COMMONWEALTH OF PUERTO RICO

OFFICE OF THE GOVERNOR

ENVIRONMENTAL QUALITY BOARD

 

RESOLUTION AND NOTIFICATION 

 

In an ordinary meeting held on December 12, 2012 it was submitted for the 

consideration of the Governing Board (GB) of the Environmental Quality Board (EQB)

the Report prepared by the Examining Official, Attorney Fernando Oliveras Barreto, 

related to the public hearing held on October 10, 2012 regarding the Adoption of the 

State Infrastructure Implementation Plan (SIP) for Lead. 

I. RESOLUTION: 

 

After reviewing all the merits of the case, and as per the powers and faculties 

conferred to the EQB by State Law No. 416 of September 22, 2004, better known as the 

Environmental Public Policy Act and its Regulations, this Board hereby DETERMINES:

 To approve the Examining Official’s Report in all its parts, a copy of which is 

included in this Resolution. 

 To approve the Infrastructure SIP for Lead, as per Section 110(a)(2) of the Clean Air 

Act with the changes and modifications recommended in the Examining Official’s 

Report. 

II. RIGHT OF REVIEW: 

 

The party that is adversely affected by a resolution, partial or final order, may 

file a motion for reconsideration of the resolution or order within the term of twenty 

(20) days from the date of the filing of the resolution or order. The agency shall consider 

the motion within fifteen (15) days of its filing. Should it reject it forthright or fail to 

act upon it within (15) days, the term to request review shall recommence from the date 

of notice of such denial, or from the expiration of the fifteen (15)-day term, as the case 

may be. If a determination is made in its consideration, the term to petition for review 

IN RE: 

 

STATE INFRASTRUCTURE 

IMPLEMENTATION PLAN (SIP) FOR 

LEAD SECTION 110(a)(2) OF THE 

CLEAN AIR ACT 

RES. NÚM.: R-12-22-13 

 

RE: PUBLIC HEARING 

FOR THE ADOPTION 

OF THE 

INRASTRUCTURE SIP

 
2

shall commence from the date a copy of the notice of the agency's resolution definitively 

resolving the motion to reconsider is filed in the record of the case. Such resolution shall 

be issued and filed in the record of the case within ninety (90) days after the motion to 

reconsider has been filed. If the agency accepts the motion to reconsider but fails to 

take any action with respect to such motion within ninety (90) days of its filing, it shall 

lose jurisdiction on [of] the same and the term to file judicial review shall commence 

upon the expiration of said ninety (90)-day term, unless the agency, for just cause and 

within those ninety (90) days, extends the term to resolve for a period that shall not 

exceed thirty (30) days.

The adversely affected party that decides not to file a motion for reconsideration 

as described above may if so desired, within the thirty (30) day period from the date of 

the filing of this Resolution, file a motion for judicial review at the Court of Appeals. 

This as per Section 3.15 of State Law No. 170 of August 12, of 1988, known as the 

Administrative Procedures Act, as amended, 3 L.P.R.A. §2165. 

 

NOTIFY by way of certified mail with return receipt the following: 

EPA, Region 2, 290 Broadway, New York, NY 10007-1866; and personally, the following 

officials of the EQB: Attorney Blanche González, Associate Member; Mrs. María de los 

A. Ortiz, Alternate Member; Attorney Anibal Hernández, Chief of the Legal Affairs 

Office; the Air Quality Area; and the Public Hearings Division. 

Given in San Juan, Puerto Rico, on December 12, 2012.

 

 

 

 

REYNALDO MATOS JIMÉNEZ 

VICE-PRESIDENT 

 

I CERTIFY: That I have notified a true and exact copy of Resolution R-12-22-13

to: EPA at the above mentioned address, and all of EQB’s officials by way of internal 

messenger, having filed the original on the file. 

In San Juan, Puerto Rico on December 21, 2012. 

 

SECRETARY 

GOVERNING BOARD 

 
3

COMMONWEALTH OF PUERTO RICO 

OFFICE OF THE GOVERNOR 

ENVIRONMENTAL QUALITY BOARD 

 

EXAMINING OFFICIAL’S REPORT 

 

TO THE HONORABLE GOVERNING BOARD: 

Appearing is the Examining Official, Attorney Fernando Oliveras Barreto, who 

respectfully submits for your consideration the following REPORT: 

 

I. INTRODUCTION 

 

On October 15, 2008, the Federal Environmental Protection Agency (EPA) revised 

the primary and secondary National Air Ambient Quality Standards (NAAQS) for lead 

with 1.5 micrograms per cubic meter (g/m3). According to sections 110(a)(1) and 

110(a)(2), it is required that each State submits a plan that provides for the 

implementation, maintenance, and compliance of a new NAAQS issued, or a revision of 

a NAAQS. 

The Environmental Quality Board, pursuant to the powers granted by its Organic 

Law, Law Number 416 of September 22, 2004, as amended, known as the Environmental 

Public Policy Act, and under the applicable provisions of Law Number 170 of August 

12, 1988, as amended, known as The Uniform Administrative Procedures Act, Law 

Number 454 of December 28, 2000, better known as the Small Business Administrative 

and Regulatory Flexibility Act, as amended, has the intention to submit to the EPA the 

Infrastructure Demonstration for the NAAQS of 2008 for Lead. 

The main objective of the proposed action is to demonstrate the capacity of Puerto 

Rico to implement, maintain, and enforce the NAAQS for Ozone and PM 2.5. 

IN RE: 

 

Infrastructure SIP for Lead as per Section 

110(a)(2) of the Federal Clean Air Act 

 

Air Quality Area of the Environmental 

Quality Board 

 

Proponent 

 

RE: Adoption of the Infrastructure SIP

 
4

II. Summary of the Infrastructure SIP 

 

Sections (a)(1) and (2) of the Clean Air Act (CAA), hereinafter referred as State 

Infrastructure Implementation Plan (SIP), requires the States to present an 

implementation plan to the Administrator of the Environmental Protection Agency 

(EPA) that demonstrates its capacity to implement, maintain, and enforce each of the 

National Ambient Air Quality Standards (NAAQS). Section 110(a)(1) of the Clean Air 

Act details the required time to submit the revisions of the Infrastructure SIP. At the 

same time, Section 110(a)(2) details the elements the State needs to demonstrate its 

authority to implement the plan. Some elements of Section 110(a)(2) specifically 

establish the states’ obligation to demonstrate the capacity to implement, maintain, and 

enforce the air quality standards. These elements are compiled and presented in what is 

known as the Infrastructure SIP and are, but are not limited to the air quality 

monitoring, data analysis and report presentation, resources, consultations, emergency 

procedures, and transport related situations. Such section provides the following: 

(2) Each implementation plan submitted by a State under this Act shall 

be adopted by the State after reasonable notice and public hearing. Each 

such plan shall/- "(A) include enforceable emission limitations and other 

control measures, means, or techniques (including economic incentives 

such as fees, marketable permits, and auctions of emissions rights), as 

well as schedules and timetables for compliance, as may be necessary 

and appropriate to meet the applicable requirements of this Act;

(B) Provide far establishment and operation of appropriate devices, 

methods, systems, and procedures necessary to (i) monitor, compile, 

and analyze data on ambient air quality, and (ii) upon request, make 

such data available to the Administrator;

(C) In elude a program to provide far the enforcement of the measures 

described in subparagraph (A), and regulation of the modification and 

construction of any stationary source within the areas covered by the 

plan as necessary to assure that national ambient air quality standards 

are achieved, including a permit program as required in parts C and D; 

(D)Contain adequate provisions-(i) prohibiting, consistent with the 

provisions of this title, any source or other type of emissions activity 

within the State from emitting any air pollutant in amounts which will-

(l)Contribute significantly to nonattainment in, or interfere with 

maintenance by, any other State with respect to any such national 

primary or secondary ambient air quality standard, or (II) interfere with 

measures required to be included in the applicable implementation plan 

for any other State under part C to prevent significant deterioration of 

air quality or to protect visibility, (ii) insuring compliance with the 

applicable requirements of sections 126 and 115 (relating to interstate 

and international pollution abatement); (E) Provide (i) necessary 

assurances that the State (or, except where the Administrator deems 

inappropriate, the general purpose local government or governments, or 
5

a regional agency designated by the State or general purpose local 

governments for such purpose) will have adequate personnel, funding, 

and authority under State (and, as appropriate, local) law to carry out 

such implementation plan (and is not prohibited by any provision of

Federal or State law from carrying out such implementation plan or 

portion thereof), (ii) requirements that the State comply with the 

requirements respecting State boards under section 128, and (iii) 

necessary assurances that, where the State has relied on a local or 

regional government, agency, or instrumentality for the implementation 

of any plan provision, the State has responsibility for ensuring adequate 

implementation of such plan provision; (F) Require, as may be 

prescribed by the Administrator-(i) the installation, maintenance, and 

replacement of equipment, and the implementation of other necessary 

steps, by owners or operators of stationary sources to monitor emissions 

from such sources, (ii) periodic reports on the nature and amounts of 

emissions and emissions-related data from such sources, and (iii) 

correlation of such reports by the State agency with any emission 

limitations or standards established pursuant to this Act, which reports 

shall be available at reasonable times for public inspection;

"(G) Provide for authority comparable to that in section 303 and 

adequate contingency plans to implement such authority; (H) Provide 

for revision of such plan-(i) from time to time as may be necessary to 

take account of revisions of such national primary or secondary ambient 

air quality standard or the availability of improved or more expeditious 

methods of attaining such standard, and (ii) except as provided in 

paragraph (3)(C), whenever the Administrator finds on the basis of 

information available to the Administrator that the plan is substantially 

inadequate to attain the national ambient air quality standard which it 

implements or to otherwise comply with any additional requirements 

established under this Act; (I) in the case of a plan or plan revision for 

an area designated as a nonattainment a rea, meet the applicable 

requirements of part D (relating to nonattainment areas);(J) Meet the 

applicable requirements of section 121 (relating to consultation), section 

127 (relating to public notification), and part C (relating to prevention 

of significant deterioration of air quality and visibility protection);(K) 

provide for-(i) the performance of such air quality modeling as the 

Administrator may prescribe for the purpose of predicting the effect on 

ambient air quality of any emissions of any air pollutant for which the 

Administrator has established a national ambient air quality standard, 

and (ii) the submission, upon request, of data related to such air quality 

modeling to the Administrator;(L) Require the owner or operator of 

each major stationary source to pay to the permitting authority, as a 

condition of any permit required under this Act, a fee sufficient to 

cover-(i) the reasonable costs of reviewing and acting upon any 

application for such a permit, and (ii) if the owner or operator receives 

a permit for such source, the reasonable costs of implementing and 

enforcing the terms and conditions of any such permit (not including 

any court costs or other costs associated with any enforcement action), 

until such fee requirement is superseded with respect to such sources 

by the Administrator's approval of a fee program under title V; and (M) 

provide for consultation and participation by local political subdivisions 

affected by the plan."
6

Summary of the Compliance Demonstration of the EQB 

with the Elements provided in Section 110(a)(2) 

 

As it may be observed from reading the aforementioned quote, Section 110(a)(2), 

as amended, contains a detailed list of the different requirements to be included in the 

Infrastructure SIP for Puerto Rico in relation to the NAAQS. Next, is a summary of 

the content of the proposed Plan discussing the authority and resources of Puerto Rico

to implement the Infrastructure SIP as per the described provisions in EPA’s guidelines 

with respect to the NAAQS for Ozone and PM 2.5, and conforming to the elements 

contained in the mentioned Section. 

1. Applicable Emissions Limits and Other Control Measures [110(a)(2)(A)] 

 

The EQB has issued standards and rules to apply and enforce the NAAQS and 

other air quality standards. These rules include permit programs and permit fees. The 

following parts of the Regulation for the Control of Atmospheric Contamination 

(RCAC) contain the pertinent standards of these federal requirements: 

Part I: General Provisions

Part II: Approval and Permits

Part IV: Prohibitions

Part V: Fees

Part VI: Rules for Operation Permits covered under Title V

2. Air Quality Monitoring, Compilation, Data Analysis, and Report Presentation 

[110(a)(2)(B)] 

 

Since 1959, Puerto Rico has monitored air contaminants. Previous to the CAA 

of 1970, the Puerto Rico Aqueduct and Sewer Authority (PRASA) conducted air 

sampling. In 1978, the EQB assumed the responsibilities of air ambient monitoring to 

facilitate the identification and control of air contaminants in Puerto Rico. Annually, 

the EQB prepares the monitoring plan as per 40 CFR 40 Part 58.10. The air sampling 

network has a double purpose. First, the plan confirms that the network continues to 

comply with the established requirements by the federal surveillance regulations 

(SLAMS), and that the information obtained from the sampling stations allow to 

adequately classify each of the sampling stations. Second, the plan serves as a directory 

of the actual air monitoring stations in PR (SLAMS), special sampling stations (SPM), 

and of the meteorological parameters conducted in each station. 
7

Puerto Rico’s legal authority to conduct air monitoring is found on Article 9(a) 

Section (4)et seq. of Law 416 of September 22, 2004. Contractual agreements between 

EPA and EQB establish the obligation to operate a sampling network that meets the 

applicable federal regulations. There is no need for any legal authority to authorize the 

data analysis, or the presentation of such data to the EPA. Only the cost subsidies 

(GRANT) establish the obligation to provide the data to the EPA. The EQB reports and 

will continue to report the air quality data through its air quality system (AQS) of the 

EPA. 

3. Compliance and Air Emission Permits [110(a)(2)(C)] 

 

The EQB has established standards that govern the application of control 

measures, including compliance plans, and programs that regulate the construction and 

modification of fixed emission sources (EPA Region 2 is the PSD permit program 

authority for PR). The following parts of the RCAC contain the pertinent provisions 

for the federal requirements: 

Part I: General Provisions

Rule 103: Emission Sources Monitoring, Logs, Reports, Sampling, and 

Test Methods; 

Rule 105: Malfunction

Rule 106: Test Methods

Rule 107: Emergency due to Air Contamination

Rule 108: Equipment for the Control of Air Contamination

Rule 109: Notice of Violation

Rule 111: Petitions, Hearings, Public Notice

Rule 112: Certifications/Compliance Determinations

Rule 115: Sanctions

Rule 119: Derogation

Rule 120: Separability Clause

Part II: Permit Approval 

Rule 201: Site Location Approval 

Rule 202: Air Quality Impact Analysis

Rule 203: Construction Permit for an Emission Source

Rule 204: Operation Permit for an Emission Source

Rule 205: Compliance Plans for Existing Emission Sources

Rule 207: Continued Compliance Responsibility

Part IV: Prohibitions
8

Part V: Fees

Rule 501: Permit Fees

Rule 502: Excess Emissions Fees

Rule 503: Test Fees 

Rule 504: Modifications 

Part VI: Rules for the Operation Permits for Sources Covered under Title V

4. Interstate Transport [110(a)(2)(D)] 

The EQB certifies that emissions in PR do not contribute to the nonattainment 

of Lead in other states, and do not interfere with the maintenance of the NAAQS in 

other states. Puerto Rico is not within the continental United States; there are no 

adjacent states or territories that have nonattainment areas for Lead. However, the 

RCAC establishes that in compliance with its duties, the Air Quality Area shall have 

and may exercise the faculty to: “Establish, revise, or modify the emission limits, the 

emission control standards, or the control measures of fixed sources or facilities in areas 

of PR in which such sources or facilities significantly contribute to the non-compliance 

of an air quality standard, or significantly contribute to a significant deterioration of 

the air quality in PR or another State. However, it is not required by virtue of the 

current regulation, to be less restrictive with the source or facility as per the current 

article, or by the enacted rules and regulations”. 

5. Resources, Conflict of Interests, and Emergency Episodes [110(a)(2)(E)] 

 

The EQB has sufficient personnel, funds, and the authority under state law to 

conduct an implementation plan. The funds are obtained by way of the Federal Grant 

through Article 105 of the Clean Air Act. Likewise, the local government has its own 

responsibilities and privileges with respect to the protection of the air quality established 

by the Puerto Rico Legislature. The EQB rests in the complete legal and regulatory 

authority as indicated in this document. The EQB is the only agency responsible for the 

adequate implementation of the plan. 

6. Reports and Sampling of Fixed Emissions Sources 

 

The EQB requires monitoring of the air contaminants as part of its construction 

permit program. Some emission sources are required to present the periodic inventories 

and annual emissions. The data is used in the air dispersion models that help PR to 
9

prepare the revisions of the SIP. All the emissions information is available for review 

during a reasonable period of time. The following parts of the RCAC contain the 

pertinent standards for the federal requirements: 

Part I: General Provisions

Rule 103: Emission Sources Monitoring, Logs, Reports, Sampling, and 

Test Methods;

Rule 104: Available Emissions Data for Public Participation

Rule 106: Test Methods

Rule 108: Equipment for the Control of Air Contamination

Rule 109: Notice of Violation

Rule 111: Petitions, Hearings, Public Notice

Rule 112: Certification / Compliance Determinations

Part II: Permit Approvals

Rule 201: Site Location Approval 

Rule 202: Air Quality Impact Analysis

Rule 203: Construction Permit for an Emission Source

7. Faculties and Emergency Contingency Plans [110(a)(2)(G)] 

The EQB has the faculty to issue an emergency order to persons that are causing,

or contributing to atmospheric contamination to reduce its emissions with the purpose 

of eliminating the condition, or to immediately suspend the contaminating emissions. 

Also, the EQB maintains the information on air contamination in a site readily accessible 

for the public on EQB’s website (http://www.jca.gobierno.pr). On a regular basis, 

newsletters on weather alerts and air quality are publicized to warn the public of bad 

air quality days, including alerts on particulate material. The following parts of the 

RCAC contain provisions applicable to this federal requirement: Part I: Rule 107: 

Emergency due to Air Contamination.

8. SIP Revision due to Revisions of the National Air Ambient Quality Standards, 

or due to New Compliance Methods [110(a)(2)(H)] 

 

The EQB is committed to present revisions of the SIP when the air quality 

standards are revised or provided by EPA. 
10

9. SIP Revisions for New Nonattainment Areas [110(a)(2)(I)] 

 

The EQB is committed to present SIP revisions when an area in PR is designated 

as a nonattainment for an air quality standard. The EPA Region 2 is responsible for the 

construction permit program of new nonattainment sources. This program contains the 

requirements to obtain an approval permit for air contaminating sources in Puerto Rico 

before the construction of a facility, and before modifying an existing facility. 

10. Consultation and Public Notice [110(a)(2)(J)] 

 

The EQB, as part of the SIP revision process, consults local and state agencies, 

and establishes the necessary memorandum of agreement. The EQB consults other state 

agencies, local agencies, and non-governmental organizations, as well as environmental 

organisms of other States with respect to air quality. 

The EQB informs the public daily on particulate levels by way of e-mails, press 

releases, and the media. Every day, the air quality level is publicized on the EQB 

website. Also, the EQB website maintains information on the quality, graphics, and 

summaries on the air quality of Puerto Rico from previous years. This tool allows the 

public to learn about the air quality in the long term and how it compares to previous 

years. The EQB is committed to maintaining the public information and education 

programs that satisfy the requirements of Section 127.

11. Dispersion Models and Report Presentation [110(a)(2))L)] 

 

The EQB is the authority in PR to conduct air dispersion modeling as per 

indicated in the LAL, to demonstrate compliance with such and meet the NAAQS. All 

the information related to mathematical modeling or air quality is presented and 

reported to the EPA as part of the federal subsidy compromise. 

12. Fees for Mayor Source Permits [110(a)(2)(L)] 

 

The EQB annually evaluates the fees in order for them to suffice and to be the 

main source of income to cover the permit program’s costs in Puerto Rico. The EQB 

will oversee that any payment made under this chapter is used only for the permit 
11

program’s costs. When a source requests a modification, an administrative change, or a 

minor modification to the Title V permit, the source is paid per tonnage. The Governing 

Board of the EQB has issued various resolutions that provide for the annual payment 

of the actual emissions based on a fixed rate per tonnage. (R-97-47-1 and R-03-13-23; 

ri-0602, R-06-17-8). The following parts of the RCAC contain the related standards as 

per the federal requirements: Part VI: Rules for the Operation Permits of Sources 

Covered under Title V. 

 Rule 610: Determination of Fees and Certifications

13. Consulting Other Local Agencies [110(a)(2)(M)] 

 

The EQB has various cooperation agreements and memorandums of agreement 

with other agencies and local organizations. Consulting different organizations is a 

normal part of the process conducted by the EQB to develop SIP revisions. 

III. Procedural Tract 

 

After the draft of the Infrastructure SIP for Lead was prepared by the Air 

Quality Area, the EQB determined on a preliminary basis that the document as was 

described previously, satisfies the principal objective of demonstrating Puerto Rico’s 

capacity to implement, maintain, and enforce the NAAQS for Lead. 

In consequence the public participation process and final analysis was initiated 

with the purpose of obtaining the final approval of the Plan in compliance with the 

Environmental Public Policy Act, Law 9 of June 18, 1970, as amended, and in 

compliance with the standards provided in the Uniform Administrative Procedures Act, 

3 L.P.R.A. 2181, and Rule 26 of the Administrative Hearings Process Regulations of the 

Environmental Quality Board. 

In response to the aforementioned legal and regulatory provisions, two (2) public 

notices were publicized in two (2) general circulation newspapers announcing the 

intention of the EQB to approve the amendments of the RCAC. The public notice 

included a description of the proposed amendments, and expressed the intention of 

approving them, and established the date and time of the public hearing for the public 

participation, and interested or affected parties. Likewise, it established the place and 
12

form in which the relevant documents may be examined physically as well as through 

the Internet. 

The Public Hearing of the case was held on October 10, 2012 in the Public 

Hearings Room of the Environmental Quality Board, as disposed in the public notices. 

It was presided by the undersigned, Attorney Fernando Olivero Barreto, who was 

previously appointed by the Governing Board to receive the comments from the general 

public, the proponents, the EPA, the Air Quality Program, and any other interested 

person, with the purpose of filing a report containing the findings of the process and 

the appropriate recommendations of the executed process. 

No deponents appeared at the hearing. However, the Environmental Protection 

Agency submitted afterwards an analytic document containing their commentaries and 

recommendations to the proposed Plan, and with such the matter was submitted for 

analysis and final disposition. 

IV. Commentaries and Recommendations of the Deponents 

 

The commentaries and suggestions of the Environmental Protection Agency 

were analyzed and commented by the Air Quality Program, as required. Next is a 

summary of the commentaries presented by the EPA and the replies made by the 

Program. Let’s see: 

 

EPA Comment: 

 

H. Air Quality Monitoring, Compilation, Data Analysis, and Reporting.'

PREQB should reference the latest monitoring plan submitted to EPA and EPA’s latest 

approval of the plan. We need a copy of the Puerto Rico Public Policy Environmental 

Act as amended by Law 416 of September 22, 2004. The wording in the first paragraph 

is a little confusing.

Program Recommendation: 

We recommend that a copy of Law 416 be sent to the EPA. 

EPA Comment: 

III.Enforcement and Stationary Source Permits:

PREQB should mention that they are subject to the Federal Implementation Plan PSD 

requirements in 40 CFR 52.21. Puerto Rico is still obligated to adopt and submit its 

own program PSD program and will not get credit for fully satisfying this 110 element 

unless they do so.
13

Program Recommendation: 

We recommend to include a clarification that reads as follows: The sources affected by 

PSD Program are subject to the Federal Implementation Plan PSD requirements in 40 

CFR section 52.2.1.

EPA Comment: 

IV.Interstate Transport:

PREQB should include the following language to provide additional justification for 

not having to address interstate transport:

The physical properties of Ph prevent Pb emissions from experiencing the same 

travel or formation phenomena PM 2.5 or ozone. More specifically, there is a

sharp decrease in Pb concentrations at least in the coarse fraction, as the distance

from a Pb source increases.

 

Program Recommendation:

We recommend including a language that reads as follows: 

The physical properties of lead prevent lead emissions from experiencing the 

same travel or formation phenomena as PM2 or ozone. More specifically there 

is a sharp decrease in lead concentrations, at least in the coarse fraction, as the 

distance from a lead source increases.

EPA Comment: 

VII. Emergency Powers and Contingency Plans:

PREQB should also mention that it has the ability to adopt regulations based on 

nonattainment areas.

Program Recommendation:

We recommend including a language that reads as follows: 

The PREOB also has the authority to provide through regulation adequate 

contingency measures in nonattainment and limited maintenance areas to 

establish plans for responding to elevated pollutant levels in such areas.

EPA Comment: 

VIII. SIP Revisions for Revised Air Quality Standards or New Attainment Methods:

PREQB should also mention the CAA Section 105 Grant Work Plan and the 

commitments to implement and revise various SIPs

Program Recommendation:

We recommend including a language that reads as follows: 

The CAA Section 105 Grant Work Plan prepared annually by PREQB includes

specific commitments to implement and revise the SIPs when necessary.
14

EPA Comment: 

XI. Air Quality Modeling and Reporting:

PREQB should demonstrate that they have the technical capability to conduct air 

quality modeling in order to assess the effect on ambient air quality of relevant pollutant 

emissions; and that they can provide relevant data as part of the permitting and NAAQS 

implementation processes.

Program Recommendation:

We recommend including a language that reads as follows: 

PREQB have the technical and personnel resources to conduct air quality

modeling in order to assess the effect on ambient air quality of relevant pollutant 

emissions: and can provide relevant data as part of the permitting and NAAQS 

implementation process. PREQB already prepared the air quality modeling for 

the lead designation for Puerto Rico. This modeling was approved by the EPA's 

air modeling personnel.

EPA Comment: 

XII. Major Stationary Source Permitting Fees:

PREQB should include the following language of when the Puerto Rico Title V 

permitting program was approved.

Part VI: Operations Permits Rules for Title V Sources of the RCAP were 

approved by EPA on February 26, 1996 (61 FR 7073).

Program Recommendation:

We recommend including a language that reads as follows: 

Part VI of the RCAP: Operations Permits Rules for Title V sources were 

approved by EPA on February 26, 1996 (61 FR 7073

V. Legal Analysis, Conclusions, and Recommendations 

Due to the urgent need to conserve our environment, the Constitution of Puerto 

Rico established as public policy “the most efficient conservation of our natural 

resources, and the best use of them for the benefit of the general community. Art. VI, 

Sec. 19|Const. E.L.A., L.P.R.A. Volume 1. See, Misión Ind. P.R. v. J.P. 142 D.P.R. 656, 

676 (1997); Paoli Méndez v. Rodríguez 138 D.P.R. 449, 460 (1995). On repeated 

occasions, the Supreme Court has affirmed that the cited constitutional disposition does 

not constitute solely “the expression of a famous quest”, nor it is reduced “to a mere 

postulate of principles”. Misión Ind. P.R. v. J.C.A. D.P.R. 908, 919-20 (1998); Paoli 

Méndez v. Rodríguez, supra, pg. 460, citing J. Trías Monge, Historia Constitucional de 

Puerto Rico, San juan Ed. U.P.R., 1982 Vol. Ill, pg. 235. “It is, more so, a mandate that 

obliges all the components of the State and prevails over any other statute, regulation, 

or order that is contrary to it”. Misión Ind. P.R. v. J.C.A, supra, pg. 919.
15

More so, it has affirmed the established environmental public policy in the 

Constitution of Puerto Rico “fixes in an unquestionable manner the main judicial 

criteria to judge the validity or interpret the meaning of any standard or decision relative 

to the use or protection of the natural resources formulated by the Legislative 

Conference or by any other agency, department, municipality, or government 

instrumentality”. Id., pg. 919-20. 

After almost two decades of having established the referred mandate, it was 

reaffirmed by the Legislative Conference by adopting the Environmental Public Policy 

Act, Law Number 9 of June 18, 1970 (Law No. 9)1. 12 L.P.R.A. 1121 et seq. (ed.2003). 

Municipio de Loíza v. Sucesión Marcial Suárez. 154 D.P.R. 333. 348 (2001).

Also, Law No. 9 demanded that the departments, agencies, public corporations, 

municipalities, and state instrumentalities to interpret, implement, and administer all 

the laws and regulatory bodies of the country “in strict conformity” with the 

aforementioned public policy. Article 4 of Law No. 9, 12 L.P.R.A. sec. 1124 (ed 2003)2. 

See also, Misión Ind. P.R. v. ].C.A., supra, pág. 921. Municipio de Loíza v. Sucesión 

Marcial Suárez, supra, pág. 348.

In accordance with Law 416 about the Environmental Public Policy, the 

Environmental Quality Board has the main function to protect and conserve the 

environment, using wisely and judiciously the necessary resources to impede or 

eliminate harm that can affect it, maintaining a balance between economic development 

and the environment. To obtain such objective, the EQB has a wide faculty to issue 

regulations with the main purpose of establishing standards that minimize 

environmental damage, and that establish the controls for contaminating activities. 

B. 

The administrative agencies hold the faculty that, in its case, the Legislative 

Conference delegates to them to adopt rules of legislative character whose effect 

transcend the general community. Caribe Comms., Inc. v. P.R.T.Co., 157 D.P.R. 203, 

 

1 Law No. 9 was substituted y Law No. 416 of September 22, 2004. 12 L.P.R.A. 8001 et seq. However, at the time 

of adoption of Regulation 4860, Law No. 9 was in place. Law No. 416 maintained essentially the dispositions of 

Law No. 9 to which are being referred. 

2 Idem. 
16

211 (2002). See also, Asoc. Fcias. Com. v. Depto. de Salud, 156 D.P.R. 105, 130-32 (2002); 

f. P. v. Frente Unido Pro Defensa del Valle de Lajas, 165 D.P.R. 445, 469-70 (2005). In 

Administrative Law, “[a] legislative rule is one that creates rights, imposes obligations, 

and establishes a pattern of conduct with a force of law”. Asoc. Fcias. Com. v. Depto. 

De Salud, supra, pg. 146, citing Mun. de San Juan v. ].C.A., 152 D.P.R. 673, 692 (2000).

The regulatory action of the agency is directed precisely to delimit the outreach 

of the delegated power, and defines the scope of the administrative action. This way, 

when the enacting law contains wide and general provisions, the publication of the 

regulation defines the reach of its powers. Torres Arzola v. Policía de Puerto Rico, 117 

D.P.R. 204, 211 (1986).

When enacting a regulation, the agencies have to comply strictly with the 

requirements established by law to allow for public participation in the administrative 

decisional process, and give way as such to the expression of those whose interests may 

be affected by way of the administrative action. It is required for the procedural validity 

of a regulatory standard that it is issued in compliance with the procedures set forth in 

the organic law of the agency, or by the special laws. Asoc.de Fcias. Com. v. Depto. de 

Salud, supra, págs. 131-32. The validity of a regulation is subject, in substantive terms, 

to the following: (1) that the agency has the delegated power to regulate; (2) that the 

administrative action is authorized by law; (3) that the regulation promulgated is within 

the wide delegated powers; and (4) that the regulation is not arbitrary or capricious. M. 

& B.S., Inc. v. Depto. Agricultura, 118 D.P.R. 319, 326 (1987).See also, Asoc. de Fcias 

Com. v. Depto. de Salud, supra, pág. 130; Carrero v. Depto. De Educación, 141D.P.R.830, 

837 (1996); Luan Investment Corp. v. Román, 125 D.P.R. 533, 550 (1990).

As per the outlined criteria, first, when determining the validity of a legislative 

rule it is indispensable to examine if in its adoption the agency exceeded the powers and 

faculties that were delegated. For such analysis it is necessary to recur to the habilitating 

law as “a legal mechanism [whereby] it delegates to the agency the necessary powers to 

act in conformity with the legislative purpose”. Amieiro González v. Pinnacle Real Estate 

Group, res. March 26, 2008, 2008 T.S.P.R. 52. pg. 8-9, 173 D.P.R. _ (2008). Véase 

además, Caribe Comms., Inc. v. P.R.T.Co., supra, pg. 211. In other words, it is required 

to precise if the agency’s action conforms to the delegated power and to the public policy 

established by the Legislative Conference. See, Comisionado de Seguros de P.R. v. 
17

P.R.I.A., 168 D.P.R. 659, 667 (2006). In that tenor, in order for the regulation to be 

valid, it shall be in accordance with the statutory provisions under which it was 

promulgated. 

As a last criteria to determine the substantive validity of a regulatory standard, 

it shall be considered if it is arbitrary or irrational. Franco Dominicci v. Depto. de 

Educación. 148 D.P.R. 703. 712 (1999). The Supreme Court has reiterated that it is 

considered invalid a rule that is determined to be arbitrary or capricious for lacking a 

rational connection with the statute that authorizes its creation. 

It is important to point out that the exercise to regulate presupposes the previous 

consideration and interpretation from the administrative organism of the statute, or the 

public policy whose implementation has been commended. The irrationality or 

arbitrariness as elements to deem the substantive validity of a regulatory standard 

implies certain deference towards the construction of a standard that, by way of 

regulation the administrative organisms conducts by means of the legislation whose 

implementation has been mandated. This rests in the notion that the administrative 

agencies, due to the specialty that is attributed to them, are in position to adopt rules 

that adequately adjust to the public policy, or the law commended to apply. 

At the time of formulation and approving a legislative regulation, the agency 

concerned shall have the obligation to comply with the formal process established in 

LPAU, supra, which requires the following a guarantee of the following requirements: 

1) public notice; 2) opportunity for public participation; 3) Submittal of the regulation 

in the State Department for its approval; 4) Publication of the regulation. (3 L.P.R.A. 

sec. 2121-2135); Centro Unido de Detallistas v. Com. Serv. Púb., 2008 T.S.P.R. 116, 17 4 

D.P.R. ______;_Municipio de San juan v. ].C.A., supra. When promulgating this type 

of regulation, the agency shall comply strictly with the requirements set forth. Asoc. 

de Fcias. Com. v. Depto. de Salud, 156 D.P.R. 105 (2002).

Non-legislative rules, on the other hand, clarify and interpret the obligations and 

duties established in the organic law. The jurisprudence has recognized that this type 

of regulation includes interpretative rules and procedural rules. Interpretative rules are 

those that clarify the law and legislative regulations set forth by the agency, also they 

establish the guidelines to guide the public in the interpretation of the law and delimit 
18

the administrative discretion. Asoc. De Maestros v. Comisión, 159 D.P.R. 81, 93 (2003); 

Agosto Serrano v. F.S.E., 132 D.P.R. 866 (1993). This way, the agency approves its 

directives and informal regulations with the purpose of having uniformity in their 

processes. If the interpretative rule is irreconcilable with any existing legislative rule, 

the new rule shall be considered as an amendment to the latter. Municipio de San Juan

v. ].C.A., supra. That being so, interpretative and procedural rules, different from 

legislative rules, do not require to be notified to the public, nor demand the public 

participation process during the adoption process because they don’t affect rights of the 

people outside the agency. 

In procedural matters it is important to point out that as long as the agency 

pretends to adopt, amend, or derogate a rule or regulation, a public notice in English 

and Spanish shall be publicized in no less than one newspaper of general circulation in 

Puerto Rico, and in English and Spanish in the Internet. Provided that, if the adoption, 

amendment, or derogation of the rule or regulation affects a specific community of 

residents, the agency shall also publish the same notice in a regional newspaper that 

circulates in the area where the community is sited. The notice shall contain a brief 

summary or explanation of the purpose of the proposed action, a citation of the legal 

adoption that authorizes such action, and the form, place, days, and hours in which 

public commentaries may be submitted in writing or by way of electronic mail, or to 

request a public hearing about the proposed action with the fundamentals that in their 

judgement the petitioner establishes to make necessary the concession of such public 

hearing, and shall indicate the physical and electronic address where the complete text 

of the proposed regulation to be adopted will be available for public review. When 

receiving commentaries by way of electronic mail, the agency will acknowledge receipt 

by of electronic mail within two (20 work days of having received the commentaries. 

The public notice in the newspaper shall also contain the electronic address of the page 

where the agency has elected to publish the notice in the Internet, and the complete 

text of the regulation. 3 L.P.R.A. sec. 2121. 

The legal provisions previously cited not only establish the requirements that 

the notice of a proposed regulations needs to comply with, but also the scope of public 

participation. It also recognizes the opportunity to submit written commentaries and 

request an administrative hearing, having to concede a term of no less than thirty (30) 

days, counted from the publication date of the notice to submit them. 3. L.P.R.A. 2122. 
19

However, the participation granted to the public is not similar, nor it converts 

the process to one with an adjudicative character. Thus, in terms of the public hearing 

petition, although Section 2.1 of LPAU, supra, confers the opportunity to petition it, 

the celebration of the hearing will depend if the agency discretionally grants it, if the 

organic law prescribes it, or any other law makes it celebration meritorious. 3 L.P.R.A. 

2123. As per these principles, the agency complies with the public participation process 

if it concedes the opportunity to submit written commentaries, without the strict need 

of celebrating a hearing. 

Likewise, the formal regulatory process demands the agency that the rule or 

regulation that is to be adopted or amended, aside from its text, shall contain: 1) the 

legal provision that authorizes its adoption or amendment; 2) a brief and concise 

explanation of the purpose of its adoption; 3) a reference to all the rules and regulation 

that are amended, derogated, or suspended with the approval of the new regulation; and 

4) the date of approval and enforcement. 3 L.P.R.A. sec. 2125. 

In harmony with the aforementioned, a legislative regulation that has not been 

approved conformed to the formal process established in LPAU lacks legal authority. 

Hernández v. Colegio de Optómetras. 157 D.P.R. 332 (2002). As such, the agencies 

covered under LPAU, supra, cannot adopt regulations contrary to the minimum 

provisions set forth by said law. Comisionado de Seguros v. A.E.E.L.A., 2007 T.S.P.R. 

112, 171 D.P.R._.

C. 

After carefully considering the document under our review, we reckon that all 

aspects of form, process, content, and legal requirements described in the preceding 

section are fully complied with in the process followed in relation to the Infrastructure 

SIP for Ozone and PM 2.5 of Puerto Rico. The proposed document complies with the 

substantive provisions, meaning: (1) the EQB has the delegated power to regulate the 

matter at hand; (2) it is evident that the administrative action is authorized by law; (3) 

the promulgated regulation is within the ample powers delegated to the EQB; (4) the 

regulation is not arbitrary nor capricious either in the procedural, nor the substantive 

process. M. & B.S., Inc. v. Depto. Agricultura, 118 D.P.R. 319, 326 (1987). Véanse 

además, Asoc. de Fcias Com. v. Depto. De Salud, supra, pg. 130; Carrero v. Depto. de 
20

Educación, 141 D.P.R. 830, 837 (1996); Luan Investment Corp. v. Román, 125 D.P.R. 

533, 550 (1990).

It is clearly established that Law 416, supra, concedes the EQB the full legal 

authority to establish and enforce the required infrastructure implementation plan 

required by the Federal Clean Air Act. 

Regarding the commentaries presented by the Federal Environmental Protection 

Agency in relation to the content of the draft document, we completely coincide with 

the recommendations presented by the Air Quality Area of the EQB. In attention to 

our analysis, we recommend that the Infrastructure SIP for Lead as per Section 110(a)(2) 

of the Federal Clean Air Act be approved according to its content, only varying those 

elements of content and form recollected in the informed responses offered by the Air 

Quality Area to the EPA comments where there is an expression of acceptance to the 

offered suggestions. 

VI. FINAL RECOMMENDATION 

 

We respectfully recommend the Honorable Governing Board to avail as their own 

the recommendations herein formulated. Consequently, that it imparts its approval to 

the Infrastructure SIP for Lead as per Section 110(a)(2) of the Federal Clean Air Act, 

with the changes and modifications accepted as adequate bye the Air Quality Program 

of the EQB. As modified and approved, proceed to its final edition, and be remitted to 

the Federal Environmental Protection Agency for their approval. 

Given in San Juan, Puerto Rico, today October 29, 2011. 

Attorney Fernando Olivero Barreto 

Examining Official