Milford Power Plant

Plain-English summary

Goal Line Environmental Technologies challenged the nitrogen-oxide best available control technology analysis in two prevention of significant deterioration permits issued by the Connecticut Department of Environmental Protection for a new power plant in Milford, Connecticut. The Board explained that PSD programs may be run by EPA, delegated to a state, or approved as a state implementation plan. Connecticut's challenged BACT provisions were issued under its EPA-approved state program rather than under an EPA delegation. Because the Board's permit-review authority does not extend to those state-law provisions, it dismissed the petition for lack of jurisdiction. This decision imposed no monetary penalty.

Decision snapshot

• Cited authorities: 40 C.F.R. §§ 52.21 and 124.19, and 42 U.S.C. §§ 7471 and 7475.
• Outcome: The petition for review was dismissed for lack of jurisdiction.
• Key point: The EAB reviews federal PSD permit requirements, not provisions issued under an EPA-approved state PSD program.

Full text (EPA EAB public release)

187-274/Sections29-33 10/15/01 4:20 PM Page 670

  670                ENVIRONMENTAL ADMINISTRATIVE DECISIONS



                   IN RE MILFORD POWER PLANT
                                 PSD Appeal No. 99–2

                          ORDER DENYING REVIEW



                              Decided October 18, 1999




                                           Syllabus
        Goal Line Environmental Technologies, L.L.C. (“Goal Line”) filed a petition for review
  of two Prevention of Significant Deterioration (“PSD”) permits issued by the Connecticut
  Department of Environmental Protection (“CT–DEP”) to PDC–El Paso, Milford L.L.C.
  (“PDC”) for the construction of a new power plant in Milford, Connecticut. The permits
  authorize PDC’s emissions of certain air pollutants from two combustion turbines that will
  be installed at the power plant. Goal Line claims that CT–DEP failed properly to conduct
  a Best Available Control Technology (“BACT”) analysis for the control of nitrogen oxide
  (“NOX”) emissions from the turbines, as required by the Clean Air Act, 42 U.S.C.
  §§ 7401–7671q, and asks that the permits be remanded to CT–DEP for reconsideration.

       CT–DEP filed an expedited motion to dismiss the case on the ground that the
  Environmental Appeals Board (“Board”) lacks jurisdiction to adjudicate it. According to
  CT–DEP, the permits at issue are state, not federal, permits and as such are not subject to
  review by the Board. The U.S. Environmental Protection Agency (“EPA”) Region I and
  EPA’s Office of Air and Radiation filed a brief in support of CT–DEP’s motion, as did PDC,
  the permittee. Goal Line filed briefs opposing the motion.

       Held: The petition for review is dismissed. CT–DEP’s determination of NOX BACT is
  performed pursuant to its status as a state with an EPA-approved BACT program that has
  been incorporated into Connecticut’s State Implementation Plan; the relevant provisions of
  the permits at issue are thus creatures of state law that the Board lacks jurisdiction to
  review.

     Before Environmental Appeals Judges Scott C. Fulton,
  Edward E. Reich, and Kathie A. Stein.
        Opinion of the Board by Judge Fulton:

      On May 17, 1999, Goal Line Environmental Technologies, L.L.C.
  (“Goal Line”) filed a petition for review of two Prevention of Significant
  Deterioration (“PSD”) permits issued by the Connecticut Department of
  Environmental Protection (“CT–DEP”) to PDC–El Paso, Milford L.L.C.
  (“PDC”) for the construction of a new power plant in Milford, Connecticut.
  The permits authorize PDC’s emissions of certain air pollutants from two



  VOLUME 8

187-274/Sections29-33 10/15/01 4:20 PM Page 671

                                       MILFORD POWER PLANT                         671



         combustion turbines that will be installed at the power plant. In its peti-
         tion for review of these permits, Goal Line claims that CT–DEP failed
         properly to conduct a Best Available Control Technology (“BACT”) analy-
         sis for the control of nitrogen oxide (“NOX”) emissions from the turbines,
         as required by the Clean Air Act (“CAA”), 42 U.S.C. §§ 7401–7671q. Petition
         for Review of a Final Permit Issued by the State of Connecticut,
         Department of Environmental Protection at 7–15, 28 (“Petition”). Goal Line
         seeks a remand of the permits to CT–DEP for reconsideration of the NOX
         BACT analysis. Id. at 28.

              In response to Goal Line’s petition, CT–DEP filed an expedited
         motion to dismiss the case on June 23, 1999. See Expedited Motion for
         Dismissal (“Exp. Mot.”). CT–DEP argues that the Environmental Appeals
         Board (“Board”) has no jurisdiction to adjudicate this case because the
         permits at issue are state, not federal, permits. CT–DEP claims that it
         operates the federal CAA PSD program as a state program approved by
         the U.S. Environmental Protection Agency (“EPA” or “the Agency”) and
         that permits issued pursuant to this program are state permits. Id. at 3–4.
         In particular, CT–DEP argues:

                     The [petition] should be dismissed because the portions
                     of the PSD permits that are at issue here were not issued
                     under a delegation of authority from U.S. EPA Region I,
                     but rather were issued under Connecticut PSD permit
                     authority. Therefore, the permits are not subject to review
                     by the Environmental Appeals Board.

         Id. at 1.

              The Board accepted in this case briefs from several other interested
         parties as well. EPA Region I and EPA’s Office of Air and Radiation (col-
         lectively, “Region I” or “Region”) jointly filed a brief in support of
         CT–DEP’s motion, as did PDC, the permittee. See Memorandum of EPA
         Region I and EPA Office of Air and Radiation in Support of CT–DEP’s
         Expedited Motion for Dismissal (“EPA Br.”); PDC–El Paso, Milford LLC’s
         Response in Support of CT–DEP’s Expedited Motion for Dismissal (“PDC
         Br. I”). Goal Line, for its part, filed an opposition to the Expedited Motion
         for Dismissal, which includes arguments in opposition to EPA’s brief, as
         well as a response to PDC’s brief. See Opposition to Expedited Motion
         for Dismissal (“Opp. Br. I”); Opposition to PDC–El Paso, Milford LLC’s
         Memorandum in Support of Motion for Dismissal (“Opp. Br. II”). Finally,
         PDC filed a reply to Goal Line’s opposition (“PDC Br. II”). For the rea-
         sons expressed below, we grant CT–DEP’s motion and dismiss the peti-
         tion for review.




                                                                              VOLUME 8

187-274/Sections29-33 10/15/01 4:20 PM Page 672

  672                 ENVIRONMENTAL ADMINISTRATIVE DECISIONS



                                    I. BACKGROUND

  A. Statutory and Regulatory Background

       Congress established the PSD program to regulate air pollution in
  areas of the country designated as “attainment” or “unclassifiable” with
  respect to federal air quality standards called “national ambient air qual-
  ity standards” (“NAAQS”). See CAA §§ 160–169B, 42 U.S.C. §§ 7470–7492.
  NAAQS are established on a pollutant-by-pollutant basis and currently
  exist for six air pollutants: sulfur oxides, particulate matter, nitrogen diox-
  ide (“NO2”), carbon monoxide, ozone, and lead. 40 C.F.R. § 50.4–.12.
  NAAQS are “maximum concentration ‘ceilings’ measured in terms of the
  total concentration of a pollutant in the atmosphere.” U.S. EPA, Office of
  Air Quality Planning & Standards, New Source Review Workshop Manual
  C.3 (draft Oct. 1990) (“Draft NSR Manual”).1 All areas within the State of
  Connecticut are designated as attainment or unclassifiable with respect to
  the NAAQS for NO2, the pollutant at issue in this case. See 40 C.F.R.
  § 52.374.

        Under the CAA, applicants for PSD permits must demonstrate,
  through analyses of the air quality impacts associated with the construc-
  tion and operation of proposed new sources,2 that emissions from their
  facilities will not cause or contribute to a violation of any applicable
  NAAQS or PSD “increment.” CAA § 165(a)(3), 42 U.S.C. § 7475(a)(3); 40
  C.F.R. § 52.21(k)–(m); see Draft NSR Manual ch. C. PSD increments rep-
  resent the “maximum allowable increase in concentration” that may
  occur above a baseline ambient air concentration for a pollutant. Draft
  NSR Manual at C.3; see 40 C.F.R. § 52.21(c) (increments for six regulated
  air pollutants). In addition, applicants for PSD permits must employ the
  “best available control technology,” or “BACT,” to minimize emissions of
  pollutants that may be emitted by the new source in amounts greater than
  applicable “significant” levels established by the PSD regulations. CAA
  § 165(a)(4), 42 U.S.C. § 7475(a)(4); 40 C.F.R. § 52.21(j)(2). As the Board



        1
         EPA issued the Draft NSR Manual for use as guidance in conducting new source
  review training sessions and to assist permitting officials in analyzing PSD requirements
  and policy. While the Draft NSR Manual is not accorded the same weight as EPA regula-
  tions, it is considered by this Board to be a statement of the Agency’s thinking on certain
  PSD issues. See, e.g., In re Hawaii Elec. Light Co., 8 E.A.D. 66, 72 n.7 (EAB 1998); In re
  Masonite Corp., 5 E.A.D. 551, 558 & n.8 (EAB 1994).
       2
         The PSD regulations apply to new major stationary sources and major modifications
  of existing stationary sources. See, e.g., CAA §§ 165(a), 169, 42 U.S.C. §§ 7475(a), 7479; 40
  C.F.R. § 52.21(b), (i)–(k).




  VOLUME 8

187-274/Sections29-33 10/15/01 4:20 PM Page 673

                                     MILFORD POWER PLANT                           673



         has noted on prior occasions, “[t]he requirements of preventing violations
         of the NAAQS and the applicable PSD increments, and the required use
         of BACT to minimize emissions of air pollutants, are the core of the PSD
         regulations.” In re Encogen Cogeneration Facility, 8 E.A.D. 244, 247 (EAB
         1999); accord In re Hawaii Elec. Light Co., 8 E.A.D. 66, 73 (EAB 1998).

         B. Administration of PSD Program

              Under the CAA and its implementing regulations, a PSD program (or
         portions thereof) may be administered within a state in one of three
         ways. First, the program can be run by EPA pursuant to a Federal
         Implementation Plan (“FIP”). See, e.g., CAA §§ 109–110, 165, 168,
         42 U.S.C. §§ 7409–7410, 7475, 7478; 40 C.F.R. pt. 52. Second, EPA can
         delegate its authority to operate the PSD program to a state, in which
         case the state issues PSD permits as federal permits on behalf of EPA.
         40 C.F.R. § 52.21(u); see Encogen, 8 E.A.D. at 245 n.1 (PSD permit issued
         by delegated state is federal permit). Third, EPA can approve a state PSD
         program if it meets the applicable requirements of federal law, in which
         case the program is incorporated into the state’s “State Implementation
         Plan” (“SIP”). See, e.g., CAA §§ 110, 116, 161, 42 U.S.C. §§ 7410, 7416, 7471.
         In this last instance, the state would conduct PSD permitting under its
         own authority.

         C. Board Jurisdiction to Review PSD Permits

              The Board’s authority to review PSD permits is set forth in EPA’s reg-
         ulations establishing procedures for the issuance, modification, revoca-
         tion, reissuance, and termination of such permits (among other types of
         permits). See 40 C.F.R. pt. 124. Interested parties are allowed to petition
         the Board for review of permit conditions, as follows:

                 Within 30 days after a * * * PSD final permit decision
                 * * * has been issued under § 124.15, any person who
                 filed comments on that draft permit or participated in the
                 public hearing may petition the Environmental Appeals
                 Board to review any condition of the permit decision.

         40 C.F.R. § 124.19(a).

             Significantly for purposes of this case, the Board’s authority to review
         PSD permits is not all-encompassing. The regulations specifically restrict
         the Board’s scope of review to federal requirements, stating, “Part 124
         does not apply to PSD permits issued by an approved State.” Id.




                                                                             VOLUME 8

187-274/Sections29-33 10/15/01 4:20 PM Page 674

  674             ENVIRONMENTAL ADMINISTRATIVE DECISIONS



  § 124.1(e) (emphasis added); accord Environmental Appeals Board,
  Practice Manual 3 (Nov. 1994) (citing In re Great Lakes Chem. Corp., 5
  E.A.D. 395, 396–97 (EAB 1994)). An “approved state” is defined in the
  regulations as a state that administers an “approved program.” 40 C.F.R.
  § 124.41. An “approved program,” for its part, is a SIP that contains pro-
  cedures for the issuance of PSD permits and that has been approved by
  EPA in accordance with the CAA and its implementing regulations. Id.

  D. Brief History of PSD Program in Connecticut

       The State of Connecticut has long been issuing PSD permits. On June
  19, 1978, EPA promulgated a FIP implementing the PSD program in
  Connecticut. 43 Fed. Reg. 26,388, 26,410 (June 19, 1978). For a decade
  beginning in 1982, Connecticut issued PSD permits in accordance with
  the FIP pursuant to a partial delegation of authority from EPA. See Letter
  from Harley F. Laing, Acting Director, Air Management Division, EPA
  Region I, to Leonard Bruckman, Director, Air Compliance Unit, CT–DEP
  (Sept. 29, 1982). In 1993, however, Region I approved Connecticut’s own
  PSD regulations as a SIP revision and thus terminated the federal PSD
  program for Connecticut—with one exception, which is critical to this
  case. See 58 Fed. Reg. 10,957 (Feb. 23, 1993) (codified at 40 C.F.R.
  §§ 52.370(c)(56), .382); Conn. Agencies Regs. § 22a–174–3(k) (Connecticut
  PSD regulations approved by EPA). In the preamble to the regulations
  comprising EPA’s approval, Region I stated:

          Upon the effective date of this final action, the State will
          have the authority to implement and enforce the PSD pro-
          gram through its SIP. This final action removes the [FIP]
          for PSD at 40 CFR 52.382 with the exception of the NO2
          increments and related requirements. Since Connecticut
          has not adopted the NO2 increments into its regulations,
          EPA will retain these provisions in the FIP until such time
          as the State adopts them. In addition, except for the NO2
          increments, this action terminates the delegation agree-
          ment between EPA and the Connecticut DEP.

  58 Fed. Reg. at 10,958. Further, in the regulations themselves, the Region
  specified:

          The [federal] increments for [NO2] and related require-
          ments promulgated on October 17, 1988 (53 FR 40671) to




  VOLUME 8

187-274/Sections29-33 10/15/01 4:20 PM Page 675

                                        MILFORD POWER PLANT                                 675



                  40 CFR 52.21(b) through (w)[3] are hereby incorporated
                  and made part of the applicable [SIP] for the State of
                  Connecticut.

         Id. at 10,964 (codified at 40 C.F.R. § 52.382(b)).

                                          II. DISCUSSION

         A. Goal Line’s Arguments

              Goal Line interprets the above-quoted regulatory provisions as
         meaning that EPA retained authority to implement all components of the
         PSD program in Connecticut relating to NO2. Opp. Br. II at 2. In arguing
         that CT–DEP therefore determined NOX BACT in this case as a delegatee
         of EPA, and not as a state qua state, Goal Line raises two primary argu-
         ments. First, Goal Line contends on the basis of the regulatory language
         that neither the NO2 increment nor the NOX BACT provisions are feder-
         ally approved state PSD requirements. Second, Goal Line asserts that the
         air quality and technology review components of the PSD program are
         integrated parts of a unified whole, and therefore Board jurisdiction to
         review one necessarily constitutes Board jurisdiction to review the other.
         These arguments are addressed below.

               1. Regulatory Language

              Goal Line begins with a simple argument based on the language of
         EPA’s approval regulation. In quoting the regulation for benefit of the
         Board, Goal Line highlights words and phrases that it deems significant,
         as follows:

                  “The increments for [NO2] and related requirements
                  promulgated on October 17, 1988 (53 FR 40671) to 40
                  C.F.R. 52.21(b) through (w) are hereby incorporated and
                  made part of the [Connecticut SIP].”

         Opp. Br. I at 4 (quoting 58 Fed. Reg. at 10,964, codified at 40 C.F.R.
         52.382(b)) (emphasis supplied by Goal Line). Goal Line does this to stress
         its point that the BACT provision, which is found at 40 C.F.R. § 52.21(j), falls
         within the range of subsections specified in the regulation cited (i.e., 40
         C.F.R. § 52.21(b)–(w)) and thus must be one of the “related requirements”

              3
                The regulations at 40 C.F.R. § 52.21(b)–(w) comprise the core of the federal PSD
         regulations.




                                                                                     VOLUME 8

187-274/Sections29-33 10/15/01 4:20 PM Page 676

  676             ENVIRONMENTAL ADMINISTRATIVE DECISIONS



  referenced therein. Id. If correct, this would mean, as Goal Line urges, that
  the NO2 BACT requirement is a federal requirement reviewable by the
  Board. It would also mean, by logical extension, that all PSD requirements
  relating to NOX/NO2 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 “prom-
  ulgated 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., “incre-
  ments for NO2” and “related requirements”) in the sentence in which it
  appears. See id.; see also PDC Br. II at 4. As a result, the “related require-
  ments” referred to in this regulation can only be those promulgated on
  October 17, 1988, and printed in Volume 53 of the Federal Register begin-
  ning 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 provi-
  sion. 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, dispos-
  itive. 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 NOX BACT determination and not the NO2
  increment analysis. Exp. Mot. at 4, 6. CT–DEP contends that “BACT and
  the NO2 increments are two entirely distinct components of the PSD per-
  mit” and that the Board does not have jurisdiction to review NOX BACT
  decisions simply by virtue of the fact that it can review NO2 increment
  determinations. Id. at 5. As CT–DEP puts it, “BACT involves a determi-
  nation of the best available emission control technology for sources for
  each pollutant subject to regulation, such as NOX,” whereas NO2 incre-
  ment analysis “involves air quality modeling to determine that the emis-
  sions of NO2 from a proposed major stationary source will not result in
  deterioration of the air quality.” Id.; accord EPA Br. at 1–2. CT–DEP con-
  cludes 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



  VOLUME 8

187-274/Sections29-33 10/15/01 4:20 PM Page 677

                                    MILFORD POWER PLANT                            677



         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 minis-
         terial function of comparing the output of an air quality model with the
         NO2 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-construc-
         tion requirements of CAA § [165] with regard [to a] NO2 BACT determi-
         nation in the state courts and to challenge the same § 165 Pre-construc-
         tion review requirements with regard to the NO2 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 §§ 107–110, 113, 165, 42 U.S.C. §§ 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 congres-
         sional 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 project-
         ing 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




                                                                            VOLUME 8

187-274/Sections29-33 10/15/01 4:20 PM Page 678

  678                ENVIRONMENTAL ADMINISTRATIVE DECISIONS



  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, NO2) 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 con-
  trol 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 sim-
  ply 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.4

        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 sup-
  port 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”).

       4
         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 determina-
  tions. This fact tends to support rather than undercut CT–DEP’s position that the two pro-
  visions are distinct and separately reviewable. See Brooklyn Navy Yard, 3 E.A.D. at 869–70.




  VOLUME 8

187-274/Sections29-33 10/15/01 4:20 PM Page 679

                                     MILFORD POWER PLANT                            679



         B. Other Arguments

              Two other arguments made by the parties warrant brief attention.
         First, PDC contends that Region I approved Connecticut’s NO2 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 rely-
         ing on same argument). Given our holding above that the Board lacks
         jurisdiction to review NOX 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 NO2-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 dis-
         missed.

             So ordered.




                                                                              VOLUME 8