L. Kroack, Acting Chief, Bureau of Air, IEPA, to Paul Hoffman, Deputy Assistant Secretary, U.S. Department of the Interior (Jan. 13, 2005) [hereinafter “IEPA Response Letter to FLM"]. IEPA also explained that the final Permit contains a number of changes to the draft permit not considered in the FLM's analysis "that were made to ameliorate any potential adverse impacts on the Mingo Wilderness Area from the proposed coal-fired power plant." Response to Comments at 143; IEPA Response Letter to FLM at 2-3. Petitioners do not appear to challenge Prairie State's analysis, in which IEPA concurred, showing that Prairie State's proposed Facility will not cause or contribute to an exceedance of the Class I area increments applicable to the Mingo national wilderness area. See Petition at 69-76 (not discussing Class I increment analysis). Instead, Petitioners object to IEPA's rejection of the FLM's determination that Prairie State's proposed Facility will have an adverse impact on visibility and other air quality-related values of the Mingo Class I area. Id. Specifically, Petitioners argue that the USEPA may not issue a permit if, as Petitioners contend is the case here, the FLM has demonstrated an adverse impact on the air quality-related values (including visibility) of Class I lands. Id. at 69-70. Petitioners argue further that IEPA has not provided a rational basis for its decision to reject the FLM's adverse impact finding. Id. at 70-73. Petitioners also contend that certain changes IEPA made in the final Permit, as compared to the draft permit, are not adequate to address the FLM's concerns regarding adverse impacts. Id. at 71-75. Finally, Petitioners contend that IEPA failed to adequately notify the public of both the FLM's adverse impact finding and IEPA's rationale for rejecting that finding. Id. at 75-76. For the following reasons, we conclude that Petitioners' arguments fail to show clear error in IEPA's analysis or other grounds warranting review. a. Notice to the Public Petitioners argue the Permit should be remanded on the grounds that IEPA failed to adequately notify the public of both the FLM's adverse impact finding and IEPA's rationale for rejecting that finding. Id. at 75-76. Specifically, Petitioners argue that the public notice IEPA provided did not comply with 40 C.F.R. § 52.21(p)(3). Id. As explained below, we disagree with Petitioners' interpretation of the applicable regulations. Petitioners are mistaken that public notice provided by IEPA is inconsistent with 40 C.F.R. 52.21(p)(3). The applicable regulations do not require, under the circumstances of this case, a more detailed notice to the public than IEPA gave. Section 52.21(p)(1) requires the permit issuer128 to provide written notice to the FLM of any permit application "at least 60 days prior to any public hearing on the application." 40 C.F.R. § 52.21(p)(1). The regulations then require the permit issuer to "consider any analysis performed by the Federal land manager, provided within 30 days of the notification required by paragraph (p)(1) of this section, that shows that a proposed new major stationary source or major modification may have an adverse impact on visibility in any Federal Class I area." 40 C.F.R. § 52.21(p)(3). Where the permit issuer "finds that such an analysis does not demonstrate to the satisfaction of the [permit issuer] that an adverse impact on visibility will result in the Federal Class I area, the [permit issuer] must, in the notice of public hearing on the permit application, either explain his decision or give notice as to where the explanation can be obtained.” Id. The regulatory text's plain meaning is that the public notice must explain a permit issuer's decision to reject the FLM's adverse impact analysis when that analysis is "provided within 30 days of the notification required by paragraph (p)(1) of this section." 40 C.F.R. § 52.21(p)(3). In the present case, IEPA provided the notice required by section 52.21(p)(1) to the FLM of the permit application more than 60 days prior to the public hearing on the draft permit. Specifically, IEPA explained in its response to comments that it "gave notice of the Prairie State application to the Federal Land Manager in mid-April 2002." Response to Comments at 146. Petitioners have not alleged any error in this response to public comments. Thus, we find no clear 128 The regulation refers to the "Administrator" as required to provide notice to the FLM. 40 C.F.R. § 52.21(p)(1). The Administrator's authority and responsibilities under the PSD permitting regulations have been delegated to IEPA. 46 Fed. Reg. 9580, 9582 (Jan. 29, 1981). States acting with delegated authority "stand[] in the shoes of the Regional Administrator." In re West Suburban Recycling & Energy Ctr., LP, 6 E.A.D. 692, 707 (EAB 1996). As we explained in footnote 1 above, permits issued by states acting with delegated authority are considered EPA-issued permits. In re SEI Birchwood, Inc., 5 E.A.D. 25, 26 (EAB 1994); see also In re Hadson Power 14-Buena Vista, 4 E.A.D. 258, 275-86 (EAB 1992). Because IEPA acts as EPA's delegate in implementing the federal PSD program within the State of Illinois, the Permit is considered an EPA-issued permit for purposes of federal law, and is subject to review by the Board pursuant to 40 C.F.R. § 124.19. See, e.g., In re Hillman Power Co., LLC, 10 E.A.D. 673, 675 (EAB 2002); In re Three Mountain Power, LLC, 10 E.A.D. 39, 40-41 n.1 (EAB 2001). To the extent that Petitioners are seeking review of the fact that IEPA performed PSD review functions assigned by the regulations to the "Administrator," see Petition at 69-70; Petitioners' Reply at 18-19, Petitioners have not shown that they raised this issue during the public comment period, which is a necessary predicate for raising an issue on appeal. See, e.g., In re Sutter Power Plant, 8 E.A.D. 680, 687 (EAB 1999); In re RockGen Energy Ctr., 8 E.A.D. 536, 694 (EAB 1999). To the extent that Petitioners argue that our review of IEPA's permitting decision with respect to the FLM's adverse impact determination should be considered under a standard different from that which we use for other delegated permitting decisions under 40 C.F.R. part 124, see Petitioners' Reply at 19, Petitioners' contention must fail. Hadson Power, 4 E.A.D. at 276 n.26, which Petitioners cite, does not suggest that the standards for granting or denying review under part 124, such as the requirement that issues be raised during the public comment period and the Petitioners' burden of establishing clear error, are relaxed or otherwise modified when the Board considers matters relating to an FLM's adverse impact analysis. error in the notice IEPA provided to the FLM. Notwithstanding notice to the FLM of the Prairie State application in mid-April 2002, IEPA had not received an adverse impact determination from the FLM when IEPA issued its public notice in February 2004 of the draft permit and opportunity for public comment. Instead, the FLM provided its adverse impact determination to IEPA by letter dated May 14, 2004. Letter from Paul Hoffman, Acting Assistant Secretary, U.S. Department of the Interior, to David J. Kolaz, Chief, Bureau of Air, IEPA (May 14, 2004) [hereinafter "FLM's Adverse Impact Letter"]. Nevertheless, the FLM had communicated concerns to IEPA at earlier times, and IEPA's notice to the public opening the public comment period and establishing the public hearing provided notice regarding the information it had received from the FLM. In the February 2004 public notice, IEPA stated as follows: The U.S. Fish and Wildlife Service has submitted infor- Notice of Public Hearing and Comment Period (Certified Index of the Administrative Record, Document No. 160). IEPA's notice to the public also referenced IEPA's Project Summary, which provided a detailed description of IEPA's conclusions and IEPA's agreement with Prairie State's analysis of the proposed Facility's anticipated impacts to the Mingo Class I area. Id.; Project Summary at 22-26. Petitioners simply have not shown that this notice was inadequate in light of the information available to IEPA in February 2004 when the notice was provided to the public. Under these circumstances, we reject Petitioners' argument that IEPA's notice to the public was inadequate and that a remand is necessary to provide the public notice contemplated by the regulations. We specifically reject Petitioners' implied contention that the adequacy of the February 2004 notice must be judged based upon the information subsequently provided by the FLM as part of its May 14, 2004 letter setting forth the FLM's adverse impact determination. We hold instead that where, as here, the permit issuer provided notice to the FLM that complies with 40 C.F.R. § 52.21(p)(1), and the FLM did not make an adverse impact determination and provide such determination to the permit issuer in the time frame specified in 40 C.F.R. § 52.21(p)(3), the regulations do not require the permit issuer to subsequently provide a new notice to the public when the FLM issues a later adverse impact finding. The Petitioners' argument would lead to delay in the permitting proceedings that is neither contemplated nor countenanced by the regulations.129 Accordingly, review on this ground is denied. b. IEPA's Rationale for Rejecting the FLM's Determination The CAA provides that a permit shall not be issued "[i]n any case where the Federal Land Manager demonstrates to the satisfaction of the State that the emissions from [a proposed] facility will have an adverse impact on the air quality-related values (including (including visibility) visibility) of [Class I] lands." lands." CAA § 165(d)(2)(C)(ii); 42 U.S.C. § 7475(d)(2)(C)(ii). The regulations governing the PSD program similarly provide as follows: The Federal Land Manager of any [Class I] lands may 40 C.F.R. § 52.21(p)(4). In cases, such as this, where the proposed Facility will not cause or contribute to an exceedance of the Class I increment, the FLM[] bear[s] the burden of demonstrating an adverse impact. In re Hadson Power 14 -Buena Vista, 4 E.A.D. 258, 276 (EAB 1992). "States do not have unfettered discretion to reject an FLM's adverse impact determination." Id. "If a state determines that an FLM has not satisfactorily demonstrated an adverse impact *** the state must provide a 'rational basis' for such a conclusion." Id. (citing In re Old Dominion Elec. Coop., 3 E.A.D. 779, 783 n.9 (Adm'r 1992), and State Implementation Plans for Visibility New Source Review and Monitoring Strategy, 50 Fed. Reg. 28,544, 28,549 (July 12, 1985)). Further, “[a]rbitrary and capricious rejections of adverse impact determinations are not sustainable." Id. In the present case, Petitioners argue that IEPA did not provided a rational basis for rejecting the FLM's adverse impact finding. Petition at 70-73. Upon con 129 We do not endorse Prairie State's argument that "[g]iven that the adverse impact determination was not submitted to IEPA within the time specified in the regulation (i.e., within 30 days of notification), IEPA was not required to include any rationale in the Public Notice or elsewhere." Prairie State Response at 141. Instead, we conclude that IEPA's notice was adequate given the state of the record at the time it issued its notice to the public in this case. In particular, we note that this is not a case where the FLM's adverse impact determination, although provided to the permit issuer outside section 52.21(p)(3)'s time frame, nevertheless was available before the permit issuer provided notice to the public. To the contrary, as discussed above, the adverse impact determination was provided to IEPA after it provided public notice and IEPA included notice to the public of the information that was available to IEPA at the time of the public notice. The regulations do not require more. sideration, however, we conclude that Petitioners have failed to show that IEPA's decision to accept Prairie State's analysis of the Class I area impacts and to reject the FLM's adverse impact determination is clearly erroneous or otherwise warrants review. IEPA articulated its rationale for rejecting the FLM's finding in an extensive discussion in both IEPA's response to comments and in a letter to the FLM. Response to Comments at 141-49; IEPA's Response Letter to FLM. IEPA's rationale can also be discerned from several earlier documents presenting IEPA's analysis during the course of its consultation with the FLM. See, e.g., Project Summary at 22-26. At the time IEPA issued its decision not to concur with FLM's determination, IEPA had before it air quality modeling and analysis prepared by Prairie State dated July 2003, August 2003, December 2003, January 2004, and July 2004; two reports on visibility and human perception prepared by Dr. Ivar Tombach; a report on acid deposition and the buffering effects of native soils prepared by Dr. James Kramer; and two sets of written comments from Prairie State. See Earth Tech, Inc., Application of CALMET and CALPUFF to Assess the Impacts of the Proposed Prairie State Generating Station at the Mingo Wilderness Area (July 2003); Earth Tech, Inc., Addendum: Cumulative Impact Analysis Prairie State Generating Station (Aug. 2003); Ivar Tombach, Human Perception of Visibility Impairment at the Mingo National Wildlife Refuge and Wilderness Area (July 6, 2003); James R. Kramer, Aquatic Assessment of Mingo Wildlife Area (Aug. 1, 2003); Modeling Addendum 1 (Dec. 9, 2003); Addendum: Updated Class I Increment Analysis for the Prairie State Generating Station and Calculation of the Maximum Compliant Emission Rate (Jan. 14, 2004); Letter from Dianna Tickner, Prairie State, to Chris Romaine, IEPA (April 19, 2004); Letter from Dianna Tickner, Prairie State, to Dave Kolaz, IEPA (June 21, 2004); Ivar Tombach, Comments Concerning the USFWS Adverse Impact Letter Concerning the Prairie State Generating Station (June 21, 2004); Earth Tech, Inc., Addendum: Updated Cumulative SO2 Class I Increment Analysis for the Prairie State Generating Station (July 7, 2004). IEPA also had before it the FLM's May 14, 2004 letter setting forth the FLM's adverse impact finding and additional information the FLM submitted in January 2004. The record also shows that IEPA and the FLM's staff met on a number of occasions and communicated regularly throughout this period. In an attachment to its May 14, 2004 letter, the FLM gave several reasons for its adverse impact finding, which rejected Prairie State's analysis and modeling. The FLM based its reasoning on the Federal Land Manager's Air Quality Related Values Workgroup (FLAG) Phase I Report (Dec. 2000) [hereinafter "FLAG Guidance"]. FLM's Adverse Impact Letter, attach. at 6. The FLM observed that Prairie State's visibility analysis and modeling departed from the FLAG Guidance and that the visibility modeling "that most closely followed the FLAG guidance" predicted adverse impacts on visibility above the 5% light extinction threshold (36 days out of three years) and over the 10% extinction thresh |