EQB's
authority; and (3) the Autonomous Municipalities Act, P.R.
Laws Ann. tit. 21, §§ 4001-4008, 4051-4058, the
source of the municipalities' authority. We briefly
describe each in turn, as pertinent to our analysis.
Federal Law: RCRA
enacted RCRA, "a comprehensive environmental statute
that governs the treatment, storage, and disposal of solid
and hazardous waste, " based, inter alia, on its finding
that waste disposal had become a national problem requiring
federal involvement. Meghrig v. KFC W., Inc., 516
U.S. 479, 483 (1996); see 42 U.S.C. §
6901(a)(4); 42 U.S.C. § 6901(a)(2) (noting the
"rising tide of scrap, discarded, and waste
materials"). Despite the perceived need for federal
action, however, Congress affirmed in RCRA that "the
collection and disposal of solid wastes should continue to be
primarily the function of State, regional, and local
agencies." Id. § 6901(a)(4). Hence, RCRA
anticipates that federal, state, and local governments will
work cooperatively to ensure the safe and environmentally
appropriate management of solid waste, and the statute's
objectives expressly include establishment of "a viable
Federal-State partnership" to "promote the
protection of health and the environment and to conserve
valuable material and energy resources." Id.
§ 6902(a)(7), (a).
cooperative approach applies both to "hazardous
wastes" under RCRA subtitle C, id. §§
6921-6939g, and to nonhazardous solid waste under RCRA
subtitle D, id. §§ 6941-6949a. See
City of Chicago v. Envtl. Def. Fund, 511 U.S. 328, 331
(1994). The federal Environmental Protection Agency
("EPA") has classified CCRs as nonhazardous waste,
see 40 C.F.R. § 261.4(b)(4)(i), and,
accordingly, they are regulated under subtitle
D. With respect to such materials,
Congress sought to promote methods of disposal that are
"environmentally sound" and maximize the reuse of
recoverable resources. 42 U.S.C. § 6941. To advance
those objectives, states and regional authorities are
provided technical and financial assistance to develop and
implement solid waste disposal plans, consistent with federal
guidelines, to be submitted for EPA approval. Id.
§§ 6941, 6943, 6946-47. Among other requirements,
the state plans must "prohibit the establishment of new
open dumps within the State, " and require that solid
waste either be used for resource recovery, disposed of in
sanitary landfills, "or otherwise disposed of in an
environmentally sound manner." Id. §
6943(a)(2). Congress directed the EPA to adopt
"regulations containing criteria for determining which
facilities shall be classified as sanitary landfills, "
and, under those criteria, "a facility may be classified
as a sanitary landfill . . . only if there is no reasonable
probability of adverse effects on health or the environment
from disposal of solid waste at such facility."
Id. § 6944(a).
Commonwealth's plan to regulate the disposal of
non-hazardous solid waste at landfills, approved by the EPA
in 1994, gives the EQB "authority and responsibility for
implementing and enforcing solid waste management
regulations, including a permit program, inspection authority
and enforcement activities." 59 Fed. Reg. 44, 144, 44,
145-46 (Aug. 26, 1994), 1994 WL 460341. The EPA notice
approving Puerto Rico's program stated that the EQB had
adopted comprehensive regulations governing waste disposal
"intended to bring Puerto Rico into full
conformity" with federal specifications, id. at
44, 145, and that Puerto Rico's application showed
compliance with "all of the statutory and regulatory
requirements established by RCRA, " id. at 44,
146. The Commonwealth was thus "granted a determination
of adequacy for all portions of its municipal solid waste
permit program." Id.
Commonwealth Law: Environmental Public Policy Act
Environmental Public Policy Act of 2004 designates the EQB as
the agency charged with managing Puerto Rico's response
to federal laws pertaining to "environmental
conservation, natural resources, solid waste, and other
matters" related to environmental quality. P.R. Laws
Ann. tit. 12, § 8002g. Among other functions, the
statute authorizes the EQB to (1) "adopt, promulgate,
amend and repeal rules and regulations for solid waste
disposal and establish the sites and methods to dispose of
such solid waste, " id. § 8002c(b)(4)(A);
(2) "adopt rules and regulations to establish a
permit-awarding and licensing mechanism that regulates the
control of the pollution in the air and water and by solid
waste and noise, " id. § 8002c(b)(3)(E);
and (3) issue orders "that, in its judgment, are
necessary to achieve the purposes of [the Act] and the
regulations promulgated thereunder, " id.
its statutory authority, the EQB adopted State Regulation No.
5717, which consists of a series of rules governing the
management of non-hazardous solid waste. See P.R.
Envtl. Laws & Regs. No. 5717 ("the 1997
Regulation"). The 1997 Regulation's purposes include
"[t]o establish a program for the design, construction,
operation, closure and post-closure maintenance of [sanitary
landfills] for non-hazardous solid waste." The Rules
specify, for example, where such facilities may be located
(Rule 540), design criteria (Rule 541), the minimum personnel
and their training (Rules 543, 544), and the need for a
system of ground water protection and monitoring (Rules
"final resolution or decision" of the EQB is
reviewable "in the manner provided for in the Puerto
Rico Uniform Administrative Procedures Act, " and EQB
decisions may not be "stayed, unless so ordered by the
Circuit Court of Appeals of Puerto Rico or by the Governing
Board [of the EQB] itself." P.R. Laws Ann. tit. 12,
§ 8002c(a)(8); see also id. § 8002f(a)(4)
(providing that "[a]ny person adversely affected by a
resolution, order or decision of the Governing Board [of the
EQB] may request the latter to reconsider its determination
or request a review by the Court of Appeals of Puerto
Rico"). Individuals who fail to comply with EQB
resolutions or orders "shall be guilty of a misdemeanor,
" id. § 8002j(a), and may be subject to
criminal or administrative fines, damages, and sanctions,
id. §§ 8002j(a)-(c).
Local Authority: Autonomous Municipalities Act
Rico's Autonomous Municipalities Act gives local
governments authority to exercise their "legislative and
executive powers in any matter of a municipal nature" to
promote "the welfare of the community and its economic,
social and cultural development" and to protect
"the health and safety of the people." P.R. Laws
Ann. tit. 21, § 4051(o). A separate provision vests
municipalities with "the powers that are necessary and
convenient to carry out" some twenty-odd functions,
id. § 4054, including to "[e]stablish
solid waste collection services and programs and public
sanitation programs in general, and adopt the standards and
measures that are necessary for the improvement and adequate
control and disposal of waste, " id. §
4054(a). This municipal authority is "subject to
applicable legislation, " id. § 4051(o),
and "subordinate to the Constitution of the
Commonwealth of Puerto Rico and to its laws, "
id. § 4003. The required compatibility of local
and commonwealth law also is recognized in a provision that
authorizes municipalities to adopt ordinances regulating
"solid waste collection management, " stating that
such measures must be "in harmony with the environmental
public policy of the Commonwealth of Puerto Rico."
Id. § 4055.
sketch the background of the dispute before us, drawing
liberally from the district court's well-crafted summary.
The facts set forth here are undisputed.
AES-PR and the Placement of CCRs
coal-fired power plant, located in Guayama, produces
approximately fifteen percent of the electricity used in
Puerto Rico. The Guayama facility imports the coal from
Colombia and, pursuant to a long-term contract, AES-PR sells
the electricity generated at the plant to the Puerto Rico
Electric Power Authority ("PREPA").
combustion of coal produces two types of ash: bottom ash and
fly ash, which are collectively labeled coal combustion
residuals, and referred to as CCRs. AES-PR produces
approximately 200, 000 to 250, 000 tons of CCRs each year,
some of which it uses in a manufactured aggregate product
marketed in Puerto Rico under the trade name AGREMAX
("Agremax"). According to
AES-PR, Agremax has various beneficial uses, including as
"structural fill" for building construction and as
"subbase material in road construction." Agremax
also has waste treatment applications; it can be used to
solidify liquid waste,  or be placed each day on top of solid
waste in a landfill -- a use known as "daily cover"
-- to prevent the waste materials from spreading. In the
latter role, Agremax substitutes for soil and other natural
materials. See 40 C.F.R. § 258.21(a) (stating
that sanitary landfills "must cover disposed solid waste
with six inches of earthen material at the end of each
operating day, or at more frequent intervals if ...