Solid Waste Management Authority Executive Director Agustín Carbó announced the voiding of the contract to guarantee a supply of garbage for the $500 million project after getting a legal opinion from the island Justice Department..

Justice Secretary Luis Sánchez Betances found that the contract with Energy Answers was null under the Municipal Autonomy Law because it limited the options of town governments in the handling of solid waste.

Carbó said private waste management haulers with contracts with municipal governments could have taken legal action against the SWMA.

Energy Answers environmental consultant and spokesman Javier Vélez Arocho called the decision “surprising.”

“We have not yet been able to examine the legal opinion by the Justice Department nor the documents related to the determination of the SWMA,” Vélez Arocho said. “However, over the course of more the more than four years that the company Energy Answers has been immersed in the permits process, it has been very careful that all accords it entered into have been based on law and applicable regulations.”

While the García Padilla administration hadn’t previously taken a strong public stand on the proposal, Energy Answers officials have said their project fulfills the criteria established for WTE technology in the Popular Democratic Party governing platform.

The proposed WTE plant in the Cambalache sector of Arecibo would have the capacity to process more than 2,000 tons of trash daily, while producing some 80 megawatts of energy at the same time, Energy Answers officials say. Employment for some 3,800 people would be created during its construction phase and 150 permanent jobs once the plant is in operation. The 40-acre project includes an advanced materials-recovery and recycling operation as well as fully enclosed waste-receiving, -processing, -energy recovery and ash-processing operations.

However, the project faced headwinds from EPA Regional Administrator Judith Enck, the federal agency’s top official in the region, who maintains that the plant could pose “serious air-quality and other environmental impacts.”

She said in March that an EPA decision on a crucial air permit wasn’t “imminent” because the federal agency was giving the project the “careful scrutiny” it required.

Enck also pointed to the “huge amount of public comment on the proposed garbage incinerator in Arecibo” as another issue holding back a final decision on the project.

While Enck said the agency is in no hurry to issue a ruling, the EPA was statutorily bound to make a decision on the permit by Oct. 31, 2012, which was a year after the federal agency notified developer Energy Answers that its application for the permit was complete. The federal agency has been reviewing the project for more than two years.

Enck’s statement that the project “could pose serious air-quality impacts” also appears to contrast with a technological assessment done by the EPA, which resulted in the agency granting a preliminary air permit for the facility in May 2012. In granting the preliminary approval, the EPA evaluated the facility’s potential impact on air quality by comparing it with the EPA air-quality standards established to protect public health, as well as its impact on nearby low-income communities. The EPA concluded the facility wouldn’t cause any health standards to be exceeded or that any communities would be disproportionately or adversely affected.

The public hearings process that followed was based on that preliminary approval. The EPA’s preliminary determination on the project’s Prevention of Significant Deterioration permit came seven months after the developer completed its application.

EPA officials announced last June it would extend the project’s public-comment period after it was forced to abruptly end a public hearing in Arecibo when project opponents protested an EPA decision to limit the time each speaker would be allotted to ensure all would have a chance to speak.

Along with the extension of the public-comment period through August, the EPA held another three-day round of public hearings that month in Arecibo where opponents and supporters spoke about the project.

EPA officials have cited the extension and the amount of public comment received as a reason for breaking its one-year deadline to issue a final determination. While regulations call for the EPA to deliver a final determination, without exceptions, within one year of an application being completed, the remedy for a developer—taking the EPA to court to force it to make a determination—would likely be lengthier and more complicated than simply allowing the agency to wrap up its review.

Critics, however, note Enck’s longstanding opposition to WTE plants, which predates her current post, when she worked against them as an environmental advocate in upstate New York. The EPA chief reiterated her criticism last week against the WTE technology by calling it a “garbage incinerator” and comparing its processing of garbage with “burning.”

“When you bury or burn waste, you are forfeiting an opportunity to use those materials for much more sustainable purposes and creating jobs at the same time. Burning and burying waste creates very, very few jobs. Recycling can create thousands of jobs here in Puerto Rico, and that is what we are looking forward to,” Enck said.

Energy Answers officials, however, say their facility will spur recycling efforts because it will have the “highest materials-recovery rates and one of the highest energy-recovery rates in the industry.” Officials said they are actively working with local recycling firms to further reduce materials from the waste stream. And they say the facility will comply with the most stringent air-quality standards of any facility in the U.S.

Enck has said Puerto Rico can manage its waste stream through recycling and “limited landfilling, but that stance conflicts with official EPA policy regarding nonhazardous waste-management hierarchy, which states WTE is preferable to using landfills.

“Combustion, or gasification with energy recovery, or WTE, is the environmentally preferable route for mixed solid wastes that are neither recyclable nor compostable. From an environmental standpoint, landfilling municipal solid waste is the least-preferred option,” the EPA stated.

By October 2014, most of the island’s landfills could be shuttered, with only a few able to meet federal operating standards to remain open, according to an order issued last year by the Puerto Rico Environmental Quality Board. The government’s current waste-management plan envisions the use of WTE along with increased recycling for future waste management. That plan has been backed by officials from both the Popular Democratic and New Progressive parties.

ADS declara nulo contrato con Energy Answers

La decisión de la agencia se basó en una opinión del Departamento de Justicia

Luis Sánchez Betances concluyó que el acuerdo pretendía limitar las facultades de los pueblos para disponer de sus desperdicios. (Archivo)

Por Gerardo E. Alvarado León / galvarado@elnuevodia.com