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 January 31, 2012 regarding the Adoption of the State Infrastructure 

Implementation Plan (SIP) for Ozone and PM 2.5. 

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 Ozone and PM 2.5, 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 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.

IN RE:

STATE INFRASTRUCTURE

IMPLEMENTATION PLAN (SIP) FOR 

OZONE AND PM 2.5 SECTION 110(a)(2) 

OF THE CLEAN AIR ACT

RES. NÚM.: R-12-22-12

RE: PUBLIC HEARING FOR 

THE ADOPTION OF 

THE SIIP

 
2

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-12-22-12 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
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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

According to sections 110(a)(1) and 110(a)(2) of the Federal Clean Air Act, 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. Such document, known as State 

Infrastructure Implementation Plan (Infrastructure SIP) shall demonstrate the capacity and 

authority of the State to enforce the specific air quality standards. 

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 Ozone and PM 2.5. 

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. 

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 

IN RE:

Infrastructure SIP for ozone and Pm 2.5 as 

per Section 110(a)(20 of the Federal Clean 

Air Act 

Air Quality Area of the Environmental 

Quality Board 

Proponent

RE: Adoption of the Infrastructure SIP

 
4

(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 

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 em1ss10n 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);0) Meet the applicable requirements 

of section 121 (relating to consultation}, section 127 (relating to public notification), and 
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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."

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 
6

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. 

The EQB is committed to continue to maintain the atmospheric monitoring network in 

compliance with EPA requirements, and to present quarterly reports on the recollection and 

analysis of such to the EPA. 

The last plan for the monitoring network approved by the EPA is the Annual Ambient 

Monitoring Plan of 2010. EQB also presented the Environmental Network Monitoring Plan of 

2011, on June 28, 2011, which currently is under review by the EPA for their approval. 

The legal authority 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. The sources affected by the PSD program are subject to the 

requirements of the Federal Implementation Plan for PSD, as disposed on 40 CFR Section 

52.21. 

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
7

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

Rule 208: Agricultural Burn Permit

Part IV: Prohibitions

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 

Ozone and PM 2.5 in other states, and does 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 Ozone and PM 2.5. 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 prepare the revisions of 
8

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 dictate 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 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. The Work Subvention Plan as per Section 105 of the CAA, 

elaborated annually by the EQB, includes specific agreements to implement and revise the SIP 

when necessary. The EQB presents its revised SIP, which responds to the new revised air quality 

standards for 8 hours of ozone, as well as for PM 2.5. 

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. 
9

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

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 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. 
10

III. Procedural Tract

After the Infrastructure SIP draft for Ozone and PM 2.5 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 Ozone and PM 2.5. 

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 form in which the relevant documents may be examined 

physically as well as through the Internet, prior request. 

The Public Hearing of the case was held on January 31, 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

Environmental Protection Agency (EPA)

The commentaries and suggestions of the Environmental Protection Agency were 

annotated outside the projected SIP, and are summarized in the following: (so they refer to the 

English version of the proposed SIP, they are kept in the submitted language):

1. Change the word "New" in the title for the word "Revised".

2. EQB should discuss the revised Ozone and PM2.5 NAAQS - i.e., the dates the standards 

were revised (1997 ozone and PM, 2006 PM and 2008 Ozone).
11

3. EQB should state that this document also supplements EQB's previous 110 submittal 

of November 29, 2006 for the 1997 ozone and PM standards. 

Note: Although EQB previously submitted a 110 SIP certification for the 1997 standards 

EPA has since provided guidance that requires a more detailed discussion of the 110

elements as is discussed herein.

4. Change the first paragraph of section 5 to include the following provisions: 

Resources, Conflict of lnterest, and Emergency Backstop 110(a)(2)(E))

States are to provide assurances that (i) adequate personnel, funding, and legal authority 

will be available to carry out the SIP; and (ii) the State has responsibility for ensuring 

adequate implementation of plan provisions to be carried out by local districts. 

In accordance with sub-element (ii), the infrastructure SIP should include requirements 

that the state comply with CAA 128, "State Boards." Section 128 of the CAA states:

Sec. 128. (a) Not later than the date one year after the date of the enactment of this section, each 

applicable implementation plan shall contain requirements that –

(1) any board or body which approves permits or enforcement orders under this Act shall have at least a 

majority of members who represent the public interest and do not derive any significant portion of their 

income from persons subject to permits or enforcement orders under this Act, and 

(2) any potential conflicts of interest by members of such board or body or the head of an executive agency 

with similar powers be adequately disclosed. 

A State may adopt any requirements respecting conflicts of interest for such boards or bodies or heads of 

executive agencies, or any other entities which are more stringent than the requirements of paragraphs (1) 

and (2), and the Administrator shall approve any such more stringent requirements submitted as part 

of an implementation plan.

Mr. Waldemar Natalio Flores Flores 

Mr. Flores formulated written commentaries that are united and form part of the 

administrative file of the public participation process. However, his observations were mainly of 

a general character, based in his opinion that the EQB lacks an effective Quality System and 

Quality Assurance. This brings him to the conclusion that the Plan under consideration does 

not meet the requirements of sections 110 (a)(1) and 110 (a)(2) of the Clean Air Act and the 

interpretative standards established by EPA. 

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 
12

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.

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., !ne. v. P. RT.Co., 157 D.P.R. 203, 211 (2002).Véanse además, 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, pág. 146, citing Mun. de San juan v. ].C.A., 152 D.P.R. 

673, 692 (2000).

 

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. 
13

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., !ne. 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., !ne. v. P. RT.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. 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 
14

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. 

Law No. 170 of August 12, 1988 of the Commonwealth of Puerto Rico, as amended, 3 

L.P.R.A. sec. 2101 et seq. (LPAU) defines the administrative process as the formulation of rules 

and regulations, the formal adjudication of controversies upon its consideration, the granting of 

licenses and any other investigative process within the scope of its legal authority. 3 L.P.R.A. 

2102(k). With the approval of LPAU, supra, the Legislative Conference was looking to create a 

uniform body of minimum rules that all agencies shall observe when formulating its rules and 

regulations, and when conducting its adjudicative process; aside from establishing a judicial 

review process that applied uniformly to any action taken by the agency, that being, issuing a 

regulation or adjudicating a controversy. This way, the administrative process is systemized and 

guarantees that the proceedings are executed in a just, rapid, and economic manner. 3 L.P.R.A. 

sec. 2101. 

In terms of the regulation process, LPAU, supra, establishes what is required to develop 

rules and regulations of general application that is interpreted, promulgated, or prescribed from 

the law or public policy of the concerned agency. 3 L.P.R.A. sec. 2102(m). As per section 1.3 of 

LPAU, supra, a rule or regulation is defined as: 

Any standard or set of standards of an agency of general application that 

executes or interprets the public policy or a law, or that regulates the 

requirements of procedures or practices of an agency. The term includes the 

amendment, revocation, or suspension of an existing rule. 3 L.P.R.A. 2102(D). 

According to the latter, the power of regulation, contrary to that of adjudication, creates 

declarations of general application that define or interpret the public policy, or prescribe a 

general standard. Being the power of regulation one of general application and not that of 

particular application, rights and obligations of specific persons are not adjudicated. At the 

procedural level, the LPAU, supra, recognizes two (2) categories of rules: 1) legislative or quasilegislative rules; and 2) non-legislative rules. 3 L.P.R.A. 2102(I). Legislative rules are those that 

formulate public policy and “create rights, impose obligations, and establish a conduct pattern 

with a force of law”. Asoc. de Maestros de P.R v. Com. Relaciones del Trabajo del Servicio Público, 159 

D.P.R. 81 (2003); Municipio de San juan v. ].C.A., 152 D.P.R. 673 (2000). This type of regulation 

impacts the general population and obliges the agency to its compliance because it has no 

discretion to reject it. 

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 
15

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 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. 

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, 
16

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. Agrirnltura, 118 D.P.R. 319, 326 

(1987). Véanse además, Asoc. de Fcias Com. v. Depto. De Salud, supra, pg. 130; Carrero v. Depto. de 

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 each and every 

one them. In consequence, we recommend the following changes to the original English version 

of the document: 

4. Change the word “New” in the document’s title with “Revised”. 

5. Discuss in the document the revised NAAQS for Ozone and PM 2.5. 
17

6. Establish that the document supplements the November 29, 2006 submittal for the 1997 

standards for Ozone and PM 2.5.

4. Change the first paragraph of Section 5 so it reads as follows: 

Resources, Conflict of lnterest, and Emergency Backstop 110(a)(2)(E))

States are to provide assurances that (i) adequate personnel, funding, and legal authority 

will be available to carry out the SIP; and (ii) the State has responsibility for ensuring 

adequate implementation of plan provisions to be carried out by local districts.

In accordance with sub-element (ii), the infrastructure SIP should include requirements 

that the state comply with CAA 128, "State Boards." Section 128 of the CAA states:

Sec. 128. (a) Not later than the date one year after the date of the enactment of this section, each 

applicable implementation plan shall con ta in requirements that –

(3) any board or body which approves permits or enforcement orders under this Act

shall have at least a majority of members who represent the public interest and do not derive any significant

portion of their income from persons subject to permits or enforcement orders under this Act and

(4) any potential conflicts of interest by members of such board or body or the head of an executive agency 

with similar powers be adequately disclosed. 

A State may adopt any requirements respecting conflicts of interest for such boards or bodies or heads of 

executive agencies, or any other entities which are more stringent than the requirements of paragraphs (1) 

and (2), and the Administrator shall approve any such more stringent requirements submitted as part 

of an implementation plan.

On the other hand, we do not coincide with the commentaries presented by deponent 

Waldemar Flores for we reckon that his principal argument does not affect the validity of the 

proposed action. So much so, that the EPA has not included in its commentaries similar 

arguments that could affect the validity of the proposed document. 

In response to our analysis, we recommend that the Infrastructure SIP for Ozone and 

PM 2.5, 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 contained in EPA’s commentaries 

with which we plainly coincide. 

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 Ozone and PM 2.5 project as per Section 110(a)(2) of the Federal 

Clean Air Act, with the changes and modifications herein recommended. 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 30, 2012. 

Attorney Fernando Olivero Barreto 

Examining Official