FILED 

NOT FOR PUBLICATION JUN 28 2005 

UNITED STATES COURT OF APPEALS 

FOR THE NINTH CIRCUIT 

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OUR CHILDREN'S EARTH 

FOUNDATION, 

Petitioner, 

UNITED STATES ENVIRONMENTAL 

PROTECTION AGENCY, 

Respondent, 

BAY AREA AIR QUALITY 

MANAGEMENT DISTRICT, 

Respondent - Intervenor. 

CATHY A. CAlTERSON CLERK 

U.S. COURT OF APP~KS 

No. 04-73032 

EPA No. ~~558-0442(~), FRL7645-7; CA258-0442(B), FRL7645-8 

On Petition for Review of an Order of the 

Environmental Protection Agency 

Argued & Submitted June 13,2005 

San Francisco, California 

* This disposition is not appropriate for publication and may not be cited 

to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3. 
Before: SCHROEDER, Chief Judge, McKEOWN, Circuit Judge, and DuFFY **, 

Senior Judge. 

Our Children's Earth Foundation challenges the Environmental Protection 

Agency's ("EPA's") April 22,2004 final rules (69 Fed. Reg. 21,715; / 69 Fed. Reg. 

2 1,7 17) that determined the San Francisco Bay Area ("Bay Area") attained the 1 - 

hour ozone national ambient air quality standard ("NAAQS"?, suspended the 

application of the non-attainment area state implementation plan ("SIP") 

requirements in 42 U.S.C. $8 7502(c)(l), (2) and (9), and stayed and deferred 42 

U.S.C. 5 7509 sanctions. 

We deny the petition for review. EPA's finding of attainment was within its 

administrative authority. EPA has rounded three-digit ozone monitoring results to 

match the two-digit 1-hour ozone NAAQS in 40 C.F.R. 5 50.9(a)-consistent with 

its 1979 Guideline for the Interpretation of Ozone Air Quality Standards. 

Application of this rounding convention for the purposes of determining 

attainment of the 1 -hour ozone NAAQS does not conflict with Table 1 in 42 

U.S.C. 5 75 1 l(a)(l) because the three-digit design values included in the table are 

applicable to severity classifications for areas already classified as non-attainment 

and are not applicable to an initial determination of attainment. To the extent 

** The Honorable Kevin Thomas Duffy, United States Senior District 

Judge for the Southern District of New York, sitting by designation. 
there is any ambiguity in this statutory scheme, we defer to the EPA's 

interpretation of an ambiguous statute. Chevron U.S.A., Inc. v. Natural Resources 

Defense Council, 467 U.S. 837, 843 (1984) ("[Ilf the statute is silent or ambiguous 

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with respect to the specific issue, the question for the court is whether the agency's 

answer is based on a permissible construction of the statute."). 

f 

We also affirm the EPA's authority to suspend the applicability of the nonattainment area SIP requirements in 42 U.S.C. $5 7502(c)(l), (2) and (9) after the 

finding of attainment. Even when giving the benefit of the doubt to Our 

Children's Earth Foundation, 42 U.S.C. $5 7502(c)(l), (2) and (9) and 42 U.S.C. 

$ 7505a do not unambiguously resolve whether the SIP requirements in 42 U.S.C. 

$5 7502(c)(l), (2) and (9) apply to a non-attainment area that EPA determines 

achieved attainment but has not been redesignated to attainment under 42 U.S.C. 

$ 7407(d)(3)(E). Therefore, we defer to EPA's conclusion that 42 U.S.C. 

$5 7502(c)(l), (2) and (9) do not apply to the Bay Area as long as it continues to 

achieve attainment. Chevron, 467 U.S. at 843. 

We also note that the EPA's new 8-hour ozone standard, effective June 15, 

2005, moots the application of the contingency measures non-attainment area SIP 

requirement in 42 U.S.C. $ 7502(c)(9). Implementation of the 8-hour Ozone 

National Ambient Air Quality Standard-Phase 1, Reconsideration, 70 Fed. Reg. 
30,592, 30,599 (May 26,2005). Even if the contingency measures requirement is 

not mooted by the new 8-hour ozone rule, EPA's suspension of the contingency 

measures requirement after the Bay Area achieved attainment of the 1 -hour ozone 

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NAAQS deserves deference and was not in error. 

Because the EPA's suspension of the three non-attainment area SIP 

f 

requirements was not in error, the challenge to EPA's stay and deferral of 42 

U.S.C. fj 7509 sanctions also is denied. 

PETITION DENIED. 
Office of the Clerk 

United States Court of Appeals for the Ninth Circuit 

95 Seventh Street; San Francisco, California 94103 

NOTICE OF ENTRY OF JUDGMENT 

Judgment was entered in this case as of the file date on the attached decision of the 

court. 

MANDATE (FRAP 41 1 

The mandate will issue seven (7) calendar days after the expiration of the time for filing a petition 

for rehearing or seven (7) calendar days from the denial of a petition for rehearing, unless the court directs 

otherwise. If a stay of mandate is sought, an original and three (3) copies G& the motion must be filed. 

PETITION FOR REHEARING (FRAP 401 

Filin~ Time: A petition for rehearing may be filed within fourteen (14) days from entry of judgment. 

If the United States or an agency or officer thereof is a party in a civil appeal, the time for 

filing a petition for rehearing is 45 days from entry of judgment. 

An order to publish a previously unpublished memorandum disposition extends the time 

to file a petition for rehearing to 14 days after the date of the order of publication or, in 

all civil cases in which the United States or an agency, or officer thereof is a party, 45 days 

after the date of the order of publication. If the mandate has issued, the petition for 

rehearing should be accompanied by a motion to recall the mandate. 

Puruose: A petition should only be made to direct the Court's attention to one or more of the 

.following situations: 

1. A material point of fact or law overlooked in the decision. 

2. A change in the law which occurred after the case was submitted and which 

appears to have been overlooked by the panel. 

3. An apparent conflict with another decision of the court which was not addressed 

in the opinion. 

Petitions which merely reargue the case should not be filed. 

Statement A petition shall contain an introduction stating that, in counsel's judgment, one or 

of Counsel: more of the situations described in "Purpose" (section above), exist. The points to 

be raised must be clearly stated. Lacking such a statement, the petition will not be 

filed. 

Form: The fifteen (15) proportionally spaced or monospaced face page limit allowed by 

FRAP 40 must be observed and the petition must comply in form with FRAP 32. 

Three (3) copies of the petition and the original are required unless the petition 

includes a suggestion for rehearing en banc. If it does, fifty (50) copies and the 

original must be filed. See Circuit Rule 40-1. 

The petition: (1) must be directed to the Clerk of Court, (2) contain an original signature 

of the counsel/pro per litigant submitting the petition; and, (3) indicate complete proof of service 

to all parties. .... 

Entry of Judgment Form - Rev. 212005 Page 1 of 2 
PETITION FOR REHEARING EN BANC 

JFRAP 35, Circuit Rule 351 

Grounds for Parties should seek en banc consideration only if one or more of the following 

mesting grounds exits: 

En Banc 

Consideration: (1) when consideration by the full court is necessary to secure or maintain 

uniformity of its decisions; or 

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(2) when the proceeding involves a question of exceptional importance; or 

(3) when the opinion directly conflicts with an existing opinion by another court 

of appeals and substantially affects a rule of nationpl application in which 

there is an overriding need for national uniformity. 

BILL OF COSTS (FRAP 39, Circuit Rule 39-11 

If a party is allowed costs, the bill of costs must be filed within fourteen (14) days of entry of 

judgment. The time limit for filing a bill of cost is strictly enforcefltle Advisory Committee Note to Rule 

39-1, and attached bill of costs form for additional information). 

ATTORNEYS' FEES 

If a party is entitled to attorneys' fees and expenses under the Equal Access to Justice Act, such 

request must be accompanied by a completed Form A0 291. Ninth Circuit Rule 39-2. Contact the Clerk's 

Office at (415) 556-9800 for a copy of Form A0 291. 

A completed Form 9 must accompany all other requests for attorneys fees which are filed pursuant 

to Ninth Circuit Rule 39-1.6. A copy of Form 9 may be obtained by telephoning the Clerk's Office at 

(415) 556-9800, or you can visit our website at www.ca9.uscourts.~ov. It is also in the Forms section of 

our local rules. 

PETITION FOR WRIT OF CERTIORARI 

For information concerning the filing of this petition, please refer to the rules of the Supreme Court 

of the United States at www.suDremecourtus.gov. 

COUNSEL LISTING IN PUBLISHED OPINIONS ONLY 

If the disposition in your case is published, please check counsel listing on the attached decision. 

If there are any errors, please notify in writing within 10 days, 1) West Publishing Company; 610 

Opperman Drive; PO BX 64526; St. Paul, MN 55164-0526 (Attn: Kathy Blesener, Senior Editor), and 

2) this office, Clerk, U.S. Court of Appeals; PO BX 193939; San Francisco, CA 941 19-3939 (Attn: 

Opinions Clerk). Counsel listed on the opinions are those attorneys who argued and signed the brief. We 

list the attorney's name, law firm, city and state. 

Entry of Judgment Form - Rev. 212005 

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Page 2 of 2 -- - 
Form 10. Bill of Costs 

United States Court of Appeals for the Ninth Circuit 

BILL OF COSTS 

Note: If you wish to file a bill of costs, it MUST be submitted on this f6rm and filed, with 

the clerk, with proof of service, within 14 days of the date of entry ofjudgment, and 

in accordance with Circuit Rule 39-1. A late bill of costs must be accompanied by a 

motion showing good cause. Please refer to FRAP 39,28 U&C. 8 1920, and Circuit 

Rule 39- 1 when preparing your bill of costs. 

v. CA No. 

The Clerk is requested to tax the following costs against: 

Cost 

Taxable 

under FRAP 

39,28 U.S.C. 

5 1920, Circuit 

Rule 39- 1 

Excerpt of 

Record 

Appellant's 

Bnef 

Appellee's 

Brief 

Appellant's 

Reply Bnef 

REQUESTED 

Each Column 

Must Be Completed 

No. 

of 

Docs.* 

TOTAL 

ALLOWED 

To Be Completed by the Clerk 

$ 

No. 

of 

Docs. 

TOTAL 

Pages 

Per 

Doc. 

$ 

Pages 

Per 

Doc. 

Cost 

Per 

Page ** 

TOTAL 

COST 

Cost 

Per 

Page 

TOTAL 

COST 
Form 10. Bill of Costs - Continued 

Other: Any other requests must be accompanied by a statement explaining why the item(s) should 

be taxed pursuant to Circuit Rule 39-1. Additional items without such supporting 

statements will not be considered. 

Attorneys fees cannot be requested on this form. / 

* If more than 7 excerpts or 20 briefs are requested, a statement explaining the excess 

number must be submitted. / 

** Costs per page may not exceed .10 or actual cost, whchever is less. Circuit Rule 39-1. 

I, , swear under penalty of perjury that the services for whch costs are taxed were 

actually and necessarily performed, and that the requested costs were actually expended as listed. 

Signature: 

Date: 

Name of Counsel (printed or typed): 

Attorney for: - 

Date: Costs are taxed in the amount of $ 

Clerk of Court 

By: , Deputy Clerk