Case Nos. 10-71457 and 10-71458 (consolidated) 

IN THE UNITED STATES COURT OF APPEALS 

FOR THE NINTH CIRCUIT 

________________________

SIERRA CLUB, et al., and 

COMMITTEE FOR A BETTER ARVIN, et al. 

Petitioners, 

v. 

UNITED STATES ENVIRONMENTAL PROTECTION AGENCY, et al., 

Respondents. 

SAN JOAQUIN VALLEY UNIFIED AIR POLLUTION CONTROL DISTRICT, 

Intervenor 

On Petition for Review of Final Action of the 

United States Environmental Protection Agency 

________________________ 

BRIEF OF RESPONDENTS

________________________ 

Of Counsel: IGNACIA S. MORENO 

 Assistant Attorney General 

JEFFERSON WEHLING 

JEANHEE HONG JOHN C. CRUDEN 

U.S. EPA, Region IX Deputy Assistant Attorney General 

Office of Regional Counsel 

 MONICA DERBES GIBSON 

JAN M. TIERNEY Environmental Defense Section 

U.S. EPA Environment & Natural Resources Div. 

Office of General Counsel U.S. Department of Justice 

 P.O. Box 23986 

May 5, 2011 Washington, DC 20026-3986 

 202-514-0135

Case: 10-71457 05/05/2011 Page: 1 of 64 ID: 7741631 DktEntry: 31
i 

TABLE OF CONTENTS

STATEMENT OF JURISDICTION............................................................................ 1 

ISSUES PRESENTED FOR REVIEW ....................................................................... 1 

STATEMENT OF THE CASE .................................................................................... 2 

STATEMENT OF FACTS .......................................................................................... 4 

A. The Clean Air Act and the National Ambient Air Quality Standard for 

 Ozone ................................................................................................................... 4 

B. State Implementation Plans ................................................................................. 6 

C. Regulation of Mobile Sources Under the CAA .................................................. 9 

D. EPA Action on the San Joaquin Valley One-Hour Ozone Plan .......................... 11 

STANDARD OF REVIEW ......................................................................................... 14 

SUMMARY OF THE ARGUMENT .......................................................................... 17 

ARGUMENT ............................................................................................................... 18 

I. EPA Appropriately Relied on the Data Before It in Taking Action on the 

 2004 Plan ............................................................................................................. 19 

 A. EPA’s Interpretation of the CAA, Requiring Emissions Inventories 

 to Be Comprehensive, Current, and Accurate as of the Time the State 

 Submits a Proposed SIP, Is Reasonable ...................................................... 19 

 

 B. Requiring California to Use the Updated Model for the 2004 Plan 

Would Have Been Inconsistent with EPA Guidance and Practice ............. 27 

II. EPA’s Treatment of California Waiver Measures Was Consistent with 

 the Requirements of the CAA ........................................................................... 33 

Case: 10-71457 05/05/2011 Page: 2 of 64 ID: 7741631 DktEntry: 31
ii 

A. EPA Reasonably Interprets the CAA’s SIP Provisions and Waiver 

Provisions to Give Effect to Both ........................................................... 34 

 B. Allowing Emission Reduction Credit for California Waiver Measures 

 Is Consistent with Allowing Emission Reduction Credit for Federal 

Mobile Source Control Measures ............................................................ 40 

 C. EPA Explained the Analogous Requirements in the California 

 Waiver Process and the SIP Process ....................................................... 43 

III. EPA Reasonably Approved the Attainment Demonstration in the 2004 Plan 

in March 2010 ...................................................................................................... 44 

 A. EPA’s Approval of the Attainment Demonstration in the 2004 Plan 

 Was Consistent with the Requirements of the CAA ................................... 44 

B. Review of this Issue Is Limited to the Administrative Record that Was 

 Before EPA at the Time of the Determination ............................................ 49 

CONCLUSION ............................................................................................................ 50 

Case: 10-71457 05/05/2011 Page: 3 of 64 ID: 7741631 DktEntry: 31
iii 

TABLE OF AUTHORITIES

FEDERAL CASES

Alaska Dep’t of Envtl. Conservation v. EPA, 540 U.S. 461 (2004) ...................... 14 

Am. Iron & Steel Inst. v. EPA, 115 F.3d 979 (D.C. Cir. 1997) ............................... 20 

Appalachian Power Co. v. EPA, 135 F.3d 791 (D.C. Cir. 1998) ........................... 15 

Assoc. of Irritated Residents v. EPA, 632 F.3d 584 (9th Cir. 2011) ................. 24-26 

Baltimore Gas & Elec. Co. v. NRDC, Inc., 462 U.S. 103 (1983) ...................... 14-15 

BCCA Appeal Group v. EPA, 355 F.3d 817 (5th Cir. 2003) .................................... 8 

Camp v. Pitts, 411 U.S. 138 (1973) .................................................................. 15, 50 

Cent. Ariz. Water Conservation Dist. v. EPA, 990 F.2d 1531 (9th Cir. 1993) ....... 17 

Chemical Mfrs. Ass’n v. NRDC, Inc. 470 U.S. 116 (1985) .................................... 16 

Chevron, U.S.A., Inc. v. NRDC, Inc., 467 U.S. 837 (1984) .................................... 16 

Citizens to Preserve Overton Park, Inc., v. Volpe, 401 U.S. 402 (1971) ............... 50 

Commercial Drapery Contractors, Inc. v. United States, 133 F.3d 1 

(D.C. Cir. 1998) ...................................................................................................... 50 

El Comité Para El Bienestar De Earlimart v. Warmerdam, 

539 F.3d 1062 (9th Cir. 2008) ............................................................................ 8, 19 

Entergy Corp. v. Riverkeeper, Inc., 129 S. Ct. 1498 (2009) ................................... 16 

Environmental Defense v. EPA, 369 F.3d 193 (2nd Cir. 2004) .......................... 8, 47 

Fed. Express Corp. v. Holowecki, 552 U.S. 389 (2008) ......................................... 16 

Fla. Power & Light Co. v. Lorion, 470 U.S. 729 (1985) ............................ 15, 27, 50 

Case: 10-71457 05/05/2011 Page: 4 of 64 ID: 7741631 DktEntry: 31
iv 

ICC v. Jersey City, 322 U.S. 503 (1944) ................................................................ 20 

Klamath-Siskiyou Wildlands Ctr. v. Bureau of Land Mgmt., 

387 F.3d 989 (9th Cir. 2004) .................................................................................. 15 

Lands Council v. McNair, 537 F.3d 981 (9th Cir. 2008) (en banc) ....................... 32 

Latino Issues Forum v. EPA, 558 F.3d 936 (9th Cir. 2009) ............................. 27, 35 

Leslie Salt Co. v. United States, 55 F.3d 1388 (9th Cir. 1995) .............................. 16 

Lexecon Inc. v. Milberg, Weiss, Bershad, Hynes & Lerach, 

523 U.S. 26 (1998) .................................................................................................. 34 

Motor & Equip. Mfrs. Ass’n, Inc. v. EPA, 627 F.2d 1095 (D.C. Cir. 1979) .......... 10 

Motor Vehicle Mfrs. Ass’n v. State Farm Mut. Auto. Ins. Co., 

463 U.S. 29 (1983) .................................................................................................. 14 

Nance v. EPA, 645 F.2d 701 (9th Cir. 1981) .......................................................... 20 

NW Ecosystem Alliance v. U.S. Fish & Wildlife Serv., 

475 F.3d 1136 (9th Cir. 2007) .......................................................................... 14, 27 

NW Envtl. Advocates v. Nat’l Marine Fisheries Serv., 

460 F.3d 1125 (9th Cir. 2006) .......................................................................... 15, 51 

Sierra Club v. EPA, 356 F.3d 296 (D.C. Cir. 2004) ............................................... 21 

Sierra Club v. EPA, 2004 WL 877850 (D.C. Cir. Apr. 16, 2004) .......................... 21 

Thomas Jefferson Univ. v. Shalala, 512 U.S. 504 (1994) ................................ 16, 17 

United States National Bank of Oregon v. Independent Insurance 

Agents, 508 U.S. 439 (1993) ................................................................................... 34 

Vermont Yankee Nuclear Power Corp. v. NRDC, 435 U.S. 519 (1978) ................ 20 

Vigil v. Leavitt, 381 F.3d 826 (9th Cir. 2004) ......................................................... 14 

Case: 10-71457 05/05/2011 Page: 5 of 64 ID: 7741631 DktEntry: 31
v 

FEDERAL STATUTES

Clean Air Act, Amendments, Pub. L. No. 101-549, 104 Stat. 2399 

(Nov. 15, 1990) ................................................................................................. 35, 36 

5 U.S.C. § 706(2)(A) ............................................................................................... 14 

42 U.S.C. §§ 7401-7671q ......................................................................................... 4 

42 U.S.C. § 7407(a) .................................................................................................. 6 

42 U.S.C. § 7407(d)(1) ............................................................................................. 5 

42 U.S.C. §§ 7408-7409 ........................................................................................... 4 

42 U.S.C. § 7410 ................................................................................................... 1, 6 

42 U.S.C. § 7410(a) .................................................................................................. 6 

42 U.S.C. § 7410(a)(2) ...................................................................................... 18, 38 

42 U.S.C. § 7410(a)(2)(A) ...................................................................................... 38 

42 U.S.C. § 7410(k) ................................................................................................ 24 

42 U.S.C. § 7410(k)(3) ............................................................................................. 6 

42 U.S.C. § 7410(l) ................................................................................................. 44 

42 U.S.C. §§ 7501-7509a .......................................................................................... 6 

42 U.S.C. § 7502 ..................................................................................................... 19 

42 U.S.C. § 7502(c) .................................................................................................. 7 

42 U.S.C. § 7502(c)(2) ........................................................................................ 8, 23 

42 U.S.C. § 7502(c)(3) .................................................................................. 8, 21, 22 

42 U.S.C. § 7502(c)(9) ............................................................................................ 42 

Case: 10-71457 05/05/2011 Page: 6 of 64 ID: 7741631 DktEntry: 31
vi 

42 U.S.C. §§ 7511-7511f .......................................................................................... 7 

42 U.S.C. § 7511(a) ................................................................................................ 23 

42 U.S.C. § 7511(a)(1) ........................................................................................ 7, 11 

42 U.S.C. § 7511(a)(5) ...................................................................................... 46, 49 

42 U.S.C. § 7511(b)(2) ..................................................................................... 47, 48 

42 U.S.C. § 7511(b)(3) ........................................................................................... 12 

42 U.S.C. § 7511a ............................................................................................. 18, 19 

42 U.S.C. § 7511a(a)(1) .......................................................................... 8, 20, 22, 26 

42 U.S.C. § 7511a(a)(3) .......................................................................... 9, 20, 22, 29 

42 U.S.C. § 7511a(a)(5) .......................................................................................... 49 

42 U.S.C. § 7511a(b)(1) ........................................................................................... 47 

42 U.S.C. § 7511a(b)(1)(B) .................................................................................... 22 

42 U.S.C. § 7511a(b)(1)(C) .............................................................................. 10, 42 

42 U.S.C. § 7511a(c)(2) .................................................................... 8, 23, 45, 46, 49 

42 U.S.C. § 7511a(c)(2)(A) .................................................................................. 7, 8 

42 U.S.C. § 7511a(c)(2)(B) ............................................................................... 22, 47 

42 U.S.C. § 7511a(e) ................................................................................................. 7 

42 U.S.C. § 7513-7513b .......................................................................................... 49 

42 U.S.C. § 7515 ............................................................................................... 36, 44 

42 U.S.C. §§ 7521-7554 ......................................................................................... 10 

Case: 10-71457 05/05/2011 Page: 7 of 64 ID: 7741631 DktEntry: 31
vii 

42 U.S.C. § 7521(a) ................................................................................................ 39 

42 U.S.C. § 7543 ................................................................................................. 4, 33 

42 U.S.C. § 7543(a) ................................................................................................ 10 

42 U.S.C. § 7543(b) .......................................................................................... 10, 33 

42 U.S.C. § 7543(b)(3) ........................................................................................... 43 

42 U.S.C. § 7543(e)(1) ............................................................................................ 10 

42 U.S.C. § 7543(e)(2) ...................................................................................... 10, 33 

42 U.S.C. § 7545(c)(4)(C) ..................................................................................... 37 

42 U.S.C. § 7545(m) ............................................................................................... 37 

42 U.S.C. § 7586 ..................................................................................................... 37 

42 U.S.C. § 7607(b) ................................................................................................. 14 

42 U.S.C. § 7607(b)(1) ............................................................................................. 1 

42 U.S.C. § 7607(d) ............................................................................................ 5, 14 

42 U.S.C. § 7607(d)(1) ....................................................................................... 5, 14 

FEDERAL REGULATIONS

40 C.F.R. pt. 51, Subpart X ..................................................................................... 19 

40 C.F.R. pt. 50 ....................................................................................................... 31 

40 C.F.R. § 50.9 ........................................................................................................ 5 

40 C.F.R. § 50.9(a) .................................................................................................. 45 

Case: 10-71457 05/05/2011 Page: 8 of 64 ID: 7741631 DktEntry: 31
viii 

40 C.F.R. § 50.9(b) ................................................................................................... 5 

40 C.F.R. pt. 51, Subpart A ..................................................................................... 23 

40 C.F.R. § 51.30(b) ................................................................................................. 9 

40 C.F.R. § 51.50 .................................................................................................... 48 

40 C.F.R. § 51.112 .................................................................................................... 8 

40 C.F.R. § 51.112(a)(1) ......................................................................................... 21 

40 C.F.R. § 51.900(f)(4) ......................................................................................... 22 

40 C.F.R. § 51.900(g) ............................................................................................. 46 

40 C.F.R. § 51.905 .................................................................................................... 5 

40 C.F.R. § 51.905(a)(1)(i) ..................................................................................... 22 

50 C.F.R. § 50.10 ...................................................................................................... 5 

FEDERAL REGISTER NOTICES

44 Fed. Reg. 8,202 (Feb. 9, 1979) ............................................................................ 5 

44 Fed. Reg. 60,758 (Oct. 22, 1979) ....................................................................... 37 

45 Fed. Reg. 63,843 (Sept. 26, 1980) ..................................................................... 37 

56 Fed. Reg. 56,694 (Nov. 6, 1991) ........................................................................ 11 

57 Fed. Reg. 13,498 (Apr. 16, 1992) ............................................................ 9, 22, 23 

61 Fed. Reg. 10,920 (Mar. 18, 1996) ...................................................................... 47 

62 Fed. Reg. 1,150 (Jan. 8, 1997) ..................................................................... 11, 47 

Case: 10-71457 05/05/2011 Page: 9 of 64 ID: 7741631 DktEntry: 31
ix 

62 Fed. Reg. 15,844 (Apr. 3, 1997) ......................................................................... 43 

62 Fed. Reg. 38,856 (Jul. 18, 1997) .......................................................................... 5 

62 Fed. Reg. 66,279 (Dec. 18, 1997) ...................................................................... 43 

66 Fed. Reg. 30,811 (Jun. 8, 2001) ......................................................................... 43 

66 Fed. Reg. 54,143 (Oct. 25, 2001) ....................................................................... 47 

66 Fed. Reg. 56,476 (Nov. 8, 2001) ........................................................................ 11 

67 Fed. Reg. 5,170 (Feb. 4, 2002) .......................................................................... 47 

67 Fed. Reg. 30,574 (May 7, 2002) ........................................................................ 47 

68 Fed. Reg. 15,720 (Apr. 1, 2003) ........................................................................ 40 

69 Fed. Reg. 8,126 (Feb. 23, 2004) ........................................................................ 12 

69 Fed. Reg. 20,550 (Apr. 16, 2004) ...................................................................... 12 

69 Fed. Reg. 23,858 (Apr. 30, 2004) .................................................................... 5, 6 

69 Fed. Reg. 23,996 (Apr. 30, 2004) ........................................................................ 6 

70 Fed. Reg. 44,470 (Aug. 3, 2005) .......................................................................... 5 

70 Fed. Reg. 71,612 (Nov. 29, 2005) ................................................................. 9, 22 

73 Fed. Reg. 61,381 (Oct. 16, 2008) ................................................................. 13, 24 

74 Fed. Reg. 33,933 (Jul. 14, 2009) ................................................12, 13, 24, 33, 35 

74 Fed. Reg. 50, 936 (Oct. 2, 2009) ........................................................................ 13 

75 Fed. Reg. 10,420 (Mar. 8, 2010) .................................................................passim 

Case: 10-71457 05/05/2011 Page: 10 of 64 ID: 7741631 DktEntry: 31
1 

STATEMENT OF JURISDICTION

 This case concerns an action by the United States Environmental Protection 

Agency (“EPA”) approving revisions to the California State Implementation Plan 

(“SIP”) for the San Joaquin Valley extreme nonattainment area for the one-hour 

ozone National Ambient Air Quality Standard (“NAAQS”) under section 110 of 

the Clean Air Act (“CAA”), 42 U.S.C. § 7410. 75 Fed. Reg. 10,420 (Mar. 8, 

2010). Respondents United States Environmental Protection Agency, Lisa P. 

Jackson, Administrator, and Jared Blumenfeld, Regional Administrator, EPA 

Region 9 (collectively “EPA”) agree with the jurisdictional statement in the brief 

filed by petitioners Sierra Club, Committee for a Better Arvin, et al. 

(“Petitioners”). This Court has jurisdiction over this case pursuant to CAA section 

307(b)(1), 42 U.S.C. § 7607(b)(1). Respondents agree that the petition was timely 

filed. 

ISSUES PRESENTED FOR REVIEW

1. Whether EPA reasonably interpreted the CAA to allow EPA to approve the 

rate of progress and attainment demonstrations in California’s SIP submittal based 

on data that were current and accurate when the proposed SIP was submitted, 

without requiring the State and EPA to continually re-evaluate such data, and 

modeling analyses based on such data, as the notice-and-comment rulemaking 

review of the proposed SIP progressed. 

Case: 10-71457 05/05/2011 Page: 11 of 64 ID: 7741631 DktEntry: 31
2 

2. Whether EPA acted arbitrarily and capriciously in relying upon the emissions 

inventory data that were submitted with California’s proposed SIP revision, where 

subsequent emissions inventory data, which were developed pursuant to modeling 

methods that were not available when California submitted the proposed SIP 

revision, and which were submitted to EPA for a control strategy for a different 

NAAQS, yielded different emissions estimates. 

3. Whether EPA’s interpretation of the CAA, allowing California to rely in its 

SIP on emissions reductions from California regulations that undergo the required 

procedures under the CAA, and that receive waivers of Federal preemption of the 

regulation of mobile sources, without requiring these measures to also undergo the 

similar process of receiving SIP approval, is reasonable. 

4. Whether EPA’s March 2010 approval of proposed revisions to the SIP for the 

San Joaquin Valley extreme nonattainment area for the one-hour ozone standard 

was arbitrary and capricious based on EPA’s long-standing policy that attainment 

demonstrations for the one-hour standard show attainment beginning in the year 

when attainment is required, and not prior to the year when attainment is required. 

STATEMENT OF THE CASE

 On March 8, 2010, EPA issued a final rule approving revisions to the 

California SIP for the San Joaquin Valley extreme nonattainment area for the onehour ozone NAAQS. 75 Fed. Reg. 10,420 (Mar. 8, 2010). The proposed SIP 

Case: 10-71457 05/05/2011 Page: 12 of 64 ID: 7741631 DktEntry: 31
3 

revisions relied upon applicable emission controls, including California state 

measures, to show that required reductions in emissions would be made and used 

modeling of future air quality conditions to show that the area would progress 

toward attaining the one-hour ozone NAAQS. 

 Petitioners challenge EPA’s approval of the San Joaquin Valley Area SIP for 

the one-hour ozone NAAQS, arguing that EPA violated the CAA and the 

Administrative Procedure Act (“APA”) in using the data that California submitted 

with the proposed SIP revisions and not data submitted to support other SIP 

revisions that California proposed several years later, for the eight-hour ozone 

NAAQS. As Respondents demonstrate below, EPA reasonably interpreted the 

CAA to require that the data be current and accurate as of the time the State 

submitted them to EPA, and not as of some subsequent time. EPA’s approval of 

the proposed SIP revision was not arbitrary or capricious, because the action was 

supported by the administrative record that was before EPA and was consistent 

with the CAA and EPA regulations and policy. Accordingly, EPA’s action was 

consistent with both the CAA and the APA. 

 Petitioners also challenge EPA’s action because the proposed SIP revisions 

credited the San Joaquin Valley Area with emission reductions that resulted from 

California emission controls on motor vehicles and motor engines for which EPA 

had waived Federal preemption under CAA section 209, 42 U.S.C. § 7543. EPA 

Case: 10-71457 05/05/2011 Page: 13 of 64 ID: 7741631 DktEntry: 31
4 

reasonably interprets the CAA to allow emission reductions from control measures 

for which Federal preemption has been waived, after complying with the CAA’s 

notice and comment requirements, to be counted in the SIP, even though those 

California regulations are not also submitted for approval as part of the SIP. This 

interpretation of the CAA is reasonable because the CAA accords California a 

unique process so that its emission controls for mobile sources can take the place 

of the Federal emission control regulations for mobile sources. Accordingly, just 

as other States can rely on emission reductions from Federal mobile source control 

measures in their SIPs, California can rely on emission reductions from its 

regulations for which Federal preemption has been waived. 

 These petitions for review should be denied. 

STATEMENT OF FACTS

A. The Clean Air Act and the National Ambient Air Quality Standard for 

Ozone 

 The Clean Air Act (“CAA” or “the Act”), 42 U.S.C. §§ 7401-7671q, 

establishes a comprehensive program for controlling and improving the nation’s air 

quality through shared Federal and state responsibility. The Act requires EPA to 

establish, review, and revise National Ambient Air Quality Standards (“NAAQS”) 

for air pollutants that it determines may reasonably be anticipated to endanger 

public health or welfare. 42 U.S.C. §§ 7408-7409. Once EPA has established a 

Case: 10-71457 05/05/2011 Page: 14 of 64 ID: 7741631 DktEntry: 31
5 

NAAQS, EPA must designate areas that do not meet the NAAQS as 

“nonattainment.” 42 U.S.C. § 7407(d)(1). 

 EPA established a NAAQS for ozone1/

 in 1979. 44 Fed. Reg. 8202 (Feb. 9, 

1979). The 1979 ozone NAAQS set the acceptable level of ozone in the ambient 

air at 0.12 parts per million (“ppm”), based on monitored levels averaged over one 

hour. 40 C.F.R. § 50.9; 44 Fed. Reg. at 8220. In 1997, EPA revised the ozone 

standard to be more protective of human health. 62 Fed. Reg. 38,856 (July 18, 

1997). The revised standard set the acceptable level of ozone in the ambient air at 

0.08 ppm, averaged over an eight-hour period. 62 Fed. Reg. at 38,859; 50 C.F.R. § 

50.10. EPA issued the eight-hour standard as a revision of the one-hour standard, 

rather than as a separate, additional standard, because EPA concluded that the onehour standard was no longer needed to protect human health. Id. at 38,859, 

38,861. Effective June 15, 2005, the 1979 ozone standard was revoked for most 

areas of the country, including the San Joaquin Valley. See 70 Fed. Reg. 44,470 , 

44,473 (Aug. 3, 2005); see also 40 C.F.R. § 50.9(b); 69 Fed. Reg. 23,858 (Apr. 30, 

2004), 69 Fed. Reg. 23,951, 23,996 (Apr. 30, 2004). However, EPA retained as 

“anti-backsliding” requirements many of the obligations that applied based on an 

area’s attainment status for the one-hour ozone standard. See 40 C.F.R. § 51.905. 

 

1/

Ground-level ozone, the pollutant at issue here, is formed from chemical 

reactions between nitrogen oxides (NOx) and volatile organic compounds, in the 

presence of sunlight. 

Case: 10-71457 05/05/2011 Page: 15 of 64 ID: 7741631 DktEntry: 31
6 

Thus, although the one-hour ozone standard no longer applies, certain areas remain 

obligated to meet certain regulatory requirements for the one-hour ozone standard 

that applied to those areas as of the date that the one-hour standard was revoked. 

B. State Implementation Plans 

 States have primary authority for ensuring that their air quality meets the 

NAAQS. CAA § 107(a), 42 U.S.C. § 7407(a). Once EPA has promulgated area 

designations, the CAA requires States to develop state implementation plans 

(“SIPs”) to bring nonattainment areas into attainment with the NAAQS and to 

maintain air quality in areas that are in attainment. CAA § 110, 42 U.S.C. § 7410. 

After reasonable notice and public hearings, a State must adopt the SIP and submit 

it to EPA for review and approval. CAA § 110(a), 42 U.S.C. § 7410(a). EPA must 

approve the SIP if it meets the CAA’s requirements. CAA § 110(k)(3), 42 U.S.C. 

§ 7410(k)(3). The general requirements for all SIPs are set forth in CAA section 

110, 42 U.S.C. § 7410. These include enforceable emissions limitations, other 

control mechanisms to meet the requirements of the CAA, and enforcement 

programs. General requirements for nonattainment area SIPs are in CAA sections 

171-179B, 42 U.S.C. §§ 7501-7509a. SIPs for nonattainment areas must include 

an emissions inventory, an attainment demonstration, reasonable progress 

measures, nonattainment area permit requirements for new or modified major 

stationary sources, and contingency measures to be taken if the area fails to make 

Case: 10-71457 05/05/2011 Page: 16 of 64 ID: 7741631 DktEntry: 31
7 

reasonable further progress or to attain the NAAQS by the required date. CAA § 

172(c), 42 U.S.C. § 7502(c). 

 The CAA also establishes specific requirements for ozone nonattainment area 

SIPs. CAA §§ 181-185B, 42 U.S.C. §§ 7511-7511f. Section 181(a)(1) provides 

five nonattainment area classifications, ranging from “marginal” to “extreme,” 

based on the severity of the ozone problem in the area. 42 U.S.C. § 7511(a)(1). 

Areas with “higher” classifications, such as “extreme,” are provided more time to 

attain, but these areas are subject to more stringent planning and control 

obligations. For example, the regulatory threshold for stationary sources in areas 

with “higher” classifications is smaller than that for “lower” classifications, so that 

in an “extreme” area, sources that emit 10 tons per year (“tpy”) of VOC or NOx 

are considered major sources, while in marginal and moderate areas, the threshold 

is 100 tpy. 

 Each SIP for an “extreme” ozone nonattainment area, such as the San 

Joaquin Valley, must contain an “attainment demonstration,” by which the State 

demonstrates that the area will achieve the ozone NAAQS by the applicable 

attainment date. CAA § 182(c)(2)(A), (e), 42 U.S.C. § 7511a(c)(2)(A), (e). An 

attainment demonstration includes both a technical analysis that uses emissions 

inventory data input to computer models to predict whether the area will meet the 

applicable ozone standard by the deadline, and the State’s plan for achieving the 

Case: 10-71457 05/05/2011 Page: 17 of 64 ID: 7741631 DktEntry: 31
8 

actual emissions reductions needed for attainment (its “control strategy”). BCCA 

Appeal Group v. EPA, 355 F.3d 817, 823 (5th Cir. 2003); El Comité Para El 

Bienestar De Earlimart v. Warmerdam, 539 F.3d 1062, 1066 (9th Cir. 2008); see 

also 40 C.F.R. § 51.112. This attainment demonstration “must be based on 

photochemical grid modeling or any other analytical method determined by the 

Administrator, in the Administrator’s discretion, to be at least as effective.” 

Environmental Defense v. EPA, 369 F.3d 193, 197 (2nd Cir. 2004) (quoting CAA 

§ 182(c)(2)(A), 42 U.S.C. § 7511a(c)(2)(A)). A photochemical grid model uses as 

its basis a “base year” emissions inventory. It analyzes how emissions from 

various sources combine to create ozone and attempts to predict how changes to 

different variables, such as meteorology, population growth, and planned 

emissions reductions from different sources would affect ambient ozone 

concentrations in the attainment year. See id. at 197. 

Emissions inventory data are important for both the attainment demonstration 

and the related “rate-of-progress” demonstration required by CAA sections 

172(c)(2) and 182(c)(2), 42 U.S.C. §§ 7502(c)(2), 7511a(c)(2). The emissions 

inventory is a comprehensive, accurate, and current inventory of actual emissions 

from all sources of the relevant pollutant(s) in the area as of a specific calendar 

year. See CAA §§ 172(c)(3), 182(a)(1), 42 U.S.C. §§ 7502(c)(3), 7511a(a)(1); see 

also 70 Fed. Reg. 71,612, 71,677 (Nov. 29, 2005) (noting that several CAA ozone 

Case: 10-71457 05/05/2011 Page: 18 of 64 ID: 7741631 DktEntry: 31
9 

planning requirements, including milestones that measure progress toward 

attainment, are “keyed to” the emissions inventory). States are required to submit 

new emissions inventories every three years. See CAA § 182(a)(3), 42 U.S.C. § 

7511a(a)(3); 40 C.F.R. § 51.30(b). Emissions inventories should include both 

anthropogenic and biogenic sources of ozone precursor emissions from stationary, 

area, and mobile sources capable of affecting air quality within the nonattainment 

area, so that emissions from these sources are adequately accounted for in 

modeling demonstrations and control strategy development. See “General 

Preamble for Implementation of Title I of the Clean Air Act Amendments of 

1990,” 57 Fed. Reg. 13,498, 13,502 (April 16, 1992) (“General Preamble”). 

Because most emission sources do not monitor and report emissions continuously, 

emissions inventories are, by nature, “estimates of actual releases to the 

atmosphere.” 70 Fed. Reg. at 71,666. After developing a “base year” emissions 

inventory, States use modeling and other analyses to calculate projected future 

emissions and target emission levels, which then inform the State’s development of 

progress milestones and control strategies for attaining the NAAQS. See General 

Preamble, 57 Fed. Reg. at 13,507-10. 

C. Regulation of Mobile Sources Under the CAA

While the CAA assigns to States the primary responsibility for developing 

SIPs, EPA has the primary responsibility for regulating emissions from mobile 

Case: 10-71457 05/05/2011 Page: 19 of 64 ID: 7741631 DktEntry: 31
10 

sources through Federal regulation. See generally CAA §§ 202-219, 42 U.S.C. §§ 

7521-7554. States are generally preempted from establishing their own emission 

standards for mobile sources. CAA § 209(a), (e)(1), 42 U.S.C. § 7543(a), (e)(1). 

However, States may rely on the emissions reductions from Federal mobile source 

emission standards in developing their SIPs. CAA § 182(b)(1)(C), 42 U.S.C. § 

7511a(b)(1)(C). 

 The CAA allows California to petition EPA for a waiver of the Federal 

preemption of mobile source emission standards. CAA § 209(b), 42 U.S.C. § 

7543(b). The CAA also allows California to seek authorization from EPA to adopt 

and enforce emission standards for nonroad engines or vehicles. CAA § 209(e)(2), 

42 U.S.C. § 7543(e)(2). In keeping with the broad discretion that Congress 

intended to give California, EPA is required to grant the waiver or authorization 

unless it affirmatively finds that: California does not need the standards; 

California’s determination that its standards would be, in the aggregate, at least as 

protective of public health and welfare as the Federal standards was arbitrary and 

capricious; or that California’s standards are not consistent with CAA § 209. CAA 

§§ 209(b), (e)(2), 42 U.S.C. §§ 7543(b), (e)(2); see Motor & Equip. Mfrs. Ass’n, 

Inc. v. EPA, 627 F.2d 1095, 1120-23 (D.C. Cir. 1979). 

 In enacting these provisions, Congress recognized “California’s unique 

problems and pioneering efforts” respecting air quality. Motor & Equip. Mfrs. 

Case: 10-71457 05/05/2011 Page: 20 of 64 ID: 7741631 DktEntry: 31
11 

Ass’n, 627 F.2d at 1110, quoting S. Rep. No. 90-403, at 33 (1967). As other States 

rely on emissions reductions from Federal mobile source emission standards in 

developing their SIPs, California relies on the emissions reductions from its own 

mobile source standards, which have been exempted from federal preemption, in 

developing SIPs, including the SIP at issue in this case. 

D. EPA Action on the San Joaquin Valley One-Hour Ozone Plan 

 The San Joaquin Valley ozone nonattainment area includes eight counties: 

San Joaquin, Stanislaus, Merced, Madera, Fresno, Kings, Tulare, and the valley 

portion of Kern. This area was classified in 1991 as a serious nonattainment area 

for the one-hour ozone NAAQS. 56 Fed. Reg. 56,694, 56,729 (Nov. 6, 1991). The 

CAA, as amended in 1990, set a deadline of November 15, 1999, for serious ozone 

nonattainment areas to come into attainment. 42 U.S.C. § 7511(a)(1). EPA 

approved California’s serious area SIP for the San Joaquin Valley on January 8, 

1997. 62 Fed. Reg. 1150 (Jan. 8, 1997). In 2001, EPA issued a finding that the 

San Joaquin Valley Area had failed to attain the one-hour ozone standard by the 

required deadline. 66 Fed. Reg. 56,476 (Nov. 8, 2001). Accordingly, by operation 

of law, the area was reclassified to severe nonattainment for the one-hour ozone 

NAAQS with a new attainment deadline, November 15, 2005. Id.; 42 U.S.C. § 

7511(a)(1). After determining that sufficient controls could not be implemented in 

time for the area to come into attainment by the deadline, California requested a 

Case: 10-71457 05/05/2011 Page: 21 of 64 ID: 7741631 DktEntry: 31
12 

voluntary reclassification to extreme nonattainment under the one-hour ozone 

standard, as provided under CAA section 181(b)(3), 42 U.S.C. § 7511(b)(3). 69 

Fed. Reg. 8126 (Feb. 23, 2004); see Letter from Catherine Witherspoon, Executive 

Officer, California Air Resources Board, to Wayne Nastri, Regional Administrator, 

EPA Region 9 (Jan. 9, 2004) (transmitting request for reclassification of the San 

Joaquin Valley area to extreme nonattainment for the one-hour ozone standard). In 

2004, EPA granted California’s request, establishing the area’s deadline for 

attaining the one-hour ozone standard as November 15, 2010. 69 Fed. Reg. 20,550 

(Apr. 16, 2004). 

 California adopted the San Joaquin Valley “Extreme Ozone Attainment 

Demonstration Plan” on October 8, 2004, and submitted it to EPA on November 

15, 2004. 74 Fed. Reg. 33,933, 33,934 (July 14, 2009); see Letter from Catherine 

Witherspoon, Executive Officer, California Air Resources Board, to Wayne Nastri, 

Regional Administrator, EPA Region 9 (Nov. 15, 2004). California amended the 

Plan (hereinafter the “2004 Plan”) in October 2005 to synchronize the rulemaking 

schedule with that in the San Joaquin Valley’s plan for the NAAQS for particulate 

matter less than or equal to 10 micrometers in diameter. 74 Fed. Reg. at 33,934. 

These amendments were submitted to EPA on March 6, 2006. Id. In August 2008, 

the District adopted “Clarifications Regarding the 2004 Extreme Ozone Attainment 

Demonstration Plan,” and California submitted them to EPA on September 5, 

Case: 10-71457 05/05/2011 Page: 22 of 64 ID: 7741631 DktEntry: 31
13 

2008. See Letter from James N. Goldstene, Executive Officer, California Air 

Resources Board, to Wayne Nastri, Regional Administrator, EPA Region 9 (Sept. 

5, 2008)(with enclosures). The 2008 Clarifications updated information on certain 

control programs in the SIP. 

 In 2008, EPA proposed to approve the 2004 Plan in full. 73 Fed. Reg. 61,381 

(Oct. 16, 2008). In response to comments on the proposed full approval, EPA 

withdrew the original proposal and instead re-proposed to approve certain elements 

of the 2004 Plan: the attainment demonstration, the rate-of-progress demonstration 

and related contingency measures, other control measures, and the District’s rule 

on school bus fleets. 74 Fed. Reg. 33,933 (July 14, 2009). EPA proposed to 

disapprove the Plan’s contingency measures that would be triggered if the area 

failed to attain the standard by its deadline. Id. After receiving supplemental 

technical information from California, EPA proposed in October 2009 to approve 

the contingency measures in the 2004 Plan. 74 Fed. Reg. 50,936 (Oct. 2, 2009). 

On March 8, 2010, EPA published final approval of all elements of the 2004 Plan. 

75 Fed. Reg. 10,420 (Mar. 8, 2010). Along with the final approval notice, EPA 

released a technical support document, which provides detailed analysis in support 

of EPA’s action to approve the 2004 Plan and provides detailed responses to 

comments that EPA received on the July 2009 and October 2009 proposals. See

Office of Air Planning, Air Division, EPA Region 9, Final Technical Support 

Case: 10-71457 05/05/2011 Page: 23 of 64 ID: 7741631 DktEntry: 31
14 

Document for the Action on the San Joaquin Valley Extreme One-Hour Ozone 

Standard Plan and San Joaquin Portion of the 2003 State Strategy, Dec. 11, 2009 

(hereinafter “TSD”). 

STANDARD OF REVIEW

 The Administrative Procedure Act, 5 U.S.C. § 706(2)(A), provides the 

standard of review for EPA actions under CAA section 307(b), 42 U.S.C. § 

7607(b).2/ Vigil v. Leavitt, 381 F.3d 826, 833 (9th Cir. 2004). Under this standard, 

a reviewing court may not set aside a final agency action unless it is “arbitrary, 

capricious, an abuse of discretion, or otherwise not in accordance with law.” 5 

U.S.C. § 706(2)(A); Alaska Dep’t of Envtl. Conservation v. EPA, 540 U.S. 461, 

496-97 (2004). This standard “is narrow and a court is not to substitute its 

judgment for that of the agency.” Motor Vehicle Mfrs. Ass’n v. State Farm Mut. 

Auto. Ins. Co., 463 U.S. 29, 43 (1983). An agency’s action is presumed to be valid 

as long as “the agency considered the relevant factors and articulated a rational 

connection between the facts found and the choices made.” Northwest Ecosystem 

Alliance v. U.S. Fish & Wildlife Serv., 475 F.3d 1136, 1140 (9th Cir. 2007) 

(quoting Nat’l Ass’n of Home Builders v. Norton, 340 F.3d 835, 841 (9th Cir. 

2003) and Baltimore Gas & Elec. Co. v. NRDC, 462 U.S. 87, 105 (1983)). 

 

2/

 This case involves an EPA action that is not listed in CAA section 307(d)(1), 42 

U.S.C. § 7607(d)(1), and thus is not subject to the substitute judicial review 

provisions of CAA section 307(d), 42 U.S.C. § 7607(d). 

Case: 10-71457 05/05/2011 Page: 24 of 64 ID: 7741631 DktEntry: 31
15 

 Where an agency decision involves the evaluation of complex scientific 

issues and data within the agency’s technical expertise, deference is strongly 

warranted. Baltimore Gas & Elec. Co., 462 U.S. at 103; NW Envtl. Advocates v. 

Nat’l Marine Fisheries Serv., 460 F.3d 1125, 1133 (9th Cir. 2006) (“[W]e must ‘be 

mindful to defer to agency expertise, particularly with respect to scientific matters 

within the purview of the agency.’” (quoting Klamath-Siskiyou Wildlands Ctr. v. 

Bureau of Land Mgmt., 387 F.3d 989, 993 (9th Cir. 2004)); Appalachian Power 

Co. v. EPA, 135 F.3d 791, 801-02 (D.C. Cir. 1998) (Deference to EPA expertise is 

particularly warranted “when dealing with a statutory scheme as unwieldy and 

science-driven as the Clean Air Act.”). 

 Under the narrow APA standard of review, “the focal point for judicial 

review should be the administrative record already in existence, not some new 

record made initially in the reviewing court.” Camp v. Pitts, 411 U.S. 138, 142 

(1973); see also Fla. Power & Light Co. v. Lorion, 470 U.S. 729, 743-44 (1985). 

Therefore, review is not to be based upon subsequent events or materials received 

or developed after the agency’s decision. Rather, “[t]he task of the reviewing court 

is to apply the appropriate APA standard of review to the agency decision based on 

the record the agency presents to the reviewing court.” Fla. Power & Light Co. v. 

Lorion, 470 U.S. at 743-44 (citations omitted). 

Case: 10-71457 05/05/2011 Page: 25 of 64 ID: 7741631 DktEntry: 31
16 

 Questions of statutory interpretation are governed by the two-step test set 

forth in Chevron U.S.A. Inc. v. NRDC, 467 U.S. 837, 842-43 (1984). Under the 

first step, the reviewing court must determine “whether Congress has directly 

spoken to the precise question at issue.” Id. at 842. If congressional intent is clear 

from the statutory language, the inquiry ends. Id. at 842-43. If the statute is silent 

or ambiguous on a particular issue, the Court must accept the agency’s 

interpretation if it is reasonable; the agency’s interpretation need not represent the 

only permissible reading of the statute nor the reading that the Court might 

originally have given it. Id. at 843 & n.11; Chemical Mfrs. Ass’n v. NRDC, 470 

U.S. 116, 125 (1985); see also Leslie Salt Co. v. United States, 55 F.3d 1388, 1394 

(9th Cir. 1995). However, as Justice Scalia recently observed in Entergy Corp. v. 

Riverkeeper, Inc., 129 S. Ct. 1498, 1505 n.4 (2009), the key inquiry is simply 

whether the agency’s interpretation is reasonable, for “surely if Congress has 

directly spoken to an issue then any agency interpretation contradicting what 

Congress has said would be unreasonable.” 

 An agency’s interpretation of its own regulations also “[is entitled to] 

substantial deference,” and may not be overruled “unless an ‘alternative reading is 

compelled by the regulations’ plain language or by other indications of the 

[agency’s] intent at the time of the regulation’s promulgation.’” Thomas Jefferson 

Univ. v. Shalala, 512 U.S. 504, 512 (1994) (citation omitted); Fed. Express Corp. 

Case: 10-71457 05/05/2011 Page: 26 of 64 ID: 7741631 DktEntry: 31
17 

v. Holowecki, 552 U.S. 389, 395-96 (2008); Cent. Ariz. Water Conservation Dist. 

v. EPA, 990 F.2d 1531, 1539 (9th Cir. 1993) (citations omitted). Such deference is 

particularly appropriate where the regulations “concern[] ‘a complex and highly 

technical regulatory program,’ in which the identification and classification of 

relevant criteria ‘necessarily require significant expertise and entail the exercise of 

judgment grounded in policy concerns.’” Thomas Jefferson Univ., 512 U.S. at 512 

(citation omitted); Cent. Ariz., 990 F.2d at 1539-40. 

SUMMARY OF THE ARGUMENT

 EPA based its approval of the revisions to the California SIP for the one-hour 

ozone standard for the San Joaquin Valley extreme nonattainment area on 

information that California provided, which showed that the proposed SIP 

revisions fulfilled the requirements of the CAA, and on EPA’s reasonable 

interpretations of the CAA. First, EPA reasonably interpreted the CAA’s 

requirements for emissions inventories to allow “current” and “accurate” to mean 

that the emissions inventory data were current and accurate at the time California 

submitted them to EPA. Second, EPA’s reliance upon the emissions inventory 

data that California submitted with the 2004 Plan, instead of data submitted several 

years later for a different plan for a different NAAQS, was supported by the 

administrative record and was not arbitrary or capricious, and accordingly did not 

violate the APA. Third, EPA reasonably interpreted the CAA to allow California 

Case: 10-71457 05/05/2011 Page: 27 of 64 ID: 7741631 DktEntry: 31
18 

to rely in its SIP on emissions reductions from California mobile source 

regulations for which Federal preemption had been waived under the procedures 

established pursuant to CAA section 209. Fourth, EPA’s approval of the 

attainment demonstration in the 2004 Plan was consistent with the Agency’s longstanding interpretation of the CAA’s provisions for ozone nonattainment areas, and 

Petitioners confuse the separate and distinct CAA requirements governing 

attainment demonstrations and attainment determinations. Finally, Petitioners 

impermissibly rely on emissions data that post-date EPA’s action, and thus were 

not in the administrative record, to support their challenge to EPA’s action. For 

these reasons, as discussed below, Petitioners’ challenges to EPA’s approval of the 

San Joaquin Valley Area SIP must fail. 

ARGUMENT

 The Clean Air Act sets out specific and detailed requirements for SIPs. See, 

e.g., CAA §§ 110(a)(2), 171-193, 42 U.S.C. §§ 7410(a)(2), 7501-7515. Because 

the San Joaquin Valley Area is classified as an extreme nonattainment area for the 

one-hour ozone NAAQS, it must have a SIP that meets the specific requirements 

for extreme ozone nonattainment areas in CAA section 182, 42 U.S.C. § 7511a, as 

well as the applicable nonattainment area SIP requirements in CAA section 172, 

Case: 10-71457 05/05/2011 Page: 28 of 64 ID: 7741631 DktEntry: 31
19 

42 U.S.C. § 7502.3 See El Comité Para el Bienestar de Earlimart v. Warmerdam, 

539 F.3d. at 1066. Petitioners disagree with California’s 2004 Plan for the San 

Joaquin Valley Area to come into compliance with the one-hour ozone NAAQS, 

and they challenge EPA’s approval of the 2004 Plan on several grounds. See Pet. 

Br. at 24-51. For the reasons discussed below, EPA’s approval of the 2004 Plan 

was consistent with both the CAA and the APA and should be upheld. 

I. EPA Appropriately Relied on the Data Before It in Taking Action on the 

2004 Plan. 

A. EPA’s Interpretation of the CAA, Requiring Emissions Inventories to 

Be Comprehensive, Current, and Accurate as of the Time the State 

Submits a Proposed SIP, Is Reasonable. 

 Petitioners argue that EPA violated the CAA by approving the 2004 Plan 

based upon the data that California submitted with that plan. Pet. Br. at 24-29. 

Specifically, they argue that EPA should have relied upon emissions inventories 

that California submitted in 2007 in connection with the SIP for the eight-hour 

ozone NAAQS (“2007 Plan”), and that EPA’s reliance upon the emissions 

inventories in the 2004 Plan in its review of the 2004 Plan for the one-hour ozone 

NAAQS violated section 172(c)(3) of the CAA. Id. This argument must fail. 

 

3

 EPA revoked the one-hour standard because, when EPA promulgated the eighthour standard, EPA determined that the one-hour standard was no longer necessary 

to protect public health and the environment with an adequate margin of safety. 

EPA promulgated regulations specifying which requirements of CAA sections 172 

and 182, 42 U.S.C. §§ 7502, 7511a, would continue to apply for purposes of the 

one-hour standard after its revocation. 40 C.F.R. Part 51, Subpart X. 

Case: 10-71457 05/05/2011 Page: 29 of 64 ID: 7741631 DktEntry: 31
20 

EPA reasonably interprets the CAA’s requirement that States submit 

comprehensive, current, and accurate emissions inventories to mean that emissions 

inventories must be comprehensive, current, and accurate at the time they are 

submitted to EPA. CAA §§ 182(a)(1), (3), 42 U.S.C. §§ 7511a(a)(1), (3). Not 

only is EPA’s interpretation of the statutory language reasonable, but also it is 

entitled to heightened deference, because it involves the evaluation of complex 

scientific data within EPA’s technical expertise that should not be reversed unless 

“there is ‘simply no rational relationship’ between the means used to account for 

any imperfections and the situation to which those means are applied.” Am. Iron & 

Steel Inst. v. EPA, 115 F.3d 979, 1004 (D.C. Cir. 1997). 

 If agencies are constantly required to revise decisions when new or better data 

become available, the administrative process would never come to a close. See, 

e.g., Vermont Yankee Nuclear Power Corp. v. NRDC, 435 U.S. 519, 554-55 

(1978), citing ICC v. Jersey City, 322 U.S. 503, 514 (1944). See also Nance v. 

EPA, 645 F.2d 701, 717 (9th Cir. 1981) (“The administrative process cannot 

provide for the constant reopening of the record to consider new facts, and it is for 

the agency, not this court to determine when such reopening is appropriate, unless 

the failure to reconsider can be characterized an abuse of discretion.” (citations 

omitted)). Adopting this principle in the SIP context, EPA explained that “[t]he 

Clean Air Act requires that SIP inventories and control measures be based on the 

Case: 10-71457 05/05/2011 Page: 30 of 64 ID: 7741631 DktEntry: 31
21 

most current information and applicable models that are available when a SIP is 

developed.” Memorandum, John Seitz, Office of Air Quality Planning and 

Standards, and Margo Oge, Office of Transportation and Air Quality, “Policy 

Guidance on the Use of MOBILE6 for SIP Development and Transportation 

Conformity,” January 18, 2002 (“Seitz Memo”), at 9 (citing CAA section 

172(c)(3), 42 U.S.C. § 7502(c)(3), and 40 C.F.R. § 51.112(a)(1)). EPA has 

consistently applied this policy in approving SIPs. See TSD at 85. Further, the 

D.C. Circuit cited the Seitz Memo in upholding EPA’s approval of the attainment 

demonstration for the one-hour standard for the Washington, D.C., area, where the 

plan relied upon a mobile source emissions model and did not use the updated 

version of the model that had become available after the plan was submitted to 

EPA. “To require states to revise completed plans every time a new model is 

announced would lead to significant costs and potentially endless delays in the 

approval processes. EPA’s decision to reject that course, and to accept the use of 

[the existing mobile source emissions model] in this case, was neither arbitrary nor 

capricious.” Sierra Club v. EPA, 356 F.3d 296, 308 (D.C. Cir. 2004), amended in 

other part by Nos. 03-1084, 03-1103, 03-1115, 03-1152, 2004 WL 877850 (D.C. 

Cir. Apr. 16, 2004). 

 CAA sections 182(a)(1) and (3) require each State having an ozone 

nonattainment area to submit a “comprehensive, accurate, current inventory of 

Case: 10-71457 05/05/2011 Page: 31 of 64 ID: 7741631 DktEntry: 31
22 

actual emissions from all sources” as described in CAA section 172(c)(3), 42 

U.S.C. § 7502(c)(3) and “in accordance with guidance provided by the 

Administrator,” and to periodically update the inventory. 4 42 U.S.C. § 

7511a(a)(1), (a)(3). This emissions inventory, which reflects the State’s best 

estimates of emissions to the ambient air in a recent calendar year, provides the 

starting point, or “base year” inventory, for measuring the area’s progress toward 

attainment, for example, in the reasonable further progress demonstration required 

under CAA section 182(c)(2)(B), 42 U.S.C. § 7511a(c)(2)(B); see also CAA § 

182(b)(1)(B), 42 U.S.C. § 7511a(b)(1)(B) (defining “baseline emissions” for 

purposes of rate-of-progress plans). 

Base year emissions inventories necessarily cover a broad range of 

emissions sources for which actual emissions are difficult to measure or estimate. 

See generally 70 Fed. Reg. at 71,666 (emissions inventories are, by nature, 

“estimates of actual releases to the atmosphere”). In addition, States and EPA are 

 

4

 After the one-hour ozone NAAQS was revoked, the San Joaquin Valley was no 

longer subject to a specific obligation to adopt and submit emissions inventories 

for the one-hour ozone standard. See 40 C.F.R. §§ 51.905(a)(1)(i), 51.900(f)(4). 

Thus, EPA’s approval of the 2004 Plan did not constitute an “action” on the 

emissions inventories under CAA section 172(c)(3) or 182(a)(1). Had EPA 

deemed the emissions inventories to satisfy a specific CAA requirement, the 

governing provision would have been CAA section 182(a)(1), 42 U.S.C. § 

7511a(a)(1). See also 57 Fed. Reg. 13,498, 13,503 (Apr. 16, 1992) (for ozone 

nonattainment areas, “[b]y meeting the specific inventory requirements [of CAA 

section 182(a)(1)], the State will also satisfy the general inventory requirements of 

[CAA] section 172(c)(3)”).  

Case: 10-71457 05/05/2011 Page: 32 of 64 ID: 7741631 DktEntry: 31
23 

continually working to improve the accuracy of these inventories, including 

developing new mobile source emissions models. As a result, emissions 

inventories submitted in later years routinely reflect improved methodologies for 

estimating emissions. See TSD at 84-88; 40 C.F.R. pt. 51, subpart A. Because of 

the ever-evolving nature of calculating emissions inventories, EPA has explained 

in numerous guidance documents how States may develop adequate base year 

emissions inventories based on the most current mobile source model available at 

the time of SIP development and how, in turn, these emissions inventories should 

be used in modeling and attainment demonstrations for nonattainment areas. See 

TSD at 84-87, citing, inter alia, General Preamble, 57 Fed. Reg. at 13,502-03, 

13508, 13,517; Office of Mobile Sources, EPA, “Procedures for Emissions 

Inventory Preparation, Volume IV: Mobile Source,” June 1992. 

 EPA’s approval of the rate-of-progress and attainment demonstrations in the 

2004 Plan under CAA sections 172(c)(2), 181(a), and 182(c)(2), 42 U.S.C. §§ 

7502(c)(2), 7511(a), and 7511a(c)(2), based on an evaluation of the emissions 

inventories that California submitted with the 2004 Plan, was consistent with the 

CAA. See 75 Fed. Reg. at 10,422. EPA determined that the 2000 base year 

emissions inventory in the 2004 Plan was comprehensive, accurate, and current at 

the time it was submitted on November 15, 2004, and that this inventory and the 

projected emissions inventories for 2008 and 2010 were developed consistent with 

Case: 10-71457 05/05/2011 Page: 33 of 64 ID: 7741631 DktEntry: 31
24 

EPA’s guidance. See 75 Fed. Reg. at 10,422; 74 Fed. Reg. at 33,940; TSD at 84-

89. Thus, EPA reasonably determined that the base year emissions inventory and 

the projected emissions inventories provided appropriate bases for the rate-ofprogress and attainment demonstrations in the 2004 Plan. TSD at 84-89. 

 Petitioners point out that California updated its on-road mobile source model 

in 2006, two years after submitting the 2004 Plan to EPA, and that EPA approved 

the use of the new model in 2008. California used the new model when it 

developed the emissions inventory it included with its 2007 Plan for the eight-hour 

ozone standard. While these developments were taking place, EPA was evaluating 

the 2004 Plan, and, in October 2008, EPA initially proposed to approve the 2004 

Plan. 73 Fed. Reg. 61,381 (Oct. 16, 2008). EPA issued the final approval in 

March 2010. 75 Fed. Reg. 10,420 (March 8, 2010). Notwithstanding the new 

emissions estimates that California developed and submitted to EPA with the 2007 

Plan, EPA was obligated under CAA section 110(k), 42 U.S.C. § 7410(k), to act on 

the 2004 Plan, and EPA did so consistent with the applicable CAA and regulatory 

requirements. 

 After Petitioners filed their Opening Brief, this Court issued an opinion in 

Association of Irritated Residents v. EPA, 632 F.3d 584 (9th Cir. 2011) (“A.I.R.”).5

 

 

5

 One petition for rehearing or rehearing en banc has been submitted. Docket Nos. 

09-71383 and 09-71404 (consolidated), Docket No. 37, Intervenor-Pending South 

Coast Air Quality Management District, Petition for Panel Rehearing and Petition 

Case: 10-71457 05/05/2011 Page: 34 of 64 ID: 7741631 DktEntry: 31
25 

That case involved EPA’s action on proposed revisions to the SIP for the one-hour 

ozone standard for the Los Angeles-South Coast Air Basin. Id at 587-88. An 

approved SIP for the area was in place, but after conducting new modeling for the 

one-hour ozone standard, California submitted to EPA proposed SIP revisions, 

including a revised attainment demonstration that relied on additional control 

measures. Id. at 589. California later withdrew certain of the proposed additional 

control measures and the State specifically represented that the currently approved 

plan was not sufficient to provide for attainment. Id. EPA approved the control 

measures that had not been withdrawn. Id. at 589-90. However, EPA disapproved 

the attainment demonstration because California had substantially based the 

attainment demonstration upon emissions reductions resulting from the withdrawn 

control measures. Id. This Court held that EPA’s action was arbitrary and 

capricious, because EPA had a duty under CAA section 110(l) to evaluate whether 

the SIP, as a whole, would provide for attainment of the NAAQS when EPA 

approved a revision to the already approved SIP. Id. at 590-91. 

 Although both the A.I.R. case and this case involve EPA action on attainment 

demonstration SIP submittals, there are several pivotal distinctions. In A.I.R., the 

State already had an approved attainment demonstration for the one-hour ozone 

 

for Rehearing En Banc. This Court has set a deadline of May 5, 2011, for EPA to 

file a petition for rehearing or rehearing en banc. Docket Nos. 09-71383 and 09-

71404 (consolidated), Docket No. 34, Order Granting Respondent’s Motion for a 

45-Day Extension for Filing a Petition for Panel Rehearing or Rehearing En Banc.

Case: 10-71457 05/05/2011 Page: 35 of 64 ID: 7741631 DktEntry: 31
26 

NAAQS extreme nonattainment area, but the State submitted a replacement 

attainment demonstration to address deficiencies that the State had expressly 

identified. Id. at 589. EPA disapproved the submitted attainment demonstration 

for the one-hour ozone NAAQS, leaving in place the existing attainment 

demonstration for the one-hour ozone NAAQS, which the State had characterized 

as deficient. Id. This was precisely the defect that this Court indicated EPA 

should have addressed. 

 Here, EPA approved a SIP revision for the San Joaquin Valley Area for the 

one-hour ozone NAAQS that California had submitted pursuant to a CAA 

requirement, and California later submitted proposed SIP revisions for the San 

Joaquin Valley Area for the eight-hour ozone NAAQS. These SIP submittals were 

required under the CAA; California did not determine that the SIP for the one-hour 

ozone standard for the San Joaquin Valley Area was in any way deficient. Further, 

the issue in A.I.R. was whether EPA correctly evaluated the 2004 Plan under CAA 

section 110(l). Here, the question is whether EPA reasonably interpreted the 

statutory language, “current” and “accurate” in CAA section 182(a)(1), 42 U.S.C. 

§ 7511a(a)(1). Thus, nothing in A.I.R. resolved the legal issues presented in this 

case. 

 For these reasons, EPA’s finding that the emissions inventories in the 2004 

Plan provided an appropriate basis for approving the rate-of-progress and 

Case: 10-71457 05/05/2011 Page: 36 of 64 ID: 7741631 DktEntry: 31
27 

attainment demonstrations in the 2004 Plan was reasonable and was consistent 

with the requirements of the CAA. See, e.g., Latino Issues Forum v. EPA, 558 

F.3d 936, 943-44 (9th Cir. 2009) (where language of the CAA was ambiguous and 

EPA’s statutory interpretation was reasonable, this Court upheld EPA’s 

interpretation.). Nothing in A.I.R. disturbs this conclusion. 

B. Requiring California to Use the Updated Model for the 2004 Plan 

Would Have Been Inconsistent with EPA Guidance and Practice. 

 Petitioners also argue that EPA’s reliance on the data in the 2004 Plan was 

arbitrary and capricious and therefore violated the APA. Pet. Br. at 29-32. This 

argument fails as well. EPA has well-established criteria and procedures for 

evaluating SIP submittals, EPA followed these criteria, and EPA explained the 

rationale for its action. See, e.g., TSD at 83-91. EPA’s action, therefore, was not 

arbitrary or capricious. 

 This Court must “apply the appropriate APA standard of review to the agency 

decision based on the record the agency presents to the reviewing court.” Florida 

Power & Light Co. v. Lorion, 470 U.S. at 743-44 (citations omitted). Here, the 

administrative record shows that EPA “considered the relevant factors and 

articulated a rational connection between the facts found and the choices made.” 

Northwest Ecosystem Alliance v. U.S. Fish & Wildlife Serv., 475 F.3d at 1140. 

 The TSD explains in detail EPA’s rationale for relying on the emissions 

inventory that was submitted with the 2004 SIP revision. The 2004 Plan used the 

Case: 10-71457 05/05/2011 Page: 37 of 64 ID: 7741631 DktEntry: 31
28 

mobile source model that was the most current available for inventory purposes at 

the time California prepared the submission. TSD at 84. As discussed above, 

EPA’s long-standing policy is that States should use the most current mobile 

source model available at the time it is developing a SIP. TSD at 84-86. The TSD 

discusses several documents that state EPA’s position, applied here, that States 

need not revise submitted SIPs to reflect the availability of models that become 

available after the SIP was submitted to EPA for approval. See TSD at 85. 

 Petitioners contend that EPA violated the APA because, when EPA approved 

the SIP revisions, the data in the 2004 Plan were allegedly wrong, and EPA 

allegedly knew that the data were wrong. Pet. Br. at 29. This contention 

mischaracterizes the legal issue, which is whether EPA acted arbitrarily or 

capriciously in reviewing the 2004 Plan with the emissions inventories that 

California submitted with that Plan. EPA concluded, based on the information it 

had, that the emissions inventories in the 2004 Plan were comprehensive, accurate, 

and current at the time California developed and submitted the 2004 Plan. TSD at 

84-87. The fact that subsequent inventories submitted by the State contain 

different numbers does not make the earlier emissions inventories “wrong.” If this 

were the case, EPA could never rely on any emissions inventory in approving a 

SIP, because air quality agencies regularly improve the accuracy of their emissions 

estimates by collecting inventory data, updating methodologies, and improving 

Case: 10-71457 05/05/2011 Page: 38 of 64 ID: 7741631 DktEntry: 31
29 

emission factors, see TSD at 87, and States routinely submit these revised 

emissions inventories to EPA, as required by the Act. See CAA § 182(a)(3), 42 

U.S.C. § 7511a(a)(3). 

 Moreover, Petitioners fail to substantiate their assertion that the emissions 

inventory data submitted by the State in 2007 made the data in the 2004 Plan 

“wrong” or otherwise undermined the validity of the 2004 Plan. Petitioners’ 

argument essentially rests on the premise that the 2007 changes to the NOx 

inventory estimates “significantly altered the understanding of the relationship 

between NOx and VOC emissions and ambient concentrations of ozone.” Pet. Br. 

at 29-30. In support of this assertion, Petitioners point to language in the 2004 and 

2007 submittals which they claim shows that while the 2004 Plan had predicted 

that reductions in ambient ozone concentrations would be affected roughly equally 

by reductions in either NOx or VOC, the 2007 Plan allegedly showed that 

“reaching the same level of ozone concentrations can only be achieved through 

significant reductions in NOx, and that VOC reductions ‘will not change the NOx 

carrying capacity measurably.’” Pet. Br. at 31. Petitioners assert that this “new, 

contradictory information” in the 2007 Plan invalidated the assumptions relied 

upon in the 2004 Plan, and that EPA was obligated to provide a basis for either 

ignoring this new data or reconciling it with the information in the 2004 Plan. Pet. 

Br. at 31-32. 

Case: 10-71457 05/05/2011 Page: 39 of 64 ID: 7741631 DktEntry: 31
30 

 These arguments are unavailing. First, Petitioners take the language in the 

2007 Plan about the relationship between NOx and VOC emissions on ozone 

concentrations out of context. The quoted language in the 2007 Plan states, more 

fully, that for certain monitoring sites “that are projected to have the worst ozone 

problems in 2020, reductions in VOC emissions will assist in reducing ozone levels 

early on in the control program, but will not change the NOx carrying capacity 

measurably.” 6 2007 Plan at 3-9 (emphasis added). As explained further in the 

2007 Plan, the District’s modeling analyses “indicated that VOC control would be 

advantageous in the beginning years of the control program” but that “as more 

NOx is reduced the curved lines transition to flat indicating that further VOC 

emissions reductions are not useful.” Id. Thus, the conclusion in the 2007 Plan 

was not that VOC reductions would not help reduce ozone levels, but rather that 

VOC reductions would become less useful as ambient NOx and ozone levels 

decline. The portions of the 2007 Plan cited by Petitioners describe a time period 

later than, and thus not relevant for, the 2010 attainment date for the one-hour 

ozone standard. See TSD at 90. 

 Second, Petitioners’ arguments appear to rest on a fundamental 

misunderstanding of the information submitted in the 2007 Plan. In support of 

their claim that the 2007 inventory data undermined the assumptions in the 2004 

 

6

 “Carrying capacity” is the level of emissions that the atmosphere can “carry” and 

still demonstrate attainment. 2004 Plan at 5-9 n.2. 

Case: 10-71457 05/05/2011 Page: 40 of 64 ID: 7741631 DktEntry: 31
31 

Plan, Petitioners cite to the discussions about the Valley’s “carrying capacity” in 

both the 2004 Plan and the 2007 Plan. Pet. Br. at 31-32. The 2004 Plan included a 

diagram plotting the carrying capacity for the one-hour ozone standard at 

Bakersfield in 2010. TSD at 90. The 2007 Plan included a diagram plotting the 

carrying capacity for the eight-hour ozone standard at Arvin in 2020. The diagram 

in the 2004 Plan has isopleths7

 in increments of 5 parts per billion, ranging from 95 

parts per billion to 130 parts per billion, to reflect the one-hour ozone standard of 

0.12 parts per million.8

 TSD at 90. The diagram in the 2007 Plan has isopleths in 

increments of 1 part per billion, ranging from 80 parts per billion to 97 parts per 

billion, to reflect the eight-hour ozone standard of 0.08 parts per million.9

 The 

2007 Plan specifically states that the modeling results for the eight-hour standard 

could not be used to evaluate current ozone levels (i.e., to evaluate the 2004 Plan): 

“[S]ince 2020 is expected to have significantly fewer emissions than currently exist 

in the inventory, 2020 modeling results cannot be used to evaluate ozone responses 

at current emission levels near 600 tpd of NOx.” 2007 Plan at 3-11. Accordingly, 

 

7

 An isopleth is a line on a graph showing concentrations of ozone in the ambient 

air as functions of NOx and VOC reductions. 

7

 A concentration of 0.12 parts per million (the level of the one-hour ozone 

standard) is equivalent to 120 parts per billion. Likewise, a concentration of 0.08 

parts per billion (the level of the eight-hour ozone standard) is equivalent to 80 

parts per billion. 

8 Generally, an area is considered to be attaining the eight-hour ozone standard 

when ambient ozone concentrations are less than or equal to 0.084 parts per 

million, based on the rounding convention in 40 C.F.R. pt. 50, Appx. I. 

Case: 10-71457 05/05/2011 Page: 41 of 64 ID: 7741631 DktEntry: 31
32 

Petitioners’ reliance upon these portions of the 2004 Plan and 2007 Plan is 

misplaced. Given the complex technical issues raised by a revised emissions 

inventory prepared for a different ozone NAAQS and for a different time period, 

EPA reasonably concluded that the existence of the 2007 emissions data did not, in 

itself, warrant a disapproval of the 2004 Plan.10

 Under the APA, this Court must ensure that EPA did not rely on factors 

which Congress did not intend it to consider, entirely fail to consider an important 

aspect of an issue, offer an explanation for its determination that contravenes the 

evidence before it, or provide an explanation that is so implausible that it could not 

be ascribed to a difference in view or the product of EPA’s expertise. Lands 

Council v. McNair, 537 F.3d 981, 993 (9th Cir. 2008) (en banc). Here, EPA 

reasonably followed its longstanding practice and relied upon the data before it. 

Furthermore, EPA did not ignore the data in the 2007 Plan, but reasonably 

concluded, given the variety of factors that EPA evaluates in determining whether 

an area will attain, the data in the 2007 Plan did not undermine the rate-of-progress 

or attainment demonstration in the 2004 Plan. TSD at 86-91. Accordingly, EPA’s 

approval of the 2004 Plan was consistent with the requirements of the APA. 

 

10 The State and the District have performed air quality modeling to evaluate the 

revised inventory’s effect on ozone levels in the Valley and this modeling analysis 

forms the basis of the attainment demonstration for the eight-hour ozone standard 

in the 2007 Plan. EPA intends to evaluate and provide an opportunity for public 

comment on these analyses in the context of a rulemaking on the 2007 Plan. See 

TSD at 89 n.19, 90. 

Case: 10-71457 05/05/2011 Page: 42 of 64 ID: 7741631 DktEntry: 31
33 

II. EPA’s Treatment of California Waiver Measures Was Consistent with 

 the Requirements of the CAA. 

 Petitioners argue that EPA violated the CAA by approving the 2004 Plan 

without including in the SIP the statewide control measures for which EPA has 

waived Federal preemption under CAA § 209, 42 U.S.C. § 7543. 11 This argument 

is unavailing. The CAA recognizes California’s unique air quality problems and 

pioneering efforts to remedy those problems by allowing EPA to waive the CAA’s 

general prohibition on State regulation of emissions from mobile sources. See 74 

Fed. Reg. at 33,938-39. As discussed above, EPA must waive Federal preemption 

for California state regulations that are “in the aggregate, at least as protective of 

public health and welfare as applicable Federal standards” if these regulations meet 

certain conditions. CAA § 209(b), (e)(2), 42 U.S.C. § 7543(b), (e)(2) (the “waiver 

provisions”). In approving the 2004 Plan, EPA considered emissions reductions 

resulting from California regulations that had received waivers under CAA section 

209 (“waiver measures”). Against this background, it is reasonable for EPA to 

 

11 Petitioners assert that the plan also relies on State non-waiver measures that 

have not been submitted as part of the SIP, but they do not identify these particular 

measures. Pet. Br. at 34, 43, and 44. EPA’s position is that “non-waiver” 

measures (i.e., State measures not subject to the waiver process under section 209 

of the CAA) must be submitted and approved to be credited for SIP planning 

purposes, and EPA took affirmative steps to ensure that significant State nonwaiver measures, such as updated vehicle inspection and maintenance (I/M) 

program regulations, updated diesel and gasoline regulations, and updated 

consumer product regulations, were approved into the SIP prior to final action on 

the San Joaquin Valley One-Hour Extreme Area Plan. See 75 Fed. Reg. at 10,436. 

Case: 10-71457 05/05/2011 Page: 43 of 64 ID: 7741631 DktEntry: 31
34 

interpret the CAA to recognize California’s unique status regarding the regulation 

of emissions from mobile sources, and to allow air quality improvements resulting 

from such regulation to be counted in the air quality data that are considered in SIP 

submittals. 

A. EPA Reasonably Interprets the CAA’s SIP Provisions and Waiver 

Provisions to Give Effect to Both. 

 Petitioners argue that EPA’s action on the 2004 Plan violates the CAA 

because California did not submit for SIP approval statewide regulations that had 

already received EPA approval through the CAA section 209 waiver process, and 

that EPA must require California to submit these regulations for a second approval 

process as part of the SIP. Pet. Br. at 32-41. EPA’s procedures for addressing 

California regulations that have received waiver approval under CAA section 209 

reasonably give effect to both the CAA’s unique treatment of California mobile 

source control measures and to the CAA’s requirements for SIPs. Accordingly, 

EPA’s approval of the 2004 Plan must be upheld. 

 EPA’s interpretation of the CAA implements one of the fundamental tenets 

of statutory interpretation, “that a statute is to be considered in all its parts when 

construing any one of them.” Lexecon Inc. v. Milberg, Weiss, Bershad, Hynes & 

Lerach, 523 U.S. 26, 36 (1998). Likewise, in interpreting a statute, it is necessary 

to “look to the provisions of the whole law, and to its object and policy.” United 

States National Bank of Oregon v. Independent Insurance Agents, 508 U.S. 439, 

Case: 10-71457 05/05/2011 Page: 44 of 64 ID: 7741631 DktEntry: 31
35 

455 (1993) (quoting United States v. Heirs of Boisdore, 49 U.S. (8 How.) 113, 122 

(1849)). In Latino Issues Forum v. EPA, 558 F.3d at 933-34, this Court held that 

EPA had acted lawfully in applying its interpretation of the CAA, although both 

parties had proffered reasonable interpretations of the ambiguous language in the 

CAA. 

 In response to comments on this rulemaking, EPA clarified its interpretation 

of the CAA. Since the 1970 Clean Air Act Amendments initiated the requirement 

that States submit SIPs, EPA has never required California to submit mobile source 

waiver measures for approval into its SIP. However, through its approval of many 

California attainment demonstration SIP revisions, EPA has allowed California to 

take emission reduction credit for mobile source waiver measures, even though 

they are not in the SIP. In so doing, EPA has taken into account California’s 

unique and pioneering role in the development of mobile source regulations. 

Indeed, California’s motor vehicle emission standards predate EPA’s standards for 

motor vehicles, and the waiver provisions for California standards predate the 

advent of the SIP requirement itself. See 74 Fed. Reg. at 33,938. Moreover, 

Congress has retained the waiver provisions for California in all subsequent 

amendments to the Clean Air Act. See, e.g., Pub. L. No. 101-549, title II, § 222(b), 

104 Stat. 2502 (Nov. 15, 1990). 

Case: 10-71457 05/05/2011 Page: 45 of 64 ID: 7741631 DktEntry: 31
36 

 Thus, the structure and evolution of the Clean Air Act establish a single 

process under which California may be authorized to adopt and enforce its own 

mobile source emissions standards. Prior to the 1990 Clean Air Act Amendments, 

EPA had reasonably interpreted the Act in allowing California to count emissions 

reductions from its waiver measures in connection with SIPs, and the enactment of 

CAA section 193 in the 1990 Clean Air Act Amendments provided further 

statutory support for EPA’s interpretation.12 Pub. L. No. 101-549, § 108(l), 104 

Stat. 2469 (Nov. 15, 1990). 

CAA section 193 is a general savings clause that, among other things, 

provides for EPA statutory interpretations that predate the 1990 Clean Air Act 

Amendments to remain in effect, so long as they are not inconsistent with the Act. 

When Congress enacted section 193, it did not insert into the statute any language 

rendering EPA’s treatment of California’s motor vehicle standards inconsistent 

with the Act. Rather, as EPA observed in this rulemaking, the 1990 CAA 

Amendments “extended the California waiver provisions to most types of nonroad 

vehicles and engines, once again reflecting Congressional intent to provide 

California with the broadest possible discretion in selecting the best means to 

 

12 In relevant part, CAA section 193 states: “Each regulation, standard, rule, 

notice, order and guidance promulgated or issued by the Administrator under this 

chapter, as in effect before November 15, 1990, shall remain in effect according to 

its terms, except to the extent otherwise provided under this chapter, inconsistent 

with any provision of this chapter, or revised by the Administrator.” CAA § 193, 

42 U.S.C. § 7515. 

Case: 10-71457 05/05/2011 Page: 46 of 64 ID: 7741631 DktEntry: 31
37 

protect the health of its citizens and the public welfare.” 75 Fed. Reg. at 10,425. 

EPA pointed out that “[r]equiring the waiver measures to undergo SIP review in 

addition to the statutory waiver process is not consistent with providing California 

with the broadest possible discretion as to on-road and nonroad vehicle and engine 

standards” but would, instead, add to California’s regulatory burden and thus 

contravene Congress’s intent. Id. Moreover, where Congress intends State control 

measures that are otherwise preempted under title II of the Clean Air Act to be 

incorporated into SIPs, it has done so explicitly. See, e.g., CAA § 211(c)(4)(C), 42 

U.S.C. § 7545(c)(4)(C) (State fuels regulations), CAA § 211(m), 42 U.S.C. § 

7545(m) (oxygenated gasoline regulations); and CAA § 246, 42 U.S.C. § 7586 

(centrally fueled fleets). 

Accordingly, in CAA section 193, Congress effectively ratified EPA’s 

longstanding pre-1990 practice13 of allowing emission reduction credit for 

California standards that had received waivers of Federal preemption, 

notwithstanding the absence of the standards in the SIP itself. And even without 

considering section 193, the Act’s structure, evolution, and provision for the 

waiver of Federal preemption for California mobile source emissions standards 

support EPA’s long-standing interpretation of the CAA to allow California to rely 

 

13 See, e.g., 44 Fed. Reg. 60,758 (Oct. 22, 1979); 45 Fed. Reg. 63,843 (Sept. 26, 

1980); TSD at 95-99. 

Case: 10-71457 05/05/2011 Page: 47 of 64 ID: 7741631 DktEntry: 31
38 

on emission reductions resulting from waiver measures in SIPs, even though the 

waiver measures are not in the SIP itself. 

Moreover, the CAA does not require SIPs to contain all of the emissionsreducing control measures relied upon by a State to attain and maintain the 

NAAQS. SIP content requirements are set forth in CAA section 110(a)(2), 42 

U.S.C. § 7410(a)(2), of the Clean Air Act. In relevant part, CAA section 110(a)(2) 

provides that each SIP “shall – (A): include enforceable emission limitations and 

other control measures, means, or techniques (including economic incentives such 

as fees, marketable permits, and auctions of emissions rights), . . . , as may be 

necessary or appropriate to meet the applicable requirements of this chapter . . . .” 

(emphasis added). 42 U.S.C. § 7410(a)(2)(A). As a general matter, Federal 

measures, including those establishing emissions standards for mobile sources, are 

quantifiable, permanent, and independently enforceable by EPA and citizens 

without regard to whether they are approved into a SIP, and thus EPA has never 

found such measures to be “necessary or appropriate” to include in SIPs to support 

emissions reductions credit in attainment demonstrations. Section 209 of the CAA 

establishes a process under which EPA allows California’s “waiver measures” to 

substitute for Federal measures, and like the Federal measures for which they 

substitute, EPA has historically found, and continues to find, based on 

considerations of enforceability, permanence, and quantifiability, that such 

Case: 10-71457 05/05/2011 Page: 48 of 64 ID: 7741631 DktEntry: 31
39 

measures are not “necessary or appropriate” for California to include in its SIP to 

meet the applicable requirements of the CAA. 

Petitioners assert that failing to require that waiver measures be included in 

the SIP renders the resulting emissions reductions unenforceable and unverifiable. 

Pet. Br. at 33. This claim is inaccurate. First, the waiver process itself bestows 

enforcement authority on the State of California. In this rulemaking, EPA stated: 

CARB has as long a history of enforcement of vehicle/engine 

emissions standards as EPA, and CARB’s enforcement program is 

equally as rigorous as the corresponding EPA program. The history 

and rigor of CARB’s enforcement program lends assurance to 

California SIP revisions that rely on the emissions reductions from 

[waiver measures] in the same manner as EPA’s mobile source 

enforcement program lends assurance to other State’s SIPs in their 

reliance on emissions reductions from the [Federal Motor Vehicle 

Control Program]. 

 75 Fed. Reg. at 10,425. While it is true that citizens and EPA are not authorized 

to enforce California waiver measures under the Clean Air Act, because they are 

not in the SIP, citizens and EPA are authorized to enforce EPA standards in the 

event that vehicles operate in California without either California or EPA 

certification. See CAA §§ 202(a), 213(a)(3), 304(a)(1), (f), 42 U.S.C. §§ 7521(a), 

7547(a)(3), 7604(a)(1), (f). 

Second, EPA verifies the emission reductions from waiver measures through 

review and approval of California’s “EMFAC” motor vehicle emissions factor 

model used to estimate existing and future emissions from motor vehicles, which is 

Case: 10-71457 05/05/2011 Page: 49 of 64 ID: 7741631 DktEntry: 31
40 

analogous to the model used to show emission reductions resulting from Federal 

mobile source standards. As discussed in Section I above, California updates this 

model periodically to reflect updated methods and data, as well as newlyestablished emissions standards. In 2003, EPA approved the model that California 

used in developing the 2004 Plan for use in SIP development in California. 68 

Fed. Reg. 15,720 (April 1, 2003). Petitioners’ contention that emission reductions 

resulting from waiver measures are unverifiable lacks merit. Emissions reductions 

from California waiver measures are verifiable, as are emissions reductions 

resulting from Federal mobile source standards, which States other than California 

use in developing their SIPs. 

B. Allowing Emission Reduction Credit for California Waiver 

Measures Is Consistent with Allowing Emission Reduction Credit 

for Federal Mobile Source Control Measures. 

Petitioners assert that “all of the measures used to attain the standard, to 

demonstrate the required rate of progress in reducing emissions, or to satisfy the 

contingency measure requirements of the Act must be included in the SIP” and 

claim that “with limited exceptions, ARB has not submitted the State-adopted 

regulations relied upon in the extreme area plan.” Pet. Br. at 33. Petitioners 

further assert that because the State-adopted rules have not been submitted or 

approved by EPA as part of the SIP, EPA’s approval of the extreme area plan 

violates the Clean Air Act and EPA’s regulations. Id. at 35. In so stating, 

Case: 10-71457 05/05/2011 Page: 50 of 64 ID: 7741631 DktEntry: 31
41 

Petitioners ignore the fact that the CAA specifically allows States to rely on 

emissions reductions from Federal mobile source control measures, which are not 

approved into SIPs, in at least one instance, and that, in California, waiver 

measures substitute for Federal mobile source control measures. 

First, as stated above, under the CAA, States have the primary responsibility 

for developing SIPs, whereas EPA has the primary responsibility for developing 

emissions standards and other requirements for mobile sources. States other than 

California are allowed to, and generally do, take emissions reduction credit for 

Federal mobile source regulations to meet SIP planning requirements, including 

attainment demonstrations, rate of progress demonstrations, and contingency 

measures, because such measures are quantifiable, permanent, and independently 

enforceable. Such Federal mobile source regulations and other Federal control 

measures are not approved into SIPs. 

The CAA provisions for ozone nonattainment areas do not require emission 

reductions to have been made pursuant to a SIP-approved measure in order to be 

creditable to show that an area is progressing toward attainment. With one 

exception, the CAA does not explicitly address the issue of creditability from 

emissions control measures for the purposes of meeting reasonable further progress 

and attainment demonstration requirements. The single exception is CAA section 

182(b)(1)(C), which provides, “[E]missions reductions are creditable ... to the 

Case: 10-71457 05/05/2011 Page: 51 of 64 ID: 7741631 DktEntry: 31
42 

extent they have actually occurred . . . from the implementation of measures 

required under the applicable implementation plan, rules promulgated by the 

Administrator, or a permit under subchapter V of this chapter.” 42 U.S.C. § 

7511a(b)(1)(C) (emphasis added). Petitioners’ assertion that SIPs can credit only 

those emissions reduction that result from measures approved into the SIP is 

incorrect. For purposes of demonstrating that an area is making reasonable further 

progress toward attainment, and, by extension, for attainment demonstration 

purposes, credit is expressly allowed for rules promulgated by the Administrator. 

In the case of California’s “waiver” rules, the State’s rules substitute for the rules 

promulgated by the Administrator, and thus are creditable. 

Likewise, the Act does not limit contingency measures to measures 

approved into the SIP. Contingency measures are: 

[S]pecific measures to be undertaken if the area fails to make 

reasonable further progress, or to attain the [NAAQS] by the 

attainment date applicable under this part. Such measures shall be 

included in the plan revision as contingency measures to take effect in 

any such case without further action by the State or the Administrator. 

 

CAA § 172(c)(9), 42 U.S.C. § 7502(c)(9). In other words, the statute requires 

contingency measures to be extra reductions that are not relied on for rate of 

progress demonstration or attainment demonstration, to provide a cushion while 

the plan is revised to meet a missed milestone. Nothing in the CAA precludes a 

State from relying on Federal measures, which are not approved into the SIP, in its 

Case: 10-71457 05/05/2011 Page: 52 of 64 ID: 7741631 DktEntry: 31
43 

contingency measures. The CAA only requires that the SIP identify (and thereby 

“include”) all of the measures that are intended to serve as contingency measures, 

including Federal measures. However, where a State relies on State or local 

measures for contingency purposes, instead of relying on Federal measures, such 

State and local measures must not only be identified, but also must be approved 

into the SIP. Id. EPA has approved numerous SIPs consistent with this 

interpretation of the CAA. See, e.g., 62 Fed. Reg. 15,844 (Apr. 3, 1997); 62 Fed. 

Reg. 66,279 (Dec. 18, 1997); and 66 Fed. Reg. 30,811 (June 8, 2001). 

In the case of California’s mobile source standards, a waiver under CAA 

section 209 substitutes the California requirement for a corresponding Federal 

measure, and thus confers creditability to the California measure, even though it is 

not approved into the SIP. See, e.g., CAA § 209(b)(3), 42 U.S.C. § 7543(b)(3) (“In 

the case of any new motor vehicle or new motor vehicle engine to which State 

standards apply pursuant to a waiver . . . , compliance with such State standards 

shall be treated as compliance with applicable Federal standards for purposes of 

this chapter.”). Thus, reliance upon emission reductions from waiver measures is 

acceptable for contingency measure purposes in the same way that reliance on the 

Federal measures is acceptable. 

C. EPA Explained the Analogous Requirements in the California 

Waiver Process and the SIP Process. 

Case: 10-71457 05/05/2011 Page: 53 of 64 ID: 7741631 DktEntry: 31
44 

 EPA reasonably determined that requiring California regulations that had 

already been through the waiver approval process to undergo the SIP approval 

process would be burdensome and duplicative. In the preamble to the final rule, 

EPA described the ways in which the waiver review and approval process is 

analogous to the SIP review and approval process. 75 Fed. Reg. at 10,425. Both 

provide an opportunity for public notice and comment at the state rulemaking 

level. Id. Both also require public notice and opportunity for comment during the 

EPA review process. Id. Moreover, both preclude relaxation of the regulations 

beyond a certain point: waiver measures cannot be relaxed beyond the statutory 

requirement to be, in the aggregate, at least as protective of public health and 

welfare as applicable Federal standards, and SIP measures cannot be relaxed 

beyond the antibacksliding provisions in CAA sections 110(l) and 193, 42 U.S.C. 

§§ 7410(l), 7515. Id.; see also TSD at 97-98. 

 For these reasons, EPA’s conclusion that it would not be necessary to require 

California mobile source regulations that had already received waiver approval to 

undergo SIP approval was reasonable and should be upheld. 

III. EPA Reasonably Approved the Attainment Demonstration in the 2004 

Plan in March 2010. 

A. EPA’s Approval of the Attainment Demonstration in the 2004 Plan Was 

Consistent with the Requirements of the CAA. 

Case: 10-71457 05/05/2011 Page: 54 of 64 ID: 7741631 DktEntry: 31
45 

Petitioners argue that EPA’s approval of the attainment demonstration in the 

2004 Plan was illegal because monitoring data for the summers of 2008 and 2009 

indicated “there was no mathematical or legal possibility that the Valley would 

attain” by the November 15, 2010 deadline. Pet. Br. at 45-51. Petitioners appear 

to assume that a demonstration of attainment by November 15, 2010, requires a 

demonstration that the area will have air quality measurements at or below the 

level of the standard three years prior to that date. Petitioners’ arguments 

misconstrue the requirements governing EPA’s action on an attainment 

demonstrations under CAA section 182(c)(2), 42 U.S.C. § 7511a(c)(2). 

A determination of attainment of the one-hour ozone standard is based on 

the number of exceedances (i.e., monitoring data showing pollutant concentrations 

at or above the level of the standard) recorded at each monitoring site in the area 

during the three-year period preceding the attainment date.14 An attainment 

demonstration, on the other hand, is a predictive tool for assessing what air quality 

well be at a future time. An attainment demonstration is based on air quality 

modeling showing that projected concentrations of the relevant pollutant in the 

 

14 An area attains the one-hour ozone standard when the expected number of days 

per calendar year with the maximum hourly concentrations above 0.12 parts per 

million at each monitor in the area, averaged over the most recent three-year 

period, is equal to or less than 1. 40 C.F.R. § 50.9(a) & App. H. 

Case: 10-71457 05/05/2011 Page: 55 of 64 ID: 7741631 DktEntry: 31
46 

attainment year15 will be at or below the level of the relevant ambient air quality 

standard. See 75 Fed. Reg. at 10,431 (citing CAA § 182(c)(2), 42 U.S.C. § 

7511a(c)(2)); see also General Preamble at 13,502-10. EPA has long taken the 

position that for an ozone nonattainment area subject to the requirements of 

subpart 2 of title I, part D of the CAA, the provisions applicable here, a State may 

demonstrate that in the attainment year, the area will have air quality such that the 

area could be eligible for the first of two one-year extensions allowed under CAA 

section 181(a)(5), 42 U.S.C. § 7511(a)(5). Under CAA section 181(a)(5), an area 

that does not have three years of monitored data demonstrating attainment of the 

ozone NAAQS but has complied with all requirements and commitments 

pertaining to the area in the applicable SIP, and that has no more than one 

exceedance of the NAAQS in the attainment year, may receive a one-year 

extension of its attainment date. If the same conditions are met in the following 

year, the area may receive an additional one-year extension. 42 U.S.C. § 

7511(a)(5). If the area has no more than one exceedance in this final extension 

year, then it will have three years of data indicating that it has attained the ozone 

NAAQS. 

EPA’s interpretation of the Act is consistent with the structure of subpart 2 

of title I, part D of the CAA, which requires many of the measures needed to attain 

 

15 For ozone, the attainment year is defined as the calendar year that includes the 

last full ozone season prior to the statutory attainment date. 40 C.F.R. § 51.900(g). 

Case: 10-71457 05/05/2011 Page: 56 of 64 ID: 7741631 DktEntry: 31
47 

the ozone NAAQS to be implemented by the attainment date. See, e.g., 42 U.S.C. 

§ 7511a(b)(1) (requiring moderate nonattainment areas to provide for VOC 

emissions reductions of 15 percent by November 15, 1996, the attainment date for 

these areas); 42 U.S.C. § 7511a(c)(2)(B) (requiring rate of progress reductions of 

three percent per year averaged over three years from November 15, 1996 “until 

the attainment date”); see also 42 U.S.C. § 7511(b)(2) (requiring the Administrator 

to determine whether an ozone nonattainment area has attained the ozone standard 

within 6 months following “the applicable attainment date (including any 

extension thereof).” Since the 1990 Clean Air Act Amendments were enacted, all 

of the attainment demonstrations that EPA has approved for the one-hour ozone 

standard have followed this approach. See, e.g., 61 Fed. Reg. 10,920 (Mar. 18, 

1996) and 62 Fed. Reg. 1150 (Jan. 8, 1997) (proposed and final approval of 

California’s attainment plans for six nonattainment areas); 66 Fed. Reg. 54,143 

(Oct. 25, 2001) (approval of Pennsylvania’s 1-hour ozone attainment plan for 

Philadelphia area); 67 Fed. Reg. 30,574 (May 7, 2002) (approval of Georgia’s 1-

hour ozone attainment plan for Atlanta); 67 Fed. Reg. 5170 (Feb. 4, 2002) 

(approval of New York’s 1-hour ozone attainment plan); Environmental Defense v. 

EPA, 369 F.3d 193 (2nd Cir. 2004) (denying petition for review of EPA’s 

approval of New York’s 1-hour ozone attainment plan based on, inter alia, EPA’s 

reasonable interpretation of the extension provision in CAA section 181(a)(5)). 

Case: 10-71457 05/05/2011 Page: 57 of 64 ID: 7741631 DktEntry: 31
48 

 Petitioners argue that EPA’s approval of the attainment demonstration was 

illegal because the exceedances of the 1-hour ozone standard recorded in 2008 and 

2009 rendered attainment impossible by the applicable attainment date of 

November 15, 2010. This argument conflates the requirements governing 

attainment demonstrations under CAA section 182(c)(2) with the requirements 

governing attainment determinations under CAA section 181(b)(2). Although a 

determination of attainment by November 15, 2010 under CAA section 181(b)(2) 

would require the area to have no more than three exceedances of the one-hour 

ozone standard at any one monitor during the three-year period preceding that date, 

CAA section 182(c)(2) does not require the same for approval of an attainment 

demonstration. In approving the 2004 Plan, EPA did not make an attainment 

determination under CAA section 181(b)(2).16 EPA signed the final rule approving 

the 2004 Plan on December 11, 2009, based in part on a determination that the 

State had adequately demonstrated that the San Joaquin Valley would have ozone 

concentrations at or below the one-hour ozone standard in the 2010 ozone season.17 

75 Fed. Reg. at 10,431; TSD at 113-17 (noting that air quality trends show a 

 

16CAA section 181(b)(2) requires the Administrator to determine whether an 

ozone nonattainment area has attained the ozone standard “[w]ithin 6 months 

following the applicable attainment date (including any extension thereof) . . . .” 

42 U.S.C. § 7511(b)(2) (emphasis added).

17 Because the San Joaquin Valley has a May to October ozone season for the onehour ozone standard, the attainment year ozone season began in May 2010. See

2004 Plan at 3-1; 40 C.F.R. § 51.50. 

Case: 10-71457 05/05/2011 Page: 58 of 64 ID: 7741631 DktEntry: 31
49 

decreasing number of days with air quality exceeding the standard). More 

specifically, EPA determined that the 2004 Plan demonstrated that the San Joaquin 

Valley would have clean air during the attainment year and would ultimately attain 

the one-hour ozone standard by the applicable attainment date in light of the 

extension provision in CAA section 181(a)(5), 42 U.S.C. § 7511(a)(5).18 As such, 

EPA’s approval of the attainment demonstration in the 2004 Plan was consistent 

with the requirements of CAA section 182(c)(2), 42 U.S.C. § 7511a(c)(2), and the 

overall structure of subpart 2 of title I, part D of the CAA. 

B. Review of this Issue Is Limited to the Administrative Record that 

 Was Before EPA at the Time of the Determination. 

 Petitioners cite extra-record air quality monitoring data to support their 

assertion that EPA’s approval of the 2004 Plan was unsupported because the San 

Joaquin Valley did not attain the one-hour ozone standard by November 15, 2010. 

See Pet. Br. at 51. Petitioners cannot rely upon data that came into existence after 

EPA made its determination and, thus, was not in the administrative record before 

 

18 Petitioners argue that EPA’s approval of the 2004 Plan is inconsistent with its 

September 9, 2010, proposed rule to disapprove Arizona’s attainment 

demonstration for the NAAQS for particulate matter less than or equal to 10 

micrometers in diameter (“PM-10”) for Maricopa County. Pet. Br. at 48-49. 

However, that action was subject to different CAA requirements. CAA section 

181(a)(5), 42 U.S.C. § 7511a(a)(5), provides an option to extend the “applicable 

attainment date” for ozone nonattainment areas based on clean air in the attainment 

year, while the CAA’s requirements for serious PM-10 nonattainment areas, such 

as Maricopa County, do not provide such an option. See CAA §§ 188-190, 42 

U.S.C. §§ 7513-7513b. 

Case: 10-71457 05/05/2011 Page: 59 of 64 ID: 7741631 DktEntry: 31
50 

EPA. Under the narrow APA standard of review, “the focal point for judicial 

review should be the administrative record already in existence, not some new 

record made initially in the reviewing court.” Camp v. Pitts, 411 U.S. at 142; see 

also Fla. Power & Light Co. v. Lorion, 470 U.S. at 743-44. Had Petitioners moved 

to supplement the administrative record, the appropriateness of citing to data that 

postdates EPA’s approval of the 2004 Plan could have been debated in that 

context. However, Petitioners did not follow required procedures and, instead, 

simply included references to these data in their brief. Pet. Br. at 51. Petitioners 

cannot rely on this information. 

 There are narrow exceptions to the doctrine that review of an agency action 

under the APA is limited to the administrative record. “[D]e novo review is 

appropriate only where there are inadequate factfinding procedures in an 

adjudicatory proceeding, or where judicial proceedings are brought to enforce 

certain administrative actions.” Camp v. Pitt, 411 U.S. at 142; see also 

Commercial Drapery Contractors, Inc. v. United States, 133 F.3d 1, 7 (D.C. Cir. 

1998) (APA limits review to the administrative record “except when there has been 

a ‘strong showing of bad faith or improper behavior’ or when the record is so bare 

that it prevents effective judicial review.”) (quoting Citizens to Preserve Overton 

Park, Inc. v. Volpe, 401 U.S. 402, 420 (1971)). Petitioners do not demonstrate 

how this matter fits within these narrow exceptions. 

Case: 10-71457 05/05/2011 Page: 60 of 64 ID: 7741631 DktEntry: 31
51 

 The task of this Court is to determine, based upon the record evidence that 

was before EPA at the time EPA determined to approve the 2004 Plan, whether 

EPA’s determination was arbitrary, capricious, or not in accordance with the law. 

The information that Petitioners cite in their brief did not exist at the time that EPA 

made its decision and, thus, cannot be related to this question. See, e.g., Northwest 

Envtl. Advocates v. Nat’l Marine Fisheries Serv., 460 F.3d at 1144-45 

(“[C]onsideration of extra-record evidence to determine the correctness . . . [or] 

wisdom of the agency’s decision is not permitted.”) (citations and quotation marks 

omitted). 

 EPA’s determination was based on the information in the administrative 

record. EPA reasonably approved the 2004 Plan based upon this information, and 

EPA explained at length its rationale. See, e.g., TSD at 7-17. Accordingly, EPA’s 

approval of the attainment demonstration must be upheld. 

CONCLUSION

For the foregoing reasons, the Court should deny the Petitions for Review 

and should uphold EPA’s approval of the revisions to the San Joaquin Valley area 

SIP for the one-hour ozone standard. 

Case: 10-71457 05/05/2011 Page: 61 of 64 ID: 7741631 DktEntry: 31
52 

 Respectfully Submitted, 

 IGNACIA S. MORENO 

 Assistant Attorney General 

 JOHN C. CRUDEN 

 Deputy Assistant Attorney General 

 /s/Monica Derbes Gibson

 MONICA DERBES GIBSON 

 Environmental Defense Section 

 Environment & Natural Resources Division 

 U.S. Department of Justice 

 P.O. Box 23986 

 Washington, DC 20026-3986 

 202-514-0135 

 Counsel for Respondents 

OF COUNSEL: 

JEFFERSON WEHLING 

JEANHEE HONG 

U.S. EPA, Region IX 

Office of Regional Counsel 

75 Hawthorne Street 

San Francisco, CA 94105 

415-972-3901 

JAN M. TIERNEY 

U.S. EPA 

Office of General Counsel 

1200 Pennsylvania Ave., N.W. 

Mail Code 2344A 

Washington, DC 20460 

202-564-5598 

Case: 10-71457 05/05/2011 Page: 62 of 64 ID: 7741631 DktEntry: 31
53 

CERTIFICATE OF COMPLIANCE WITH WORD LIMIT

 I certify that, pursuant to Rule 32(a)(7)(C) of the Federal Rules of Appellate 

Procedure and Ninth Circuit Rule 32-1, the attached brief is proportionately 

spaced, has a typeface of 14 points, and contains 12,575 words, exclusive of those 

parts of the brief exempted by Rule 32(a)(7)(B)(iii). I have relied on Microsoft 

Word’s calculation feature. 

Date: May 5, 2011 /s/Monica Derbes Gibson

STATEMENT OF RELATED CASES

The Respondents are not aware of any related cases pending in this Court.

Case: 10-71457 05/05/2011 Page: 63 of 64 ID: 7741631 DktEntry: 31
54 

CERTIFICATE OF SERVICE

 On May 5, 2011, I electronically filed the foregoing Respondents’ Brief with 

the Clerk of the Court for the United States Court of Appeals for the Ninth Circuit 

by using the CM/ECF system. 

 I certify that counsel for all parties in this case are registered with the Ninth 

Circuit CM/ECF system and that service will be accomplished by the CM/ECF 

system. 

Date: May 5, 2011 /s/Monica Derbes Gibson

Case: 10-71457 05/05/2011 Page: 64 of 64 ID: 7741631 DktEntry: 31