AES Puerto Rico, L.P. v. Trujillo-Panisse et al

Filing 60

OPINION AND ORDER re 29 Motion for Partial Summary Judgment; 32 Motion for Miscellaneous Relief; and re 37 Motion for Judgment on the Pleadings. The Court GRANTS AES-PR's requests for judicial notice, (Docket No. 32; Docket No. 49 at p. 9 ), DENIES defendants' motion for judgment on the pleadings, (Docket No. 37), and DENIES AES-PR's motion for partial summary judgment, (Docket No. 29). Signed by Judge Francisco A. Besosa on 10/01/2015. (brc)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
AES PUERTO RICO, L.P.,
Plaintiff,
v.
MARCELO
al.,

Civil No. 14-1767 (FAB)

TRUJILLO-PANISSE,

et

Defendants.

OPINION AND ORDER
BESOSA, District Judge.
Two Puerto Rican municipalities passed ordinances restricting
the

use

of

ash

derived

territorial borders.

from

coal

combustion

within

their

AES Puerto Rico, L.P. (“AES-PR”), a coal-

fired power plant owner, filed suit against the municipalities to
challenge the legality of the ordinances.

(Docket No. 1.)

Currently before the Court are AES-PR’s motion for partial
summary judgment on its preemption claims, (Docket No. 29), which
defendants oppose, (Docket No. 40), as well as AES-PR’s unopposed
requests for judicial notice, (Docket No. 32; Docket No. 49 at
p. 9). Also before the Court is defendants’ motion for judgment on
the pleadings on justiciability grounds, (Docket No. 37), which
AES-PR opposes, (Docket No. 45).
For the reasons below, the Court GRANTS AES-PR’s requests for
judicial notice, (Docket No. 32; Docket No. 49 at p. 9), DENIES
defendants’ motion for judgment on the pleadings, (Docket No. 37),

Civil No. 14-1767 (FAB)

2

and DENIES AES-PR’s motion for partial summary judgment, (Docket
No. 29).
BACKGROUND
Plaintiff AES-PR owns and operates a coal-fired power plant in
Guayama, Puerto Rico (the “Guayama facility”).

(Docket No. 31 at

¶ 2.)

The Guayama facility imports coal from outside of Puerto

Rico,

primarily

electricity.

from

Colombia,

which

it

(Docket No. 1 at ¶¶ 20, 25.)

burns

to

generate

AES-PR sells this

electricity to the Puerto Rico Electric Power Authority (“PREPA”).
Id. at ¶¶ 22-23.

Pursuant to its arrangement with PREPA, AES-PR

satisfies approximately fifteen percent of Puerto Rico’s total
electric power needs.

Id. at ¶ 21.

The combustion of coal produces two types of ashes:

bottom

ash and fly ash,1 which are collectively referred to as coal
combustion residuals (“CCRs”).

(Docket No. 31 at ¶ 3.)

When coal

is burned at the Guayama facility, AES-PR collects the CCRs and
transports them to storage silos on the premises. (Docket No. 1 at
¶ 26.)

AES-PR produces approximately 200,000 to 250,000 tons of

CCRs per year.

1

Id. at ¶ 27.

During the coal burning process, the larger particles fall to the
bottom of the combustion chamber forming “bottom ash.” (Docket
No. 1 at ¶ 26.)
The finer particles, called “fly ash,” are
captured with an electrostatic precipitator, a pollution-control
device designed to capture particulate emissions before they enter
the atmosphere. Id.

Civil No. 14-1767 (FAB)

3

AES-PR uses the CCRs from the Guayama facility to produce coal
combustion products (“CCPs”), including a manufactured aggregate
product (sometimes referred to as “rock ash”), which AES-PR markets
under the trade name AGREMAX™ (“Agremax”).
¶¶ 30-31; Docket No. 31 at ¶ 4.2

See Docket No. 1 at

According to AES-PR, Agremax can

be “beneficially used” in several ways.

(Docket No. 1 at ¶ 33.)

For example, Agremax can be used in the construction industry as
“structural fill” and for transportation projects as “subbase
material” for roads.
treatment

Id. at ¶¶ 3, 33.

applications:

it

can

be

Agremax also has waste
used

for

liquid

waste

solidification and as “daily cover” for solid waste landfills,
meaning Agremax (instead of natural materials like soil) is placed
every day on top of the solid waste deposited in the landfill.

See

id.; Docket No. 31 at ¶ 20.
AES-PR currently has contracts with landfills in Puerto Rico
to provide Agremax for use as an alternative daily cover.
No. 31 at ¶ 20.)

(Docket

For example, AES-PR has agreements with El Coqui

Landfill Company LLC (“Coqui Waste”), Ecosystems, Inc. (“Ecosystems
Waste”), and Peñuelas Valley Landfill Company, Inc. (“PV Waste”) to
provide CCPs - including Agremax - for beneficial use at El Coqui

2

Agremax is produced in a mill at the Guayama facility from a
mixture of fly ash, bottom ash, and water. See Docket No. 1 at
¶ 32. The mixture is compressed and allowed to cure, during which
time it hardens and forms into a manufactured aggregate. Id. The
manufactured aggregate is further processed with heavy equipment
and then stockpiled as inventory for subsequent beneficial use.
Id.

Civil No. 14-1767 (FAB)

4

Landfill (the “Coqui Landfill”) in Humacao, Ecosystems Landfill in
Peñuelas,3 and Peñuelas Valley Landfill (the “PV Landfill”) in
Peñuelas, respectively.

See Docket No. 31 at ¶¶ 19, 21; Docket

No. 51 at p. 3.
The Ordinances
Two

municipalities

in

Puerto

Rico

enacted

ordinances

restricting the use of coal ash within their territorial borders.
These ordinances are the subject of this suit.

On April 10, 2013,

the Municipality of Peñuelas adopted Ordinance Number 13, Series
2012-2013 (the “Peñuelas Ordinance”), which provides:
The use of ashes coming from the burning of coal, in
energy generating plants, as landfill material and its
depositing on lands within the territorial limits of the
Municipality of Peñuelas is forbidden.
(Docket No. 32-2 at p. 8, § 1 (emphasis added).)
On February 10, 2014, the Municipality of Humacao adopted
Ordinance Number 21, Series 2013-2014 (the “Humacao Ordinance”),
which provides:
Any kind of use of the ash derived from coal combustion
in electric power generating plants or any other
industrial or commercial activity as filler material,
whether to level the terrain, for landfills, or in any
other kind of filler, is hereby prohibited within the
territorial limits of the Autonomous Municipality of
Humacao.
(Docket No. 32-1 at p. 9, § 1 (emphasis added).)

3

The Ecosystems Landfill in Peñuelas is currently under
construction and is not yet operational. See Docket No. 1 at ¶ 37.

Civil No. 14-1767 (FAB)

5

Violators of either ordinance are subject to administrative
fines up to $5,000.

Id. at p. 10, § 6; Docket No. 32-2 at p. 8,

§ 1.
Both Ordinances are aimed specifically at curbing AES-PR’s use
of coal ash.

They each discuss AES-PR’s extensive use of coal ash

on the island of Puerto Rico over the past few years, noting that
coal ashes have been used in various municipal projects, from rural
and agricultural lands to residential roads, and that in many of
these places, coal ashes were deposited near aquifers.
No. 32-1 at p. 8; Docket No. 32-2 at p. 7.

See Docket

They each express

concern over the implications of this pervasive use, describing the
findings of a 2010 study in which samples of CCR filler taken from
the

Parque

Gabriela

Development

of

Salinas

showed

high

concentrations of carcinogenic and toxic metals, including arsenic
and lead, and excessive radiation levels.4
p. 9; Docket No. 32-2 at p. 7.

See Docket No. 32-1 at

Both Ordinances provide examples of

possible damage to the environment and human health involving AESPR’s use of coal combustion byproducts in places outside of Puerto
Rico, including Tennessee and the Dominican Republic.

See Docket

No. 32-1 at p. 9; Docket No. 32-2 at p. 7.

4

According to this study, the alpha and beta radiation levels were
up to three times the amount permitted by law. See Docket No. 32-1
at p. 9; Docket No. 32-2 at p. 7.

Civil No. 14-1767 (FAB)

6

The Lawsuits in Commonwealth Court
Since the enactment of the Ordinances, the Municipality of
Peñuelas and the Municipality of Humacao have each filed lawsuits
in Commonwealth Court against parties with which AES-PR has ongoing
contracts.

See Docket No. 49 at p. 9.

In August 2014, the

Municipality of Peñuelas brought suit against Ecosystems Waste
seeking to enjoin the use of Agremax in the construction of the
Ecosystems Landfill in Peñuelas.
complaint

alleges

that

(Docket No. 49-3.)

Ecosystems

Waste

used

The Peñuelas

Agremax

in

the

construction of the landfill’s access road and, in doing so,
violated the Peñuelas Ordinance by “disposing of and/or depositing”
the filler material on the ground.

Id. at p. 4.

Similarly, in

October 2014, the Municipality of Humacao filed suit against Coqui
Waste seeking a permanent cease and desist order to prevent the
deposit of AES-PR’s coal ash material in the Coqui Landfill.
(Docket No. 49-2.)
Shortly thereafter, AES-PR initiated this action.
Procedural History
On October 16, 2014, AES-PR filed suit in this Court against
the Municipality of Peñuelas, its Mayor, Walter Torres-Maldonado
(“Mayor Torres”) (collectively, the “Peñuelas defendants”), the
Municipality of Humacao, and its Mayor, Marcelo Trujillo-Panisse
(“Mayor

Trujillo”)

(collectively,

the

“Humacao

defendants”),

challenging the municipal restrictions on CCRs in Peñuelas and

Civil No. 14-1767 (FAB)

7

Humacao. (Docket No. 1.) Among other things, AES-PR contends that
the Environmental Protection Agency (the “EPA”), pursuant to the
Resource Conservation and Recovery Act, 42 U.S.C. §§ 6901 et seq.
(“RCRA”),

and

Puerto

Rico’s

Environmental

Quality

Board

(the

“EQB”), pursuant to parallel Commonwealth law, P.R. Laws Ann. tit.
12 §§ 8001 et seq., authorize and encourage the beneficial use of
CCRs.

See id. at pp. 11-15.

AES-PR contends that because the

Ordinances conflict with this authority, the Ordinances violate the
federal Supremacy Clause, are void and ultra vires under Puerto
Rico law, and are preempted by Puerto Rico law.
12

(federal

preemption),

¶¶

133-39

¶¶ 140-47 (state preemption).5

(void

January

(Docket No. 22.)

2,

2015,

and

ultra

vires),

AES-PR requests injunctive and

declaratory relief in addition to damages.
On

See id. at ¶¶ 102-

defendants

Id. at ¶ 6.

answered

the

complaint.

In their answer, they admit that the Humacao and

Peñuelas Ordinances both “ban[] the use of ash resulting from the
burning of coal anywhere within the territorial limits” of Humacao
and Peñuelas.

Id. at ¶¶ 16, 21.

On May 15, 2015, AES-PR moved for summary judgment on its
federal and state preemption claims.

5

(Docket No. 29.)

The complaint also asserts claims pursuant to the federal
Commerce Clause, (Docket No. 1 at ¶¶ 78-101); the Contracts Clause
of the United States and Puerto Rico constitutions, id. at ¶¶ 113121, 148-150; and the Due Process Clause of the United States and
Puerto Rico constitutions, id. at ¶¶ 122-132, 151-153.

Civil No. 14-1767 (FAB)
On

May

pleadings.

26,

2015,

8
defendants

(Docket No. 37.)

moved

for

judgment

on

the

Defendants argue that AES-PR lacks

standing to challenge the legality of the Ordinances and that AESPR’s

claims

untimely.

against
Id.

the

AES-PR

Peñuelas

defendants

opposed defendants’

are

unripe

motion.

and

(Docket

No. 45.)
On June 3, 2015, defendants opposed AES-PR’s motion for
partial summary judgment, (Docket No. 40), to which AES-PR replied
on June 17, 2015.

(Docket No. 49.)

On June 30, 2015, AES-PR then

filed a motion to supplement the summary judgment record and to
request expedited consideration or hearing. (Docket No. 51.) AESPR

informed

the

Court

that

on

June

26,

2015

the

Peñuelas

defendants, citing the Peñuelas Ordinance, “prevented the lawful
delivery of [Agremax]” to the PV Landfill.

Id. at p. 1.6

On

July 7, 2015, AES-PR filed a second motion to supplement the
summary judgment record in order to submit a copy of an EQB
resolution interpreting the PV Landfill’s Operating Plan, (Docket
No. 55), and defendants filed a response, (Docket No. 56.)

6

The

Specifically, AES-PR alleges that the Peñuelas defendants
“blocked the public road to the PV Landfill entrance with vehicles,
trucks, and heavy equipment bearing municipal license plates.”
(Docket No. 51 at p. 5.)
During this time, a member of the
Peñuelas municipal legislature, “inspected each truck to verify
whether it contained Agremax” and “denied access to the PV Landfill
to all trucks with cargo shipping documents indicating that the
material carried was from AES-PR.” Id. According to AES-PR, the
municipal legislative member “stated she was acting at the
direction of the Mayor of Peñuelas to enforce the Peñuelas
Ordinance.” Id.

Civil No. 14-1767 (FAB)

9

following day, on July 8, 2015, the Court held a hearing to discuss
the events in Peñuelas and the issue of preemption.

(Docket

No. 57.)
REQUEST FOR JUDICIAL NOTICE
AES-PR requests that the Court take judicial notice of various
documents attached as exhibits to its motion for partial summary
judgment.

(Docket No. 32.)

The documents include:

(1) the

Humacao Ordinance (Docket No. 32-1); (2) the Peñuelas Ordinance
(Docket No. 32-2); (3) the Puerto Rico Planning Board’s May 1,
1996, Resolution (Docket No. 32-3); (4) the Guayama facility’s
updated EQB Operating Permit (Docket No. 32-5); (5) the Coqui
Landfill’s Operating and Contingency Plan for Nonhazardous Waste
(Docket No. 32-6); (6) the Coqui Landfill’s EQB Permit to Operate
a Facility for Final Disposal of Non-Hazardous Solid Waste (Docket
No. 32-7); (7) the EQB’s August 27, 2014, Resolution (Docket
No. 32-8); and (8) the EQB’s March 26, 2015 letter to Coqui Waste
(Docket No. 32-9.)
In its reply brief, AES-PR also requests that the Court take
judicial notice of two complaints filed in the Commonwealth Courts.
See Docket No. 49 at p. 9.

AES-PR requests judicial notice of:

(1) the Humacao Complaint, Case No. HSC-120-1401009 (P.R. Super.
Ct.

Oct.

2,

2014),

(Docket

No.

49-2);

and

(2)

the

Peñuelas

Complaint, Case No. JPE-2014-0457 (P.R. Super. Ct. Aug. 18, 2014),

Civil No. 14-1767 (FAB)
(Docket No. 49-3).

10

Defendants do not challenge AES-PR’s requests

for judicial notice.
Federal Rule of Evidence 201 permits a court to take judicial
notice of a fact “not subject to reasonable dispute” because the
fact “can be accurately and readily determined from sources whose
accuracy

cannot

201(b)(2).

reasonably

be

questioned.”

Fed.

R.

Evid.

Provided that their authenticity or accuracy is not

disputed, documents contained in the public record, including the
records and reports of administrative bodies, are proper subjects
of judicial notice.

See, e.g., Torrens v. Lockheed Martin Servs.

Grp., Inc., 396 F.3d 468, 473 (1st Cir. 2005) (“We are free
ourselves to take judicial notice of the existence of government
records.”); United States v. 14.02 Acres of Land More or Less in
Fresno Cnty., 547 F.3d 943, 955 (9th Cir. 2008) (finding judicial
notice

appropriate

for

records

and

reports

of

administrative

bodies); Catholic League for Religious & Civil Rights v. City &
Cnty. of S.F., 464 F. Supp. 2d 938, 941 (N.D. Cal. 2006) (taking
judicial

notice

of

city

board

of

supervisors

resolutions).

Similarly, documents on file in federal or state courts are proper
subjects of judicial notice.

Harris v. Cnty. of Orange, 682 F.3d

1126, 1132 (9th Cir. 2012); see Global Network Commc’ns, Inc. v.
City of New York, 458 F.3d 150, 157 (2d Cir. 2006) (“A court may
take judicial notice of a document filed in another court not for
the truth of the matters asserted in the other litigation, but

Civil No. 14-1767 (FAB)
rather to

establish

11

the

fact

of

such

litigation

and

related

filings.”); MVM Inc. v. Rodriguez, 568 F. Supp. 2d 158, 164 (D.P.R.
2008) (Besosa, J.) (permitting judicial notice of another court’s
order as a fact that another proceeding took place).
Accordingly, the Court finds the above documents appropriate
for judicial notice.

AES-PR’s requests for judicial notice,

(Docket No. 32; Docket No. 49 at p. 9), are GRANTED.
DEFENDANTS’ MOTION FOR JUDGMENT ON THE PLEADINGS7
Defendants seek a judgment on the pleadings, arguing that AESPR lacks standing to challenge the legality of the Ordinances, that
AES-PR’s claims against the Peñuelas defendants are unripe, and
that AES-PR’s claims against the Peñuelas defendants are untimely.
(Docket No. 37.)
pleadings,”

Although styled as a “motion for judgment on the

invoking

defendants’ motion

Federal

Rule

of

Civil

Procedure

12(c),

embraces the legal standards governing Rule

12(b)(6).

See Docket No. 37 at pp. 2-5.

substance

seek

dismissal

of

the

But because defendants in

complaint

on

justiciability

grounds, defendants’ motion is best understood as a motion to
dismiss

7

for

lack

of

subject

matter

jurisdiction

pursuant

to

Although defendants’ motion for judgment on the pleadings,
(Docket No. 37), was filed after AES-PR’s motion for summary
judgment, (Docket No. 29), the Court first considers defendants’
motion, which raises threshold issues regarding subject matter
jurisdiction. See Pagan v. Calderon, 448 F.3d 16, 26 (1st Cir.
2006) (“A federal court must satisfy itself as to its jurisdiction,
including a plaintiff’s Article III standing to sue, before
addressing his particular claims.”).

Civil No. 14-1767 (FAB)
Rule 12(b)(1).

12

See, e.g., Valentin v. Hosp. Bella Vista, 254 F.3d

358, 362-63 (1st Cir. 2001) (“[Rule 12(b)(1) is a large umbrella,
overspreading

a

variety

of

different

types

of

challenges

to

subject-matter jurisdiction,” including challenges “grounded in
considerations of ripeness.”); United Seniors Ass’n, Inc. v. Philip
Morris USA, 500 F.3d 19, 23 (1st Cir. 2007) (finding defendants’
standing arguments call into question the court’s subject-matter
jurisdiction).
When considering a Rule 12(b)(1) motion, the court must credit
the

plaintiff’s

well-pled

factual

allegations

and

draw

all

reasonable inferences in its favor. See Valentin, 254 F.3d at 365.
The reviewing court need not confine its jurisdictional inquiry to
the pleadings, but may consider other materials.

See Gonzalez v.

United States, 284 F.3d 281, 288 (1st Cir. 2002).

“The party

invoking federal jurisdiction has the burden of establishing that
it exists.”

Mangual v. Rotger-Sabat, 317 F.3d 45, 56 (1st Cir.

2003).
Standing
Defendants first contend that dismissal of the complaint is
warranted because AES-PR lacks standing to challenge the legality
of the Ordinances.

(Docket No. 37 at pp. 8-9.)

The doctrine of

standing is rooted in Article III of the Constitution, which
confines federal courts to the adjudication of actual cases and
controversies.

See U.S. Const. art. III, § 2, cl. 1; Lujan v.

Civil No. 14-1767 (FAB)

13

Defenders of Wildlife, 504 U.S. 555, 560 (1992) (“[T]he core
component of standing is an essential and unchanging part of the
case-or-controversy requirement of Article III.”). An actual “case
or controversy” exists when “the party seeking to invoke the
court’s jurisdiction (normally, the plaintiff) has a ‘personal
stake in the outcome’ of the claim asserted.”

Pagan v. Calderon,

448 F.3d 16, 27 (1st Cir. 2006) (quoting Baker v. Carr, 369 U.S.
186, 204 (1962)).

To satisfy the personal stake requirement, “a

plaintiff must establish each part of a familiar triad:
causation, and redressability.”

injury,

Katz v. Pershing, LLC, 672 F.3d

64, 71 (1st Cir. 2012); accord Van Wagner Boston, LLC v. Davey, 770
F.3d 33, 36 (1st Cir. 2014) (“The ‘irreducible constitutional
minimum of standing’ requires that the plaintiff has suffered an
injury

in

fact,

that

this

injury

was

caused

by

the

conduct

complained of, and that the relief sought is likely to redress the
injury suffered.”
standing

inquiry

(quoting Lujan, 504 U.S. at 560-61)).
is

claim-specific:

the

reviewing

court

The
must

determine whether “[the] plaintiff is entitled to have a federal

Civil No. 14-1767 (FAB)

14

court adjudicate each particular claim that he asserts.”

Pagan,

448 F.3d at 26.8
In challenging AES-PR’s standing, defendants only dispute the
first element - that is, whether AES-PR sufficiently alleges an
“injury in fact.”

See Docket No. 37 at pp. 8-9.

Defendants argue

that AES-PR, who is in the business of generating energy and
selling CCPs, “is not in any imminent danger of being fined”
because the Ordinances, which “do not prohibit the sale of CCPs,”
do not apply to AES-PR’s business activities.
added).

Defendants thus contend that AES-PR suffers no “direct

injury” as a result the Ordinances.
In

Id. (emphasis

response,

AES-PR

Id. at p. 9.

contends

that

enforcement

of

the

Ordinances impairs its ability to perform existing contracts with
third parties to provide CCRs, including Agremax, for beneficial
use in Humacao and Peñuelas.

(Docket No. 45 at pp. 13-14.)

AES-PR

further argues that the Ordinances, which specifically target AESPR

and

its

Agremax,

prevent

contracts in the future.

AES-PR

from

Id. at pp. 14-15.

entering

into

such

AES-PR points out that

defendants have filed lawsuits in Puerto Rico courts against the

8

In addition to these Article III prerequisites, prudential
concerns ordinarily require a plaintiff to show: (1) that its claim
is premised on its own legal rights (as opposed to those of a third
party); (2) that its claim is not merely a generalized grievance;
and (3) that its claim falls within the zone of interests protected
by the law invoked. See Pagan, 448 F.3d at 27. Defendants raise
no issue as to these prudential considerations, which in any event,
“are not as inexorable as their Article III counterparts.” See id.

Civil No. 14-1767 (FAB)

15

parties with which AES-PR contracts seeking to enjoin the use of
Agremax in their respective jurisdictions.

Id. at p. 10.

To satisfy the “injury in fact” element, a plaintiff must
adequately allege “an invasion of a legally protected interest,”
Lujan, 504 U.S. at 560, that is “concrete and particularized,” on
one hand, and “actual or imminent (as opposed to conjectural or
hypothetical),” on the other, Pagan, 448 F.3d at 27.

In this case,

AES-PR suffers injury because it wants to distribute its Agremax
product to landfills in Humacao and Peñuelas but is “constrained
from doing so by the strictures of the Ordinance[s].”

See Merit

Const. Alliance v. City of Quincy, 759 F.3d 122, 127 (1st Cir.
2014).

The alleged injury is particularized - the Ordinances are

expressly aimed at curtaining the use of AES-PR’s aggregate product
- and non-hypothetical - in practice, through litigation and other
methods, defendants have relied upon the Ordinances to prevent
landfills in Humacao and Peñuelas from receiving Agremax, burdening
AES-PR’s existing contractual arrangements with those landfills.
With respect to the Peñuelas Ordinance, which has since been
enforced against AES-PR, the injury to AES-PR is particularly
clear. The record reveals that on June 26, 2015, approximately one
month

after

defendants

moved

for

dismissal,

the

Peñuelas

defendants, allegedly citing the Peñuelas Ordinance, prevented
AES-PR from delivering Agremax to the PV Landfill.
No. 51.

See Docket

AES-PR maintains that, as a result, it was unable to

Civil No. 14-1767 (FAB)
fulfill

its

contract

16
with

PV

Waste,

which

contemplates

the

provision of Agremax for use as daily cover to the PV Landfill.
See id. at pp. 6-7.

In addition to the sunk costs attendant to

hiring truckers to deliver CCRs to the PV Landfill unsuccessfully,
AES-PR claims that it will incur additional costs and hardship to
dispose of its CCRs properly.
proposition

that

‘a

Id. at pp. 7-8.

relatively

small

“It is a bedrock

economic

identifiable trifle—is enough to confer standing.”

loss—even

an

Katz, 672 F.3d

at 76 (quoting Adams v. Watson, 10 F.3d 915, 924 (1st Cir. 1993)).
The enforcement of the Peñuelas Ordinance against AES-PR thus
constitutes a direct harm to AES-PR’s economic interests sufficient
to confer standing.
In sum, the Court finds that AES-PR adequately pleads an
injury sufficient to confer standing.
Ripeness
Defendants

also

argue

that

Peñuelas defendants are not ripe.
The

ripeness

and

standing

AES-PR’s

claims

against

the

(Docket No. 37 at pp. 10-14.)

inquiries

generally

overlap.

See

McInnis-Misenor v. Maine Med. Ctr., 319 F.3d 63, 69 (1st Cir.
2003). Like standing, the ripeness doctrine “has roots in both the
Article III case or controversy requirement and in prudential
considerations.”

Mangual, 317 F.3d at 59.

“Whereas standing asks

‘who’ may bring a claim, ripeness concerns ‘when’ a claim may be
brought.”

Nulankeyutmonen Nkihtaqmikon v. Impson, 503 F.3d 18, 32

Civil No. 14-1767 (FAB)

17

(1st Cir. 2007). The ripeness doctrine protects against “premature
adjudication” so that courts do not “entangl[e] themselves in
abstract disagreements.”

Roman Catholic Bishop of Springfield v.

City of Springfield, 724 F.3d 78, 89 (1st Cir. 2013) (quoting
Abbott Labs. v. Gardner, 387 U.S. 136, 148 (1967)).
In

analyzing

substantial

ripeness,

controversy,

courts

ask

between parties

whether
having

“there

is

a

adverse legal

interests, of sufficient immediacy and reality to warrant the
issuance of a declaratory judgment.”

McInnis-Misenor, 319 F.3d

at 70 (quoting Lake Carriers’ Ass’n v. MacMullan, 406 U.S. 498, 506
(1972)).

This determination ordinarily involves a formalistic

evaluation of (1) the fitness of the issues for judicial decision,
and

(2)

the

consideration.

hardship
Id.

to

the

parties

of

withholding

court

The “fitness” inquiry concerns “whether the

necessary factual predicate is sufficiently matured to allow a
court to resolve the issue presented.” Gastronomical Workers Union
Local 610 & Metro. Hotel Ass’n Pension Fund v. Dorado Beach Hotel
Corp., 617 F.3d 54, 61 (1st Cir. 2010); see also Ernst & Young v.
Depositors Econ. Prot. Corp., 45 F.3d 530, 536 (1st Cir. 1995)
(“[T]he critical question concerning fitness for review is whether
the claim involves uncertain and contingent events that may not
occur

as

anticipated

or

may

not

occur

at

all.”

(quoting

Massachusetts Ass’n of Afro–American Police, Inc. v. Boston Police
Dep’t, 973 F.2d 18, 20 (1st Cir. 1992))).

The “hardship” inquiry

Civil No. 14-1767 (FAB)

18

asks whether the challenged action creates a “direct and immediate
dilemma” for the parties.

Id.

Defendants argue that judicial intervention as to the Peñuelas
Ordinance is premature because the Ecosystems Landfill in Peñuelas,
where AES-PR alleges that Agremax will be used, is still under
construction and is thus neither permitted nor operational.
Docket No. 37 at pp. 10-14.

See

Defendants argue that AES-PR is

requesting a remedy based on a “hypothetical scenario that the
Ecosystems Landfill in Peñuelas will obtain a permit from the EQB.”
Id. at p. 14.

Even assuming that the Peñuelas Ordinance is not yet

applicable to the pre-operational Ecosystems Landfill,9 it is
undisputed that the Peñuelas Ordinance has been applied to prevent
AES-PR from delivering Agremax to the PV Landfill in Peñuelas. See
Docket No. 51.10

This blockade allegedly hindered AES-PR’s ability

to fulfill its contract with PV Waste.
The

Court

finds

defendants are ripe.

that

the

See id. at pp. 6-7.

claims

against

the

Peñuelas

Because the basis of defendants’ ripeness

challenge was the lack of enforcement of a law that has since been

9

That the Municipality of Peñuelas has, on the basis of the
Peñuelas Ordinance, sought to enjoin the use of Agremax at the
Ecosystems Landfill belies defendants’ contention that the
Ecosystems Landfill’s lack of permits renders judicial intervention
premature. See Docket No. 45 at p. 12; Docket No. 45-1.

10

AES-PR’s motion to supplement the summary judgment record
provides the facts surrounding the enforcement of the Peñuelas
Ordinance at the PV Landfill on June 26, 2015. See Docket No. 51.
A court may look beyond the pleadings to assess the ripeness of the
plaintiff’s claim. See Valentin, 254 F.3d at 363-64.

Civil No. 14-1767 (FAB)

19

enforced, the Court need not belabor the analysis. AES-PR’s claims
against the Peñuelas defendants involve non-hypothetical acts, so
the controversy is fit for adjudication.

The application of the

Peñuelas Ordinance has already financially harmed AES-PR, whose
existing contracts languish due to regulatory constraints, and
withholding

judicial

review

vindication of that injury.

would

serve

only

to

delay

the

See Gastronomical Workers, 617 F.3d

at 61.
Thus, the claims against the Peñuelas defendants are ripe for
adjudication.
Timeliness
Finally, defendants argue that AES-PR’s claims against the
Peñuelas defendants are not timely.

(Docket No. 37 at pp. 15-16.)

Defendants correctly assert that in Puerto Rico, the statute of
limitations for claims brought pursuant to 42 U.S.C. § 1983 is one
year.

See id. at p. 15; Morales-Tañon v. P.R. Elec. Power Auth.,

524 F.3d 15, 18 (1st Cir. 2008).

Because the Peñuelas Ordinance

was enacted on April 10, 2013, more than one year before AES-PR
filed the complaint on October 16, 2014, defendants argue that the
claims against the Peñuelas defendants should be dismissed as timebarred.

(Docket No. 37 at pp. 15-16.)

In opposition, AES-PR contends, among other things, that the
statute-of-limitations clock began to run upon enforcement, not
enactment, of the Peñuelas Ordinance. See Docket No. 45 at pp. 19-

Civil No. 14-1767 (FAB)
22.

20

According to AES-PR, the limitations period was not triggered

until “the Peñuelas defendants sought to enforce the [Peñuelas]
Ordinance to preclude the use of AES-PR’s CCRs at the Ecosystems
Landfill.”

Id. at p. 20.

Specifically, AES-PR refers to the suit

that the Peñuelas defendants filed against Ecosystems Waste on
August 18, 2014, which sought to enjoin the use of Agremax at the
construction-phase Ecosystems Landfill.

See id.

Federal law, which governs the date of accrual for a section
1983 action, provides that the limitations period begins to run
when the party knows or should know of the injury on which the
action is based. See Asociacion de Suscripcion Conjunta del Seguro
de Responsabilidad Obligatorio v. Juarbe-Jimenez, 659 F.3d 42, 50
(1st Cir. 2011); see also Gilbert v. City of Cambridge, 932 F.2d
51, 57 (1st Cir. 1991) (“The limitation period begins to run upon
the invasion of the plaintiffs’ interests.”).

In determining the

date of accrual, courts first identify the actual injury on which
the

plaintiff

rests

the

cause

of

action.

See,

e.g.,

Marrero-Gutierrez v. Molina, 491 F.3d 1, 5 (1st Cir. 2007).
Here, the injury of which AES-PR complains centers on the
application of the Ordinances to landfills with which AES-PR
contracts.

In Peñuelas, the restriction on AES-PR’s CCRs did not

occur until at least August 18, 2014, when the Municipality filed
suit against Ecosystems Waste.
believe

that

AES-PR

knew

or

Defendants provide no reason to
should

have

known

of

the

facts

Civil No. 14-1767 (FAB)

21

constituting the violations of its rights any sooner. Because AESPR filed suit on October 16, 2014, (Docket No. 1), within two
months of the invasion of its interests, AES-PR’s claims against
the Peñuelas defendants are timely.
In sum, for these reasons, defendants’ motion to dismiss,
(Docket No. 37), is DENIED.
AES-PR’S MOTION FOR SUMMARY JUDGMENT
AES-PR moves for summary judgment on its federal and state
preemption claims.

(Docket No. 29.)

A court will grant summary

judgment if the moving party shows, based on the materials in the
record, “that there is no genuine dispute as to any material fact
and [it] is entitled to judgment as a matter of law.”
P. 56(a).

Fed. R. Civ.

A fact is “material” if it potentially affects the

outcome of the case.

Calero–Cerezo v. U.S. Dep’t of Justice, 355

F.3d 6, 19 (1st Cir. 2004).

A factual dispute is “genuine” if its

resolution could favor either party at trial.

Id.

At the summary

judgment stage, a court must construe the entire record in a light
most hospitable to the nonmoving party and draw all reasonable
inferences in its favor.

DePoutot v. Raffaelly, 424 F.3d 112, 117

(1st Cir. 2005).
Federal Preemption
A federal preemption inquiry begins with the Supremacy Clause,
which requires that federal law be “the supreme Law of the Land.”
U.S. Const., Art VI, cl. 2.

“Any state law that contravenes a

Civil No. 14-1767 (FAB)

22

federal law is null and void.”
448, 452 (1st Cir. 2014).11

Tobin v. Fed. Exp. Corp., 775 F.3d

Pursuant to this principle, “Congress

has the power to preempt state law.”
S. Ct. 2492, 2500 (2012).

Arizona v. United States, 132

To determine the preemptive effect of a

federal law, courts look to the intent of Congress.

Antilles

Cement Corp. v. Fortuño, 670 F.3d 310, 323 (1st Cir. 2012); Grant’s
Dairy-Me., LLC v. Comm’r of Me. Dep’t of Agric., Food & Rural Res.,
232 F.3d 8, 14 (1st Cir. 2000) (“Congressional intent is the
touchstone of preemption analysis.”).
Federal law may preempt state law either “expressly or by
implication.” Grant’s Dairy, 232 F.3d at 15. “Express preemption”
occurs when “a federal statute explicitly confirms Congress’s
intention to preempt state law.”

Id.

In the absence of an express

preemption provision, courts look to “the structure and purpose of
the statute” to determine whether Congress intended preemption to
occur.
forms:

Antilles, 670 F.3d at 323.

“Implied preemption” takes two

“field preemption” and “conflict preemption.”

Dairy, 232 F.3d at 15.

Grant’s

“Field preemption” occurs when Congress

creates a federal regulatory scheme that is “so pervasive” as to
evidence its intent to occupy the regulated field without state
supplementation. See id. “Conflict preemption” occurs either when

11

For purposes of the Supremacy Clause, “the laws of Puerto Rico
are the functional equivalent of state laws,” Antilles, 670 F.3d
at 323, and “the constitutionality of local ordinances is analyzed
in the same way as that of statewide laws,” Hillsborough Cnty. v.
Automated Med. Lab., Inc., 471 U.S. 707, 713 (1985).

Civil No. 14-1767 (FAB)

23

“compliance with both state and federal regulations is impossible”
or when “state law interposes an obstacle to the achievement of
Congress’s discernible objectives.”

Id.

Preemption is a “strong medicine,” that is “not casually to be
dispensed.”

Id. at 18.

A presumption against preemption applies,

particularly in cases where Congress has legislated in a field
which the states have traditionally occupied.
Elevator Corp., 331 U.S. 218, 230 (1947).

Rice v. Santa Fe

In those cases, courts

“start with the assumption that the historic police powers of the
States [are] not to be superseded by the Federal Act unless that
was the clear and manifest purpose of Congress.”

Id.

According to AES-PR, this case is one of conflict-obstacle
preemption.

See Docket No. 30 at p. 17.12

AES-PR argues that the

Ordinances are preempted because they ban an activity that RCRA
authorizes and encourages - namely, the beneficial use of CCRs.
See Docket No. 1 at pp. 11-15; Docket No. 30 at pp. 18-23.

In

order to determine whether the Ordinances frustrate the purposes of
RCRA, the Court must consider the purpose of the statute as a
whole.

Gade v. Nat’l Solid Wastes Mgmt. Ass’n, 505 U.S. 88, 98

(1992); see Grant’s Dairy, 232 F.3d at 15 (beginning the “obstacle
to

12

accomplishment”

brand

of

conflict

preemption

analysis

by

RCRA contains no express preemption provision, and the statute
evidences no congressional intent to occupy the entire field of
waste management. In fact, as discussed infra, Congress explicitly
contemplates state and local participation.

Civil No. 14-1767 (FAB)

24

considering the relevant objectives of the federal regulation at
issue).
RCRA Overview
The Resource Conservation and Recovery Act of 1976 (“RCRA”),
42 U.S.C. §§ 6901 et seq., is a “comprehensive environmental
statute that governs the treatment, storage, and disposal of solid
and hazardous waste.”
(1996).

Meghrig v. KFC W., Inc., 516 U.S. 479, 483

When it enacted RCRA, Congress was primarily concerned

with establishing the framework for a national system to ensure
“the safe management of hazardous waste.”
E.P.A., 824 F.2d 1177, 1179 (D.C. Cir. 1987).13

Am. Min. Cong. v.
Congress was also

concerned with the “rising tide of scrap, discarded, and waste
materials.” 42 U.S.C. § 6901(a)(2).

While acknowledging that “the

collection and disposal of solid wastes should continue to be
primarily the function of State, regional, and local agencies,”
Congress determined that the country’s waste disposal problems
“have become a matter national in scope” and thus “necessitate
Federal action.”

Id. at § 6901(a)(4).

The Act thus embraces a

cooperative federalism scheme, Chico Serv. Station, Inc. v. Sol

13

RCRA thus declares as “national policy” that the generation of
hazardous waste “is to be reduced or eliminated as expeditiously as
possible,” and that hazardous waste nevertheless generated “should
be treated, stored, or disposed of so as to minimize the present
and future threat to human health and the environment.” 42 U.S.C.
§ 6902; see Furrer v. Brown, 62 F.3d 1092, 1098 (8th Cir. 1995)
(“The overriding purpose of RCRA is clear: to prevent generation of
hazardous waste in the first place, and to dispose of and treat
properly that which is produced.”).

Civil No. 14-1767 (FAB)

25

P.R. Ltd., 633 F.3d 20, 27 (1st Cir. 2011), enlisting the states
and municipalities to work with the federal government to “develop
waste

management

practices

that

facilitate

the

recovery

of

‘valuable materials and energy from solid waste,’” Blue Circle
Cement, Inc. v. Bd. of Cnty. Comm’rs of Cnty. of Rogers, 27 F.3d
1499, 1506 (10th Cir. 1994) (quoting 42 U.S.C. § 6902(a)(11))).
RCRA delineates a bifurcated approach to the regulation of
solid waste:

Subtitle C, 42 U.S.C. §§ 6921–6939e, deals with

“hazardous waste”, while Subtitle D, 42 U.S.C. §§ 6941-6949a, deals
with “nonhazardous waste.”
grave”

federal

regulatory

Subtitle C contemplates a “cradle to
system

governing

the

generation,

transportation, treatment, storage, and disposal of “hazardous
wastes.”

See City of Chicago v. Envtl. Def. Fund, 511 U.S. 328,

332 (1994).

“Nonhazardous wastes,” meanwhile, “are regulated much

more loosely under Subtitle D.”

Id. at 331.

Pursuant to Subtitle

D, federal financial and technical assistance are available for
states that choose to develop solid waste management plans in
accordance with federal guidelines.

See Envtl. Def. Fund v.

E.P.A., 852 F.2d 1309, 1310 (D.C. Cir. 1988).14

Pursuant to RCRA,

the EPA identifies which wastes are hazardous and therefore subject

14

With respect to solid waste collection and disposal, RCRA calls
for federal “financial and technical assistance and leadership in
the development, demonstration, and application of new and improved
methods and processes to reduce the amount of waste and
unsalvageable materials and to provide for proper and economical
solid waste disposal practices.” 42 U.S.C. § 6901(a)(4).

Civil No. 14-1767 (FAB)

26

to Subtitle C regulation.
42 U.S.C. § 6921(a)).

City of Chicago, 511 U.S. at 332 (citing

With respect to coal ash, the EPA took the

drunkard’s path toward regulation.
at 1310-13.

See Envtl. Def. Fund, 852 F.2d

In 1980, through the so-called “Bevill Amendment,”

Congress effectively prevented the EPA from regulating certain
mining wastes under Subtitle C, including “‘[f]ly ash waste, bottom
ash

waste,

slag

waste,

and

flue

gas

emission

control

waste

generated primarily from the combustion of coal or other fossil
fuels.’”
(D.D.C.

Appalachian Voices v. McCarthy, 989 F. Supp. 2d 30, 39
2013)

(quoting

42

U.S.C.

§

6921(b)(3)(A)(i)).

The

Amendment provided the EPA with a timeline for the completion and
submission

of

a

study

to

Congress

to

determine

whether

the

enumerated mining wastes constituted “hazardous waste,” warranting
Subtitle C regulation.

See id.

When the EPA missed its statutory deadline to complete the
Bevill study and report, all mining wastes remained exempt from
Subtitle C regulation for many years. Solite Corp. v. U.S. E.P.A.,
952 F.2d 473, 478 (D.C. Cir. 1991).

After various interest groups

brought suit to force compliance, the EPA commenced and completed
regulatory determinations in 1993 and 2000.

Appalachian Voices,

989 F. Supp. 2d at 40; see 58 Fed. Reg. 42,466 (Aug. 9, 1993) (the
“August

1993

Regulatory

Determination”);

65

Fed.

Reg.

32,214

(May 22, 2000) (the “May 2000 Regulatory Determination”).

On each

occasion,

ash

the

EPA

concluded

that

regulation

of

coal

as

Civil No. 14-1767 (FAB)
“hazardous

waste”

27

under

Subtitle

C

was

inappropriate,

while

indicating that it would continue to assess the need for increased
regulation.

Appalachian Voices, 989 F. Supp. 2d at 40.

In the May 2000 Regulatory Determination, the EPA first
addressed the “beneficial use” of coal combustion wastes.
e.g., 65 Fed. Reg. at 32,229-30.

See,

The EPA listed a number of ways

to repurpose coal combustion wastes beneficially, including waste
stabilization and use in construction products.

Id. at 32,229.

The Agency announced its determination that “national regulation
under

Subtitle

C

or

Subtitle

D

is

not

warranted”

for

coal

combustion wastes used for beneficial purposes, explaining:
We have reached this decision because: (a) We have not
identified any other beneficial uses that are likely to
present significant risks to human health or the
environment; and (b) no documented cases of damage to
human health or the environment have been identified.
Additionally, we do not want to place any unnecessary
barriers on the beneficial uses of coal combustion wastes
so they can be used in applications that conserve natural
resources and reduce disposal costs.
Id. at 32,221.
In 2010, the issue of coal ash regulation resurfaced. The EPA
announced that it was considering whether to govern CCRs as a
“hazardous waste” pursuant to Subtitle C or whether to govern CCRs
as a “non-hazardous waste” pursuant to Subtitle D.

Appalachian

Voices, 989 F. Supp. 2d at 39-40; see 75 Fed. Reg. 35,128 (June 21,
2010) (the “June 2010 Proposed Rule”).

The EPA made clear that in

neither case was it proposing to change the May 2000 Regulatory

Civil No. 14-1767 (FAB)

28

Determination’s federal regulation exemption for beneficially used
CCRs.
of

Id. at 35,160.

CCRs offers

The Agency noted that “[t]he beneficial use

significant

reductions in land disposal.

environmental
Id. at 35,154.

benefits,”

including

Accordingly, the EPA

expressed its “strong[] support” for the beneficial use of CCRs in
an environmentally sound manner.

Id.15

On April 17, 2015, the EPA published a final rule addressing
the disposal of CCRs, which the Agency decided to regulate pursuant
to Subtitle D.

See 80 Fed. Reg. 21,302 (April 17, 2015) (the

“April 2015 Rule”).
establishes

the

Among other things, the April 2015 Rule

EPA’s

new

minimum

national

requirements

for

landfills receiving CCRs for disposal (“CCR landfills”), including
location

restrictions,

liner

design

criteria,

and

structural

integrity requirements. See id. at 21,304-08. The April 2015 Rule
provides that “these are minimum requirements only, and without
preemptive effect; states may therefore impose more stringent
requirements, including the requirement that CCR facilities obtain
a permit.”

Id. at 21,332.

Indeed, the EPA noted that many states

had already elected to develop their own beneficial use programs
and

15

found

that

state

regulatory

oversight

may

provide

“an

The June 2010 Proposed Rule languished until the EPA agreed,
pursuant to a consent decree, to finalize its coal ash regulations
by December 19, 2014. See Citizens Coal Council v. Matt Canestrale
Contracting, Inc., 51 F. Supp. 3d 593, 602 (W.D. Pa. 2014)
(discussing Appalachian, 989 F. Supp. 2d 30).

Civil No. 14-1767 (FAB)

29

additional level of assurance” in addressing site-specific risks.
Id. at 21,330.
The April 2015 Rule expressly does not apply to “practices
that meet the definition of a beneficial use of CCR” or “municipal
solid waste landfills (MSWLFs) that receive CCRs for disposal or
use as daily cover.”

Id. at 21,302.

With respect to the MSWLF

exemption, the EPA recognized that there are MSWLFs that either
accept CCRs for disposal, use CCRs as daily cover, or both.
at 21,341.

Id.

According to the EPA, the new requirements governing

CCR landfills “are modeled” after the existing standards for
MSWLFs, found at 40 C.F.R. § 258, so disposal of CCRs in MSWLFs is
“as protective” as disposal in a CCR landfill.

Id.

Thus, the EPA

concluded that permitted MSWLFs should not be subject to the April
2015 Rule.
With

Id.
respect

to

the

beneficial-use

exemption,

the

EPA

reaffirmed its position in the May 2000 Regulatory Determination
that, for the most part, beneficial uses of coal combustion wastes
do

not

present

environment.

a

significant

Id. at 21,327.

risk

to

human

health

and

the

The EPA noted that the beneficial use

of CCRs is “a primary alternative to current disposal methods,”
which

offers

“significant

environmental

benefits,”

including

“greenhouse gas reduction, energy conservation, reduction in land
disposal” and “reduction in the need to mine and process virgin
materials and the associated environmental impacts.”

Id. at

Civil No. 14-1767 (FAB)
21,329.

The

EPA

30

concluded

that,

on

balance,

beneficially used CCRs is not warranted.

regulation

of

Id.

In doing so, the EPA acknowledged, however, that not all
beneficial

uses

are

created

equally.

In

its

discussion

of

potential risks, the EPA distinguished “encapsulated” uses of CCRs
from “unencapsulated” uses.

See id. at 21,327.

An “encapsulated”

beneficial use is one that “binds the CCR into a solid matrix that
minimizes mobilization into the surrounding environment.”
21,328.

Id. at

Among the examples of encapsulated uses are filler or

lightweight aggregate in concrete, filler in plastics and rubber,
and raw material in concrete and wallboard production.

Id.

The

EPA found that while encapsulated uses “provide benefits and raise
minimal health or environmental concerns,” unencapsulated uses
“have raised concerns and therefore merit[] closer attention.” Id.
at 21,327.
total

“Unencapsulated uses,” which are numerous and range in
use,

include

structural

fills,

soil

modification/stabilization, waste stabilization/solidification, and
aggregate.

Id. at 21,353.

The EPA noted that the placement of

unencapsulated CCRs on land has presented issues similar to those
that prompted the regulation of CCR disposal.
As

an

example

of

a

case

in

which

Id. at 21,327.

“large

quantities

of

unencapsulated CCR were placed on the land in a manner that
presented significant concerns,” the EPA discussed AES-PR’s use of
Agremax in Puerto Rico:

Civil No. 14-1767 (FAB)

31

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.
Id. at 21,328.

While lacking sufficient information to determine

whether this practice caused groundwater contamination, the EPA
noted

that

“the

available

facts

illustrate

several

of

significant concerns associated with unencapsulated uses.”
at 21,328-29.

the
Id.

AES-PR had applied Agremax “without appropriate

engineering controls,” “in volumes that far exceeded the amounts
necessary for the engineering use of the materials,” and in some
cases “in residential areas” and “to environmentally vulnerable
areas, including areas close to wetlands and surface waters and
over shallow, sole-source drinking water aquifers.” Id. at 21,329.
The

EPA

concluded

that

those

practices

would

not

constitute

“beneficial use,” but rather “waste management that would be
subject to the requirements of the [April 2015 Rule].” Id. at
21,329.
To ensure that inappropriate uses, which often occur “under
the guise of ‘beneficial use,’” are regulated as disposal, see id.
at 21,330, the April 2015 Rule establishes criteria to distinguish

Civil No. 14-1767 (FAB)

32

“beneficial use” from “disposal,” see id. at 21,349.16 Any use that
fails to comply with the relevant criteria will be considered
“disposal” of CCRs, subject to all of the requirements in the
disposal regulations, and the user will be considered the owner or
operator of a CCR landfill.

Id.

RCRA Preemption Analysis
As the above authority makes clear, RCRA provides varying
levels of federal oversight in an area traditionally left to state
and local governance.
federal

involvement

Although the statute contemplates greater
in

the

regulation

of

hazardous

wastes,

“Congress appears to have adopted a markedly more circumspect
approach to the problem of non-hazardous solid waste disposal.”
City of Gallatin v. Cherokee Cnty., 563 F. Supp. 940, 943 (E.D.

16

Both “encapsulated” and “unencapsulated” uses must meet the
following criteria:
“(1) [t]he CCR must provide a functional
benefit; (2) [t]he CCR must substitute for the use of a virgin
material, conserving natural resources that would otherwise need to
be obtained through practices such as extraction; (3) the use of
CCR must meet relevant product specifications, regulatory
standards, or design standards when available, and when such
standards are not available, CCR are not used in excess
quantities.” 80 Fed. Reg. at 21,349.
“Unencapsulated” uses involving “placement on the land of
12,400 tons or more in non-roadway applications” must meet an
additional criterion:
(4) “the user must demonstrate and keep
records, and provide such documentation upon request, that
environmental releases to groundwater, surface water, soil and air
are comparable to or lower than those from analogous products made
without CCR, or that environmental releases to groundwater, surface
water, soil and air will be at or below relevant regulatory and
health-based benchmarks for human and ecological receptors during
use.” Id.

Civil No. 14-1767 (FAB)
Tex. 1983).

33

RCRA’s guidelines for the disposal of non-hazardous

waste are in general not mandatory upon the states, though states
do have certain compliance incentives.

See id.

While states are afforded considerable leeway in governing
solid waste disposal, principles of conflict preemption prevent
local laws from imperiling RCRA’s federal goals.
27 F.3d at 1506.

See Blue Circle,

Accordingly, federal courts have consistently

found that a state or local ordinance that “amount[s] to an
explicit or de facto total ban of an activity that is otherwise
encouraged by RCRA will ordinarily be preempted by RCRA.”

See id.

at 1508; cf. City of Los Angeles v. Cnty. of Kern, Civ. No. 06-5094
(GAF) (VBKX), 2006 WL 3073172, at *10 (C.D. Cal. Oct. 24, 2006)
(“Even where a federal statute allows more stringent state and
local regulations, state and local regulations are ordinarily still
preempted if they constitute a ban on an activity that Congress has
encouraged, because in such cases the local ban impedes a federal
objective.”).
Based on this authority, AES-PR argues that the Ordinances are
preempted because they impose flat bans on the beneficial use of
CCRs.

See Docket No. 30 at pp. 15-20.

As discussed below, the

Court finds that the language of neither law is so broad as to
encompass all beneficial uses of CCRs.

AES-PR contends, however,

that even if the Ordinances allow certain uses of CCRs, they are
nevertheless preempted because they ban the use of CCRs as daily

Civil No. 14-1767 (FAB)
cover in landfills.

34

(Docket No. 49 at pp. 9-10.)

But AES-PR

presupposes that the beneficial use of CCRs - particularly, as
daily cover in landfills - is a RCRA-encouraged activity.
Docket No. 49 at pp. 9-10.

See

The Court finds that while RCRA

generally seeks to promote the beneficial use of CCRs, it does not
do so to an extent that a ban on that activity is preempted.

See,

e.g., City of Los Angeles, 2006 WL 3073172, at *10; Welch v. Bd. of
Sup’rs of Rappahannock Cnty., Va., 888 F. Supp. 753, 757 (W.D. Va.
1995).
To be sure, the EPA has steadfastly opted against regulating
the beneficial use of CCRs, in an apparent effort to encourage and
destigmatize such practices.

In the EPA’s opinion, beneficial use

is, for the most part, environmentally and economically sensible.
An agency’s “mere preference,” however, “is vastly different from
legislation forcing states and localities to permit [beneficial
use],” especially when “no such preference for [beneficial use]
appears in the statute itself.”

See Welch, 888 F. Supp. at 758;

accord Constr. Materials Recycling Ass’n Issues & Educ. Fund, Inc.
v. Burack, Civ. No. 08-CV-376 (JD), 2009 WL 205054, at *6 (D.N.H.
Jan. 27, 2009) (“General expressions of policy in federal law,
however, are unlikely to support conflict preemption.”). While the
EPA may wish to encourage companies like AES-PR to find ways to
repurpose their coal combustion waste in an environmentally sound
manner, RCRA in no way mandates this outcome.

Indeed, the Act

Civil No. 14-1767 (FAB)

35

contemplates the disposal of CCRs (in both CCR landfills and
MSWLFs) as well as several other varieties of beneficial uses,
without ever indicating a discernible preference for one over the
other.
In this regard, this case is distinguishable from the RCRA
preemption cases upon which AES-PR relies in its briefs.

For

example, AES-PR cites to Blue Circle Cement, Inc. v. Bd. of Cnty.
Comm’rs of Cnty. of Rogers, 27 F.3d 1499 (10th Cir. 1994), and
Ogden Envtl. Servs. v. City of San Diego, 687 F. Supp. 1436 (S.D.
Cal. 1988), which struck down local laws effectively banning the
treatment or recycling of hazardous waste as preempted by RCRA.
Relevant to those cases, RCRA sets a national policy requiring the
treatment, storage, and disposal of hazardous waste in a manner
that “minimize[s] the present and future threat to human health and
the environment.”
its objective

42 U.S.C. § 6902.

will

be

advanced

by

The Act expressly states that
reducing land

disposal

hazardous waste while encouraging recycling and treatment.
§ 6902(a)(6).

of
Id.

Indeed, land disposal is even prohibited in certain

instances absent EPA approval.

See, e.g., id. § 6924(e).

Here, the Court finds no manifest statutory preference for
beneficial use, let alone one for daily cover.

Nowhere in RCRA or

its accompanying regulations does the EPA indicate that it favors
one type of beneficial use (such as daily cover) over any other.
This lack of directive is especially significant here, where

Civil No. 14-1767 (FAB)

36

defendants have not completely banned CCRs within their boundaries;
they simply have banned one of several possible methods of use or
disposal. See Welch, 888 F. Supp. at 757 (finding EPA’s regulatory
preference for land application of sewage sludge insufficient to
preempt local ordinance that simply banned one of three possible
methods of use or disposal).
Although

agency

regulations

may

preempt

local

laws,

see

Hillsborough Cnty. v. Automated Med. Lab., Inc., 471 U.S. 707, 713
(1985), in such a case the challenged law presumptively is not
preempted, see Welch, 888 F. Supp. at 758 (“Regulations generally
do not preempt state and local laws absent an express statement by
the agency that it intends to do so.”).
of

Appeals

has

noted,

“[c]onflict

As the First Circuit Court

preemption

is

particularly

difficult to show when the most that can be said about the state
law is that the direction in which state law pushes [behavior] is
in general tension with broad or abstract goals” of the federal
law.

See Fitzgerald v. Harris, 549 F.3d 46, 53 (1st Cir. 2008)

(internal quotation marks omitted).

Here, although AES-PR “chants

the conventional ‘obstacle to accomplishment’ mantra, it does not
point to the kind of clear conflict that would warrant such a
finding, or even to a genuine issue of material fact concerning
that point.”

See Grant’s Dairy, 232 F.3d at 18.

Even if the Court were to find that the beneficial use of CCRs
is a RCRA-encouraged activity, the Court disagrees with AES-PR that

Civil No. 14-1767 (FAB)

37

the Ordinances impose a total ban on that activity.

By its terms,

the Peñuelas Ordinance forbids only the use of CCRs as “landfill
material” and is primarily directed at preventing the deposit of
CCRs on land.

See Docket No. 32-2 at p. 8, § 1.

The Humacao

Ordinance, though arguably broader in reach, bans only the use of
CCRs as “filler material.”

See Docket No. 32-1 at p. 9, § 1.

According to the EPA’s various statements on the matter, which are
rife with examples of beneficial uses, the Ordinances do not
scratch the surface of a wholesale prohibition. See, e.g., 80 Fed.
Reg. at 21,328 (non-exhaustive list of encapsulated beneficial
uses);

id.

at

21,353

(non-exhaustive

list

of

unencapsulated

beneficial uses); 65 Fed. Reg. at 32,229 (general examples of
beneficial applications).
presumably

permits

For example, the Peñuelas Ordinance

beneficial

uses

that

do

not

involve

the

placement of CCRs on land - such use in roofing material, use as
insulation, or for certain cement or concrete applications - while
the Humacao Ordinance’s ban on use as “filler material” still
permits non-filler applications - such as waste stabilization and
solidification.

See Docket No. 41 at ¶ 8.

AES-PR contends that defendants’ own admissions establish the
“complete” scope of the bans.

See, e.g., Docket No. 30 at p. 15.

When faced with AES-PR’s allegation that the Ordinances “ban[] any
and all beneficial uses of ‘ash’ resulting from the burning of
coal,” see Docket No. 1 at ¶¶ 69, 74, defendants’ answer admitted

Civil No. 14-1767 (FAB)

38

that the Ordinances “ban the use of ash resulting from the burning
of coal anywhere within the territorial limits” of Humacao and
Peñuelas, see Docket No. 22 at ¶¶ 16, 21.

(Docket No. 49 at pp. 8-

9.) Because an answer is a “pleading,” pursuant to Federal Rule of
Civil Procedure 7(a), AES-PR argues that this admission is binding
on defendants for purposes of summary judgment.

Id. at p. 8.

AES-PR is correct that “a pleading admitting a fact alleged in
an

antecedent

pleading

is

[ordinarily]

treated

as

a

binding

judicial admission,” but “there are limits to what parties can
admit.”
2010).

Harrington v. City of Nashua, 610 F.3d 24, 31 (1st Cir.
The Court is not obligated to accept as binding judicial

admissions statements that are “legal conclusions” or that are
“unclear.”

See id.; accord Commercial Money Ctr., Inc. v. Ill.

Union Ins. Co., 508 F.3d 327, 336 (6th Cir. 2007) (“Judicial
admissions of fact must be deliberate and clear, while legal
conclusions

are

rarely

considered

to

be

binding

judicial

admissions.”); In re Teleglobe Commc’ns Corp., 493 F.3d 345, 377
(3d Cir. 2007) (“To be binding, admissions must be unequivocal.
Similarly, they must be statements of fact that require evidentiary
proof, not statements of legal theories.” (internal citations
omitted)).
Here, defendants’ supposed admission that the Ordinances “ban
the use of ash resulting from the burning of coal,” see Docket
No. 22 at ¶¶ 16, 21, cannot in good faith be understood as an

Civil No. 14-1767 (FAB)
unequivocal

statement

39
regarding

the

scope

of

the

Ordinances,

particularly considering that defendants’ answer is much broader
than AES-PR’s contention that the Ordinances ban “all beneficial
uses” of such ash, see Docket No. 1 at ¶¶ 69, 74 (emphasis added).
Even construing defendants’ answer as acquiescence, the Court “is
not obliged to accept a proposition of law simply because one party
elects not to contest it.”

See Harrington, 610 F.3d at 31.

The

question of whether a local law operates as a total or de facto
prohibition on a RCRA-encouraged activity is for the Court to
decide.

See, e.g., Blue Circle Cement, Inc. v. Bd. of Cnty.

Comm’rs of Cnty. of Rogers, 917 F. Supp. 1514, 1519 (N.D. Okla.
1995) (“The Court must next determine whether the Ordinance amounts
to an ‘explicit or de facto total ban’ on the burning of [hazardous
waste fuels].”); Ogden, 687 F. Supp. at 1446–47 (examining whether
conditional use permit scheme amounted to a de facto ban on
conducting hazardous waste incineration testing).
For these reasons, the Court finds that the Ordinances are not
complete bans on the beneficial use of CCRs and that, in any event,
RCRA does not encourage the beneficial use of CCRs to an extent
sufficient to preempt local laws restricting this activity.

As

such, the Ordinances do not frustrate the purposes of RCRA and are,
therefore, not preempted.

AES-PR’s motion for summary judgment on

the federal preemption claim, (Docket No. 29), is thus DENIED.

Civil No. 14-1767 (FAB)

40

Puerto Rico Law Preemption
AES-PR also moves for summary judgment on its claim that the
Ordinances are preempted by Puerto Rico law.

(Docket No. 29.)

AES-PR argues that “a municipal ordinance may not be enforced if it
conflicts with legislation enacted by the Legislative Assembly of
Puerto Rico.”

(Docket No. 30 at p. 20.)

The Commonwealth has designated the EQB as the agency with the
authority to “exercise, execute, receive and administer delegation,
establish regulations, and implement a permit system in connection
with” RCRA.

P.R. Laws Ann. tit. 12 § 8002g.

With respect to solid

waste management, transportation, and disposal, the EQB has the
authority

to

“adopt,

promulgate,

amend

and

repeal

rules

and

regulations for solid waste disposal” and to “establish the sites
and methods to dispose of such solid waste.” Id. § 8002c(b)(4)(A).
AES-PR contends that EQB authority authorizes the beneficial
use of CCRs, including as an alternative daily cover in permitted
landfills.

(Docket No. 30 at pp. 21-22.)

On May 15, 2014, AES-PR

asked the EQB for authorization to dispose of CCRs in sanitary
landfill systems (“SLSs”) that comply with Subtitle D of RCRA.
(Docket No. 32-8 at p. 11.)
Resolution

R-14-27-20

(the

In August 2014, the EQB issued
“August

2014

Resolution”),

which

delineated the only circumstances in which CCRs generated at the
Guayama Facility (including Agremax) may be deposited, including as
daily cover material in sanitary landfills that are “authorized to

Civil No. 14-1767 (FAB)

41

operate by the EQB with composite or geosynthetic liner and [that]
comply with the design and operation criteria laid down in [40
C.F.R. § 258],” pursuant to Subtitle D of RCRA and parallel
Commonwealth law.

See Docket No. 55-1 at p. 17.

The EQB instructs

that any landfill seeking to receive CCRs for use as daily cover
must first request an amendment of its operating permit from the
EQB and submit an amended operating and emergency plan to the EQB
for approval.

Id.

AES-PR avers that the EQB approved an updated

operating plan for the Coqui Landfill in Humacao authorizing the
use of Agremax (identified as “rock ash”) as an alternative daily
cover.

(Docket No. 30 at p. 22.)

Defendants do not dispute these events, but instead argue that
they

acted

within

their

delegated

restricting the use of CCRs.

authority

in

passing

See Docket No. 40.

laws

Indeed, as

defendants point out, Puerto Rico law permits municipalities to
“regulate the solid waste collection management in harmony with the
environmental policy” of the Commonwealth.

See id. at pp. 6-7

(quoting P.R. Laws Ann. tit. 21 § 4055).
While conceding that the Puerto Rico legislature granted
municipalities the authority to regulate solid waste disposal,
AES-PR argues

that

Commonwealth law.

the

Ordinances

are

not

“in

harmony with”

See Docket No. 30 at p. 23; Docket No. 49 at

p. 11. In support of this argument, AES-PR contends that this case
is analogous to Liberty Cablevision of P.R. v. Municipality of

Civil No. 14-1767 (FAB)

42

Caguas, 417 F.3d 216 (1st Cir. 2005).

At issue in Liberty

Cablevision was the federal Cable Act, which empowered state
governments to designate a “franchising authority” to negotiate
with cable operators seeking to use public “rights-of-way.”
id.

at

219-20.

Pursuant

to

the

Cable

Act,

the

See

designated

“franchising authority” was authorized to grant franchises to cable
companies and to collect a maximum of five percent of gross
revenues as “franchise fees” in exchange for use of the public
“rights-of-way.”

Id.

Puerto Rico had created an agency - the Telecommunications
Regulatory

Board

of

Puerto

“franchising authority.”

Rico

(the

Id. at 220.

“TRB”)

-

to

be

its

Although the TRB was

collecting fees pursuant to its franchise agreements with cable
companies, several municipalities in Puerto Rico began to impose
five percent fees for use of the same “rights-of-way.”
Together, these fees exceeded Congress’s explicit cap.

Id.

See id.

at 221. Based on federal conflict preemption principles, the First
Circuit Court of Appeals held that the federal Cable Act preempted
the municipalities’ attempts to charge additional franchise fees.
See id. at 221-22.
After announcing its holding, the First Circuit Court of
Appeals went on to address the municipality’s flawed arguments for
upholding their fee ordinances.

For example, the municipalities

had argued that they were entitled to compensation as “owners” of

Civil No. 14-1767 (FAB)
these rights-of-way.

43

In rejecting this argument, the court noted

that municipalities possess no inherent powers, but derive them
from the state.

Id.

The court further noted that, pursuant to

Puerto Rico law, municipal ordinances must be “in harmony with”
Commonwealth law and that Commonwealth law prevails in cases of
conflict.

Id. at 222.

There, because Puerto Rico had created the

TRB as its “sole franchising authority,” the court found that “the
municipalities’ attempts to regulate cable companies by charging
franchise fees . . . conflict with Puerto Rico legislation and
necessarily fail.”

Id. (emphasis added).

The Court pointed out

that the Commonwealth had not, during the relevant time period,
enacted legislation enabling the municipalities to assess fees for
use of the public “rights-of-way.”

Id. at 222-23 & n.8.

The Court finds that Liberty Cablevision is distinguishable
and

unavailing

for

AES-PR.

In

Liberty

Cablevision,

the

municipalities lacked state-granted authority, whereas here, Puerto
Rico’s

Legislative

Assembly

has

specifically

permitted

municipalities to regulate in the arena of solid waste management.
In any event, the relied-upon language of Liberty Cablevision is
dicta, because the case was decided on federal preemption grounds.
Its holding does not support AES-PR’s argument that municipal
ordinances

restricting

certain

uses

of

CCRs

are

necessarily

preempted by a state agency’s delineation of the conditions under
which CCRs may be properly disposed.

Civil No. 14-1767 (FAB)

44

Without further support or elaboration, the Court declines to
strike down the Ordinances as out of “harmony” with Commonwealth
law, particularly because Commonwealth law permits both the EQB and
municipalities to regulate in this arena.
In sum, for the above reasons, the Court finds that neither
federal nor Commonwealth law preempt the Ordinances.

AES-PR’s

motion for partial summary judgment, (Docket No. 29), is therefore
DENIED.
CONCLUSION
For the above reasons, the Court GRANTS AES-PR’s requests for
judicial notice, (Docket No. 32; Docket No. 49 at p. 9), DENIES
defendants’ motion for judgment on the pleadings, (Docket No. 37),
and DENIES AES-PR’s motion for partial summary judgment, (Docket
No. 29).
IT IS SO ORDERED.
San Juan, Puerto Rico, October 1, 2015.
s/ Francisco A. Besosa
FRANCISCO A. BESOSA
UNITED STATES DISTRICT JUDGE