referenced therein. Id. If correct, this would mean, as Goal Line urges, that the NO, BACT requirement is a federal requirement reviewable by the Board. It would also mean, by logical extension, that all PSD requirements relating to NO/NO, that fall within the (b)-(w) range are also federal requirements, not EPA-approved state provisions.

Unfortunately for Goal Line, this interpretation does violence to the plain language of the regulation. Put simply, the adjective clause “promulgated on October 17, 1988 (53 FR 40671)" in the regulation, see 40 C.F.R. $ 52.382(b) (emphasis added) which Goal Line inexplicably ignores—should be read to apply to both noun antecedents (i.e., “increments for NO,” and “related requirements”) in the sentence in which it appears. See id.; see also PDC Br. II at 4. As a result, the “related requirements” referred to in this regulation can only be those promulgated on October 17, 1988, and printed in Volume 53 of the Federal Register beginning at page 40,671. Significantly, and as Goal Line itself acknowledges, see Opp. Br. I at 5 n.4, the referenced Federal Register notice includes no revisions whatsoever to 40 C.F.R. § 52.21(j), the preexisting BACT provision. See 53 Fed. Reg. 40,656, 40,671–72 (Oct. 17, 1988) (revising portions of 40 C.F.R. § 52.21(b), (c), (f), (i), and (p)). This is, in our view, dispositive. Because the Federal Register notice in question neither amended nor augmented section 52.21(j), it could not have served to “promulgate” this provision. Accordingly, BACT is not a "related requirement" within the meaning of EPA's approval regulation. Instead, BACT is part of Connecticut's approved PSD program and, as such, is not subject to Board review. 40 C.F.R. § 124.1(e).

2. Interrelationships Between PSD Provisions

In its expedited motion for dismissal, CT-DEP notes that Goal Line's petition challenges only the NO, BACT determination and not the NO, increment analysis. Exp. Mot. at 4, 6. CT-DEP contends that “BACT and the NO, increments are two entirely distinct components of the PSD permit" and that the Board does not have jurisdiction to review NO, BACT decisions simply by virtue of the fact that it can review NO, increment determinations. Id. at 5. As CT-DEP puts it, "BACT involves a determination of the best available emission control technology for sources for each pollutant subject to regulation, such as NO," whereas NO, increment analysis "involves air quality modeling to determine that the emissions of NO, from a proposed major stationary source will not result in deterioration of the air quality." Id.; accord EPA Br. at 1-2. CT-DEP concludes by citing several cases in which technology review (i.e., BACT) and air quality (i.e., increment) provisions are held to be independent PSD requirements. Exp. Mot. at 5-6 (citing In re Brooklyn Navy Yard

Resource Recovery Facility, 3 E.A.D. 867, 870 (Adm'r 1992); In re World Color Press, Inc., 3 E.A.D. 474, 476, 479 (Adm'r 1990)).

Goal Line takes issue with these claims. The company asserts that the increment and BACT components are integrated parts of a unified whole that cannot properly be separated. Opp. Br. I at 5; Opp. Br. II at 7–9. In Goal Line's view, all of the PSD provisions “listed in § 52.21(b) through (w) are interdependent," with, for example, increment consumption being a function of stack height, fugitive emissions control, and BACT. Opp. Br. I at 5; see also id. at 7. Goal Line claims that "[u]nder Connecticut's proposal, federal authority would be limited to the ministerial function of comparing the output of an air quality model with the NO, increments.” Id. Goal Line also attempts to distinguish the two cases cited by CT-DEP for the proposition that the provisions are independent, see id. at 6; Opp. Br. II at 8, and asserts that to interpret the regulations as CT-DEP suggests would lead to a waste of judicial resources. Opp. Br. I at 5-6 n.5 ("One would be required to challenge the PSD Pre-construction requirements of CAA $ [165] with regard [to a] NO, BACT determination in the state courts and to challenge the same § 165 Pre-construction review requirements with regard to the NO, increment analysis with the EAB.").

What Goal Line fails to acknowledge is that Congress contemplated a shared role between the states and EPA in implementing the CAA. See, e.g., CAA SS 107-110, 113, 165, 42 U.S.C. SS 7407-7410, 7413, 7475; see also 40 C.F.R. pt. 52. The division of PSD responsibilities in Connecticut is, while perhaps somewhat unusual, wholly consistent with congressional design. Moreover, as a general proposition, there is not the kind of identity of issues between the BACT and increment analyses that would render separate appeal tracks duplicative or inherently inefficient. As the permit proponents maintain, the role of a BACT analysis is to establish a technology requirement for anticipated emissions, whereas the role of increment analysis is to ensure that emissions will not cause significant deterioration of air quality. Exp. Mot. at 5; EPA Br. at 1-2; PDC Br. I at 3-5. These are related but separate determinations. For example, a challenge to an increment analysis does not necessarily entail review of the BACT determination; rather, BACT is taken as a given in projecting anticipated emissions. See, e.g., Draft NSR Manual at C.45 (“applicant should base the emissions rates on the results of the BACT analysis"). Likewise, a BACT challenge does not necessarily entail a review of the increment analysis. A successful challenge to a BACT determination may, in the event that it results in a different technology requirement that in turn changes the anticipated emissions, give rise to the need for a new increment analysis, but review of an increment analysis is neither

inherent in nor essential to the review of a BACT determination. The separation of these two issues is particularly apparent where, as here, a petitioner has neither questioned the increment analysis for a pollutant (here, NO,) nor even suggested that its preferred BACT would result in decreased emissions of that pollutant from the permitted source.

Goal Line's attempts to distinguish the two cases cited by CT-DEP in support of its position also fail to persuade us that Goal Line's position has merit. For example, in In re Brooklyn Navy Yard Resource Recovery Facility, 3 E.A.D. 867 (Adm'r 1992), the EPA Administrator declined to grant review of a PSD petition that raised air quality modeling issues. An earlier public comment period on such issues had expired, and the only matters at issue at the time the petition was filed involved pollutant control technology. Id. at 869-70. Goal Line contends that the case does not hold, as CT-DEP argues, that BACT and increments are separable PSD elements because the case's "reasoning was based on the principle of res judicata: the increment arguments had been dealt with in a prior appeal.” Opp. Br. I at 6.

Our review of the case reveals no evidence that a prior challenge to the air quality modeling had ever been filed (although certainly one could have been filed). Instead, the thirty-day period for filing such an appeal (prescribed by regulation, see 40 C.F.R. § 124.19(a)) appears simply to have expired. Thus, we find no evidence that the case turned on res judicata considerations and no basis for the distinction that Goal Line is attempting to draw.*

Goal Line's reading of In re World Color Press, Inc., 3 E.A.D. 474 (Adm'r 1990), is similarly unpersuasive. Goal Line quotes a sentence from the opinion that states the obvious proposition that parties must comply with all elements of the CAA. See Opp. Br. I at 6. Goal Line, however, fails to quote the immediately preceding sentence, which states, “This air quality requirement is independent from the technology (i.e., BACT) requirement." World Color Press, 3 E.A.D. at 476. In sum, these cases support the position that air quality increments analysis and BACT review are separate provisions of the CAA that may be reviewed independently, as argued by CT-DEP (as well as by Region I and PDC). See Exp. Mot. at 5; EPA Br. at 5-7; PDC Br. I at 5-7; see also In re Columbia Gulf Transmission Co., 2 E.A.D. 824, 828 (Adm'r 1989) (statutory scheme of CAA "separates issues of overall air quality from issues of technology").

'Notably, this case highlights the fact that the time frame for review of air quality determinations can be different from the time frame for review of technology determinations. This fact tends to support rather than undercut CT-DEP's position that the two provisions are distinct and separately reviewable. See Brooklyn Navy Yard, 3 E.A.D. at 869–70.

B. Other Arguments

Two other arguments made by the parties warrant brief attention. First, PDC contends that Region I approved Connecticut's NO, increment provisions into the SIP in 1997 and that, as a consequence, the Board has no jurisdiction over any PSD permitting decisions made by CT-DEP. PDC Br. I at 9–11; PDC Br. II at 5–7; see Exp. Mot. at 2 n.1 (raising but not relying on same argument). Given our holding above that the Board lacks jurisdiction to review NO, BACT determinations in Connecticut-the sole issue raised on appeal-there is no need for us to address this argument.

Second, Region I claims Goal Line is precluded from asserting that Board jurisdiction exists on the basis of the federal NO2 increments requirement because Goal Line purportedly did not raise NO,-increment issues during the public comment period. EPA Br. at 10; accord PDC Br. I at 4 n.3. Again, because we have disposed of the case on the grounds discussed above, we need not consider this issue.

III. CONCLUSION

For the foregoing reasons, Goal Line's petition for review of Connecticut PSD Permit Numbers 105-0068 and 105-0069 is hereby dismissed.

So ordered.

IN RE SUTTER POWER PLANT

PSD Appeal Nos. 99-6 & 99–73

ORDER DENYING REVIEW

Decided December 2, 1999

Syllabus

Two petitioners seek review of a prevention of significant deterioration (“PSD”) permit issued by Region IX of the U.S. Environmental Protection Agency to Calpine Corporation for the construction of a new electrical power plant. The plant, which will be situated in rural Sutter County, California, outside Yuba City, is designed to produce 500 megawatts of electricity by burning natural gas and generating steam energy. The PSD permit authorizes the plant's emissions of carbon monoxide, nitrogen oxides, and particulate matter in accordance with section 165 of the Clean Air Act (“CAA”), 42 U.S.C. § 7475.

Ms. Joan Joaquin-Wood filed the first petition for review of the PSD permit on August 17, 1999, alleging that: (1) Region IX failed to conduct an adequate review of alternative sites for the power plant; (2) the plant's emissions will cause the incidence of respiratory illness in Sutter County to increase; (3) Calpine's purchase of emissions credits will preclude an overall reduction in Sutter County air pollution; and (4) Sutter County's economically disadvantaged farming communities should not be subjected to “tiny particulate matter" and other pollutant emissions from the power plant. Mr. and Mrs. Bob Amarel, Jr. filed the second petition for review on September 29, 1999.

Held: The petitions for review of the Sutter Power Plant PSD permit are denied. Taking Ms. Joaquin-Wood's allegations in the order listed above, review is denied on the first issue because petitioner failed to identify any error in Region IX's decision not to reconsider, in the context of issuing a PSD permit, the plant siting decision. The Environmental Appeals Board (“Board”) finds no clear error, in the circumstances of this case, in the Region's decision to defer questions regarding the siting of the facility to the other federal and state agencies that evaluated the project in this regard. Review is denied on the second and fourth issues (regarding alleged causation of an increase in respiratory illnesses and impacts on economically disadvantaged farming communities) because these issues were not properly preserved for appellate review. With respect to Ms. JoaquinWood's third issue regarding emissions credits, the Board lacks jurisdiction to decide it because the emissions credit requirement relevant here springs from the CAA nonattainment area program, not the PSD program. Thus, Ms. Joaquin-Wood's petition for review is denied. As for the Amarels, their petition is denied because it is untimely. The petition was filed more than two months after Region IX issued the final PSD permit, rather than within the requisite thirty days.