# FILED
NOT FOR PUBLICATION JUN 28 2005 

### UNITED STATES COURT OF APPEALS FOR THENINTH CIRCUIT /' 

### 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 EPANo. ~~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 forpublication and may not be cited to or by the courts ofthis circuit except as provided by Ninth CircuitRule 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. 21,717) 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") requirementsin 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 ozoneNAAQS in 40 C.F.R. 

# 5 50.9(a)-consistent with its 1979 Guideline for the Interpretation of Ozone Air Quality Standards. Application ofthis rounding convention for the purposes of determining attainment of the 1 -hour ozone NAAQS does not conflict with Table 1in 42 U.S.C. 

# 5 75 1l(a)(l)because the three-digit design values includedin 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 ofNew York, sitting by designation.

### there is any ambiguityin this statutory scheme,we deferto 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 / 

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

answer is based on a permissible construction ofthe statute."). f 

### We also affirm the EPA's authorityto suspend the applicabilityofthe nonattainment area SIPrequirements 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 SIPrequirements in 42 U.S.C. 

# $5 7502(c)(l), (2) and (9) applyto 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 deferto EPA's conclusion that 42 U.S.C. 

# $5 7502(c)(l), (2) and (9) do not applyto 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 ofthe contingency measures non-attainment area SIP requirement in 42 U.S.C. $ 7502(c)(9). Implementationofthe 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 ofthe contingency measures requirement after the Bay Area achieved attainment ofthe 1 -hour ozone / 

### NAAQS deserves deference and was not in error. Because the EPA's suspension ofthe three non-attainment area SIP f 

### requirements was not in error, the challenge to EPA's stay and deferral of42 

### 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 expirationof the time for filing apetition 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 ofjudgment. If the United Statesor 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 ofjudgment. 

### An order to publish a previously unpublished memorandum disposition extends the time to file a petition for rehearing to 14days after the date of the order of publication or, in all civil cases in whichthe United States or an agency, or officer thereofis 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. Petitionswhich 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/proper litigant submitting the petition; and, (3) indicate complete proof of service to all parties.
.... Entry ofJudgment Form - Rev. 212005 Page 1 of2

### PETITION FOR REHEARING EN BANC JFRAP35, 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 / (2) when the proceeding involves a question of exceptional importance; or (3) when the opinion directly conflicts with an existing opinionby 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 enforcefltleAdvisory CommitteeNote to Rule 39-1, and attachedbill 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 mustbe accompanied by a completed Form A0291. Ninth CircuitRule 39-2. Contactthe Clerk's Office at (415) 556-9800 for a copy of Form A0291. A completed Form 9 must accompany all other requests for attorneys feeswhich 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 sectionof our local rules. 

### PETITION FOR WRIT OF CERTIORARI For information concerningthe filing ofthispetition, please refer to therules ofthe 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 94119-3939 (Attn: Opinions Clerk). Counsel listed onthe opinions are those attorneys who argued and signedthe brief. We list the attorney's name, law firm, city and state.

Entry ofJudgmentForm - Rev. 212005 % Page 2 of2 ---

### Form 10. 

### Bill of Costs United States Court ofAppeals for the Ninth Circuit BILL OF COSTS Note: If you wish to file a bill of costs, it 

### MUSTbe submitted on this 

### f6rm and filed, with the clerk, with proof of service, within 14days ofthe date ofentry ofjudgment, and in accordance with Circuit Rule 39-1. A late bill of costs must be accompaniedby a motion showing good cause. Please refer to 

### FRAP 39,28U&C. 

## 8 1920, and Circuit Rule 39-1when preparing your bill of costs.

v. 

### CANo. 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 Completedby 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: 

### Anyother requests mustbeaccompaniedby a statement explaining whytheitem(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 onthis form. / 

## * If more than 7 excerpts or 20briefs 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 ofperjury that the servicesforwhchcosts 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