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Terms: 558 F.3d 936

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LATINO ISSUES FORUM; SIERRA CLUB; and MEDICAL ADVOCATES FOR

HEALTHY AIR, Petitioners, v. UNITED STATES ENVIRONMENTAL

PROTECTION AGENCY, Respondent, and SAN JOAQUIN VALLEY UNIFIED

AIR POLLUTION CONTROL DISTRICT; ALLIANCE OF WESTERN MILK

PRODUCERS; and AIR COALITION TEAM, Respondent-Intervenors.

No. 06-71907

UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

558 F.3d 936; 2009 U.S. App. LEXIS 4819

October 21, 2008, Argued and Submitted, San Francisco, California

March 5, 2009, Filed

SUBSEQUENT HISTORY: As Corrected March 13, 2009.

PRIOR HISTORY: [**1]

On Petition for Review of an Order of the Environmental Protection Agency. EPA No. EPA-1: Clean Air Act.

Latino Issues Forum v. United States EPA, 315 Fed. Appx. 651, 2009 U.S. App. LEXIS 4213 (9th Cir., Mar.

2, 2009)

DISPOSITION: PETITION DENIED.

CASE SUMMARY:

PROCEDURAL POSTURE: Petitioners, a minority forum and an environmental group, sought judicial review

of an order of respondent Environmental Protection Agency (EPA), that approved a revision to the state

implementation plan (SIP) for San Joaquin Valley, California. Intervenors, an air district, milk producer

association and an air coalition team, intervened in support of the EPA.

OVERVIEW: The valley was designated as a serious nonattainment are for PM-10. The district submitted a

revised SIP which was partially approved. The district adopted a revision know as Rule 4550 and its

associated Conservation Management Practices (CMP) list. Rule 4550 applied to PM-10 emissions from

agricultural operations with 100 or more contiguous acres and from concentrated animal feeding operations

that met or exceeded certain minimum size requirements. Petitioners asserted that the EPA's approval of

Rule 4550 was arbitrary, capricious, or not in accordance with law. The appellate court found that 42

U.S.C.S. § 7509(d)(2) was ambiguous and the EPA's interpretation was reasonable, the EPA acted lawfully

by not requiring implementation of "all feasible measures" into Rule 4550. After having evaluated the

submitted rule and the CMP list, the EPA concluded that Rule 4550 and the CMP list met the best available

control measures (BACM) requirements of 42 U.S.C.S. § 7513a(b)(1)(B). The EPA followed its regulatory

process and committed no clear error of judgment in ruling that Rule 4550 complied with the BACM.

OUTCOME: The petition was denied.

CORE TERMS: control measures, agricultural, emission, nonattainment, revision, attainment, deadline,

reduction, air, moderate, pollution, feasible, environmental, technological, feasibility, dust, Clean Air Act,

flexibility, inventory, grower, evaluated, region, staff, statutory requirements, particulate, designated,

capricious, precursor, prescribe, approve

Page 1
LexisNexis(R) Headnotes

Environmental Law > Air Quality > General Overview

Environmental Law > Air Quality > National Ambient Air Quality Standards

[HN1] The Clean Air Act (CAA), 42 U.S.C.S. § 7401 et seq., establishes a comprehensive program for

controlling and improving the United States' air quality through state and federal regulation. The CAA

requires the Environmental Protection Agency (EPA) to establish national ambient air quality standards

(NAAQS) for air pollutants that the EPA determines may reasonably be expected to endanger public health

or welfare. 42 U.S.C.S. §§ 7408, 7409.

Environmental Law > Air Quality > National Ambient Air Quality Standards

[HN2] The states are responsible for ensuring that their air quality meets the national ambient air quality

standards (NAAQS). 42 U.S.C.S. § 7407(a). The states are divided into "air quality control regions," and

each region is designated as being either in attainment or nonattainment, or as unclassifiable with respect to

each of the NAAQS. § 7407(d). The attainment deadlines and control measures applicable within each

region vary, depending on the pollutant and the severity of the region's pollution problem. 42 U.S.C.S. §§

7502, 7509, 7511-7514a.

Environmental Law > Air Quality > National Ambient Air Quality Standards

Environmental Law > Air Quality > State Implementation Plans

[HN3] Under the Clean Air Act (CAA), 42 U.S.C.S. § 7401 et seq., a state must develop a state

implementation plan (SIP) that provides for the attainment, maintenance, and enforcement of the NAAQS in

each region within the state. 42 U.S.C.S. § 7410(a). Section 7410 sets forth the general requirements for all

SIPs, which include enforceable emission limitations and other control measures to meet the requirements of

the Act; enforcement programs; and assurances that the state has adequate personnel, funding, and

authority to carry out the SIP. Every SIP or SIP revision must be adopted by the state after reasonable notice

and hearing, and each must be submitted to the Environmental Protection Agency (EPA) for approval. §

7410(a)(1). The EPA may fully approve, partially approve and partially disapprove, conditionally approve, or

fully disapprove a SIP. § 7410(k)(3)and (4). The provisions of the SIP that the EPA approves are federally

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

Environmental Law > Air Quality > National Ambient Air Quality Standards

[HN4] With regard to the Clean Air Act (CAA), 42 U.S.C.S. § 7401 et seq., the Environmental Protection

Agency (EPA) has established national ambient air quality standards (NAAQS) for "particulate matter," that

is, the particles found in the air, such as dust, dirt, soot, smoke, and liquid droplets. Particles with a diameter

less than or equal to 10 micrometers are known as PM-10. 40 C.F.R. § 50.6(c).

Environmental Law > Air Quality > Nonattainment Areas

[HN5] With regard to the Clean Air Act (CAA), 42 U.S.C.S. § 7401 et seq., the statutory requirements differ

between moderate and serious PM-10 nonattainment areas. Whereas moderate PM-10 nonattainment plans

must include "reasonably available control measures" (RACM), 42 U.S.C.S. § 7513a(a)(1)(C), serious PM-10

nonattainment plans must provide for the implementation of "best available control measures" (BACM), §

7513a(b)(1)(B). Additionally, plans for an area designated as serious that does not reach attainment by the

applicable deadline must provide for attainment of the PM-10 standards and for an annual reduction of

PM-10 or PM-10 precursor emissions by the date of an extended deadline. § 7513a(d). That annual

reduction cannot be less than five percent of the amount of such emissions, as reported in the most recent

inventory prepared for the area.

Administrative Law > Judicial Review > Standards of Review > Abuse of Discretion

Administrative Law > Judicial Review > Standards of Review > Arbitrary & Capricious Review

Environmental Law > Litigation & Administrative Proceedings > Judicial Review

[HN6] Under the Administrative Procedure Act (APA), 5 U.S.C.S. § 701 et seq., courts consider whether the

Environmental Protection Agency's (EPA's) action was arbitrary, capricious, an abuse of discretion, or

otherwise not in accordance with law. 5 U.S.C.S. § 706(2)(A). This standard requires the EPA to articulate a

rational connection between the facts found and the choice made.

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558 F.3d 936, *; 2009 U.S. App. LEXIS 4819, **1
Administrative Law > Judicial Review > Standards of Review > General Overview

[HN7] Courts must carefully review the record to ensure that agency decisions are founded on a reasoned

evaluation of the relevant factors, and may not rubber-stamp administrative decisions that they deem

inconsistent with a statutory mandate or that frustrate the congressional policy underlying a statute.

Nevertheless, a court may not substitute its judgment for that of the agency.

Administrative Law > Judicial Review > Standards of Review > General Overview

[HN8] Where a court reviews an agency action involving primarily issues of fact, and where analysis of the

relevant documents requires a high level of technical expertise, courts must defer to the informed discretion

of the responsible federal agencies. Even when an agency explains its decision with less than ideal clarity,

courts will not upset the decision on that account if the agency's path may reasonably be discerned.

Administrative Law > Judicial Review > Standards of Review > Arbitrary & Capricious Review

[HN9] In reviewing a decision made by an administrative agency, a court's proper role is simply to ensure

that the agency made no "clear error of judgment" that would render its action "arbitrary and capricious."

Courts are to be "most deferential" when the agency makes predictions, within its area of special expertise,

at the frontiers of science. Courts are not free to impose upon the agency their own notion of which

procedures are "best" or most likely to further some vague, undefined public good.

Administrative Law > Judicial Review > Standards of Review > Statutory Interpretation

[HN10] On questions of statutory interpretation, courts follow the two-step approach set out in Chevron

U.S.A. Inc. v. Natural Resources Defense Council, Inc. First, courts employ "traditional tools of statutory

construction" to determine whether Congress has expressed its intent unambiguously on the question before

the court. If the intent of Congress is clear, that is the end of the matter; for the court, as well as the agency,

must give effect to the unambiguously expressed intent of Congress. If, instead, Congress has left a gap for

the administrative agency to fill, courts proceed to step two. At step two, a court must uphold the

administrative regulation unless it is arbitrary, capricious, or manifestly contrary to the statute.

Environmental Law > Air Quality > Enforcement > Government Civil Actions

Environmental Law > Air Quality > Nonattainment Areas

[HN11] 42 U.S.C.S. § 7509 of the Clean Air Act (CAA), 42 U.S.C.S. § 7401 et seq., concerns the

consequences of a state's failure to attain reduced emissions. The statute is constructed in such a way that,

every time a state fails to meet a deadline for its implementation plan or plan revision, the statutory

requirements become more stringent. For example, if the Environmental Protection Agency (EPA) initially

classifies an area as a moderate nonattainment area, only the reasonably available control measures

(RACM) standard applies. 42 U.S.C.S. § 7513a. If an area then fails to meet its deadline, the EPA

reclassifies that area as a serious nonattainment area, and the more rigorous best available control

measures (BACM) standard applies. If the same area again fails to meet its deadline, then its plan must

provide for attainment by achieving an annual reduction that is not less than five percent of the amount of

emissions as reported in the most recent inventory prepared for the area.

Environmental Law > Air Quality > Nonattainment Areas

Environmental Law > Air Quality > State Implementation Plans

[HN12] With regard to the Clean Air Act (CAA), 42 U.S.C.S. § 7401 et seq., within one year of the

Environmental Protection Agency (EPA) Administrator's publication of a notice of failure to attain, the state

must submit a revision to the applicable state implementation plan (SIP). The revision shall include such

additional measures as the Administrator may reasonably prescribe, including all measures that can be

feasibly implemented in the area in light of technological achievability, costs, and any nonair quality and

other air quality-related health and environmental impacts. 42 U.S.C.S. § 7509(d)(2).

Environmental Law > Air Quality > Nonattainment Areas

[HN13] With regard to the Clean Air Act (CAA), 42 U.S.C.S. § 7401 et seq., nothing in 42 U.S.C.S. §

7509(d)(2) limits its application to review of a plan in its entirety. To the contrary, the statute plainly provides

that § 7509 applies to any implementation plan or plan revision required under this part or required in

response to a finding of substantial inadequacy. 42 U.S.C.S. § 7509(a)

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558 F.3d 936, *; 2009 U.S. App. LEXIS 4819, **1
Administrative Law > Judicial Review > Reviewability > Exhaustion of Remedies

[HN14] An appellate court will refuse to consider contentions not presented before the administrative

proceeding at the appropriate time, but waivers of arguments are not designed to extinguish claims which,

although not comprehensively or artfully presented in the early stages of the administrative process, are

presented fully before the process ends.

Environmental Law > Air Quality > Nonattainment Areas

[HN15] With regard to the Clean Air Act (CAA), 42 U.S.C.S. § 7401 et seq., 42 U.S.C.S. § 7513a(b)(1)(B)

states that, for areas designated as "serious," provisions to assure that the best available control measures

for the control of PM-10 shall be implemented no later than four years after the date the area is classified (or

reclassified) as a serious area. The Environmental Protection Agency (EPA) set forth its definition of best

available control measures (BACM) in its Addendum to the General Preamble of the Act. The BACM is the

maximum degree of emissions reduction of PM-10 and PM-10 precursors from a source which is determined

on a case-by-case basis, taking into account energy, environmental, and economic impacts and other costs,

to be achievable for such source through application of production processes and available methods,

systems, and techniques for control of each such pollutant.

Environmental Law > Air Quality > Nonattainment Areas

[HN16] With regard to the Clean Air Act, 42 U.S.C.S. § 7401 et seq., the Environmental Protection Agency

(EPA) has created a four-step process to determine best available control measures (BACM) for a particular

area: (1) developing an inventory of the sources of PM-10 and PM-10 precursor emissions; (2) evaluating,

via modeling, the effect of PM-10 concentrations of various sources to determine which are significant; (3)

evaluating the technological and economic feasibility of the potential control measures; and (4) evaluating

the costs and energy and environmental impacts of potential BACM. Those four steps emphasize the need

for flexibility and variability within particular plans. The EPA further explains that nonattainment problems

range from reasonably well-defined areas of violation caused by a specific source or group of sources to

violations over relatively broad geographical areas due predominantly to large numbers of small sources

widely-distributed over the area. With regard to the third step, evaluating alternative control techniques, the

EPA recognizes that the technological feasibility of reducing emissions from area sources depends on the

ability to alter the characteristics that affect emissions from the sources. The characteristics to which the EPA

refers have to do with the size or extent of the sources, their physical characteristics, and the operating

procedures.

Administrative Law > Judicial Review > Standards of Review > Arbitrary & Capricious Review

[HN17] An appellate court's role is only to ensure that the Environmental Protection Agency (EPA) made no

"clear error of judgment" that would render its action "arbitrary and capricious." 5 U.S.C.S. § 706(2)(A).

COUNSEL: Paul Cort, Earthjustice, Oakland, California, for the petitioners.

Thomas A. Lorenzen and Christina B. Parascandola, United States Department of Justice, Environment &

Natural Resources Division, Washington, D.C., for the respondent.

Philip M. Jay, District Counsel, San Joaquin Valley Unified Air Pollution Control District, Fresno, California;

David E. Cranston, Greenberg Glusker Fields Claman & Machtinger LLP, Los Angeles, California; and Rissa

A. Stuart, Kahn, Soares & Conway, LLP, Hanford, California, for the respondent-intervenors.

JUDGES: Before: J. Clifford Wallace, Sidney R. Thomas and Susan P. Graber, Circuit Judges. Opinion by

Judge Graber; Concurrence by Judge Thomas.

OPINION BY: Susan P. Graber

OPINION

[*938] GRABER, Circuit Judge:

Petitioners Latino Issues Forum and Sierra Club challenge the Environmental Protection Agency's ("EPA")

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558 F.3d 936, *; 2009 U.S. App. LEXIS 4819, **1
approval of a revision to the state implementation plan ("SIP") for San Joaquin Valley, California. The

revision, known as Rule 4550, is part of the Conservation Management Practices ("CMP") Program, an

air-pollutant reduction program, established by the San Joaquin [**2] Valley Unified Air Pollution Control

District ("District"). Rule 4550 aims to reduce emissions from agricultural sources of a certain kind of

particulate matter known as PM-10. We hold that Rule 4550 comports with the requirements of 42 U.S.C. §§

7509 and 7513a(b)(1)(B) and, therefore, deny the petition.

STATUTORY AND REGULATORY BACKGROUND

[HN1] The Clean Air Act, 42 U.S.C. §§ 7401-7671 ("Act"), establishes a comprehensive program for

controlling and improving the United States' air quality through state and federal regulation. The Act requires

the EPA to establish national ambient air quality standards ("NAAQS") for air pollutants that the EPA

determines may reasonably be expected to endanger public health or welfare. 42 U.S.C. §§ 7408, 7409.

[HN2] The states are responsible for ensuring that their air quality meets the NAAQS. Id. § 7407(a). The

states are divided into "air quality control regions," and each region is designated as being either in

attainment or nonattainment, or as unclassifiable with respect to each of the NAAQS. Id. § 7407(d). The

attainment deadlines and control measures applicable within each region vary, depending on the pollutant

and the severity of the region's pollution [**3] problem. See id. §§ 7502, 7509, 7511-7514a.

[HN3] Under the Act, a state must develop a SIP that provides for the attainment, maintenance, and

enforcement of the NAAQS in each region within the state. Id. § 7410(a). Section 7410 sets forth the general

requirements for all SIPs, which include enforceable emission limitations and other control measures to meet

the requirements of the Act; enforcement programs; and assurances that the state has adequate personnel,

funding, and authority to carry out the SIP. Every SIP or SIP revision must be adopted by the state after

reasonable notice and hearing, and each must be submitted to the EPA for approval. Id. § 7410(a)(1). The

EPA may fully approve, partially approve and partially disapprove, conditionally approve, or fully disapprove

a SIP. Id. § 7410(k)(3)&(4). The provisions of the SIP that the EPA approves are federally enforceable. See

id. § 7607(b)(1).

[HN4] The EPA has established NAAQS for "particulate matter," that is, the particles found in the air, such

as dust, dirt, soot, [*939] smoke, and liquid droplets. Particles with a diameter less than or equal to ten

micrometers are known as PM-10. 40 C.F.R. § 50.6(c).

On November 15, 1990, the date of enactment [**4] of the Clean Air Act Amendments of 1990, Congress

designated ten PM-10 nonattainment areas, including the San Joaquin Valley, across the country. 42 U.S.C.

§ 7407(d)(4)(B). All the PM-10 nonattainment areas were classified initially as "moderate" PM-10

nonattainment areas with an attainment deadline of December 31, 1994. Id. § 7513(a)&(c)(1); 56 Fed. Reg.

11,101 (Mar. 15, 1991). The EPA was authorized to reclassify a moderate nonattainment area as "serious"

before the attainment deadline if the EPA found that the area could not "practicably" attain the PM-10

NAAQS by the deadline. 42 U.S.C. § 7513(b)(1).

[HN5] The statutory requirements differ between moderate and serious PM-10 nonattainment areas. Id. at

7513a. Whereas moderate PM-10 nonattainment plans must include "reasonably available control

measures" ("RACM"), id. § 7513a(a)(1)(C) (emphasis added), serious PM-10 nonattainment plans must

provide for the implementation of "best available control measures" ("BACM"), id. § 7513a(b)(1)(B)

(emphasis added). Additionally, plans for an area designated as serious that does not reach attainment by

the applicable deadline must provide for attainment of the PM-10 standards and for an annual reduction

[**5] of PM-10 or PM-10 precursor emissions by the date of an extended deadline. Id. § 7513a(d). That

annual reduction cannot be less than five percent of the amount of such emissions, as reported in the most

recent inventory prepared for the area. Id.

The Act does not define RACM or BACM. In 1992, the EPA published a "General Preamble," which is "an

advance notice of how EPA generally intends . . . to take action on SIP submissions." 57 Fed. Reg.

13,498-01, 13,498 (Apr. 16, 1992). In that document, the EPA set forth the process by which RACM should

be determined for inclusion in a moderate-area SIP. The first step is to list all available control measures. Id.

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at 13,540. Second, the states must provide a reasoned justification for rejection of a particular RACM. Id.

The remaining control measures are then to be "evaluated for reasonableness, considering their

technological feasibility and the cost of control in the area to which the SIP applies." Id. at 13,540-41. The

control measures that are determined to be reasonable are then considered RACM for the moderate PM-10

area.

The EPA set forth the standards for determining BACM in an Addendum to the General Preamble. 59 Fed.

Reg. 41,998 (Aug. 16, 1994). [**6] BACM is considered to be a higher level of control than RACM because,

"when comparing the terms 'reasonable' and 'best' as applied to control measures, the word 'best' strongly

implies that there should be a greater emphasis on the merits of the measure or technology alone and less

flexibility in considering other factors." Id. at 42,011. The procedures prescribed by the EPA for determining

BACM include: (1) develop an inventory of the sources of PM-10 and PM-10 precursor emissions; (2)

evaluate, via modeling, the effect of PM-10 concentrations of various sources to determine which are

significant sources; (3) evaluate the technological and economic feasibility of the potential control measures;

and (4) evaluate the costs and energy and environmental impacts of potential BACM. Id. at 42,012-13.

FACTUAL AND PROCEDURAL BACKGROUND

The San Joaquin Valley, which is located in Central California, comprises approximately [*940] 25,000

square miles and includes the counties of Fresno, Kings, Tulare, San Joaquin, Stanislaus, Madera, and

Merced, plus a portion of Kern County. The San Joaquin Valley is bordered by the Sierra Nevada range on

the east, the Coast Mountain range on the west, and the Tehachapi [**7] Mountains on the south.

The Clean Air Act Amendments of 1990 designated San Joaquin Valley as a moderate nonattainment area

for PM-10. 42 U.S.C. § 7407(d)(4)(B); see 56 Fed. Reg. at 11,103. The Clean Air Act Amendments of 1990

required the District to submit to the EPA the first of its moderate nonattainment plan elements by November

15, 1991. 42 U.S.C. § 7513a(a)(2)(A). The District failed to meet that deadline; consequently, the EPA

determined that the PM-10 pollution problems in the San Joaquin Valley were too severe to resolve by the

December 31, 1994, statutory deadline for moderate areas. See 58 Fed. Reg. 3,334-01, 3,334 (Jan. 8,

1993). Thus, the EPA reclassified the San Joaquin Valley as a serious nonattainment area for PM-10

effective February 8, 1993, thus extending the deadline for attainment to December 31, 2001. Id. at 3,334,

3,337. The District was required to submit a revised SIP no later than February 8, 1997. 42 U.S.C. §

7513a(b)(2).

The District submitted to the EPA two proposed SIPs, the first in 1994 and the second in 1997. See 67 Fed.

Reg. 11,925-01, 11925-26 (Mar. 18, 2002). The EPA intended to disapprove each of those plans but, just as

the EPA was preparing each [**8] proposed disapproval notice, the District informed the EPA that it had

withdrawn both plans from consideration by the EPA. Id. at 11,926. Accordingly, on February 28, 2002, the

EPA issued a finding that the state had failed to submit a SIP for the San Joaquin Valley serious PM-10

nonattainment area. Id.

On August 19, 2003, the District submitted to the EPA a revised SIP to satisfy the requirements of section

189(b)-(d) of the Clean Air Act. 42 U.S.C. § 7513a(b)-(d); 69 Fed. Reg. 5,412-01, 5,413 (Feb. 4, 2004). The

EPA partially approved the District's revised plan, 69 Fed. Reg. 30,006-01 (May 26, 2004), but stated that it

would act at a later date on the elements missing from the District's revised plan, including measures to

control PM-10 emissions from agricultural sources, id. at 30,014-16. Because the last deadline for attainment

had passed, the EPA established 2010 as the earliest date by which the San Joaquin Valley could

practicably attain the PM-10 standards. Id. at 30,015.

On August 19, 2004, the District adopted Rule 4550 and its associated CMP list. 70 Fed. Reg. 16,207-01

(Mar. 30, 2005). Rule 4550 applies to PM-10 emissions from agricultural operations with 100 or more

contiguous [**9] acres and from concentrated animal feeding operations that meet or exceed certain

minimum size requirements. Id. at 16,207-08. The Rule requires those agricultural operations to choose one

control practice from each of five categories for cropland and poultry operations, and one from each of four

categories for beef and dairy operations. Id. at 16,208. Each category presents a menu of as many as 24

different control options from which the source can choose to comply with the rule. Id. In sum, the various

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menus list more than 100 potential control measures. Id.

The District submitted Rule 4550 to the EPA for approval on September 23, 2005. See 70 Fed. Reg.

16,207-01 (Mar. 30, 2005). The EPA proposed approval of the rule on March 30, 2005, and published its

final notice approving the rule on February 14, 2006. See 71 Fed. Reg. 7,683-01, 7,683-88 (Feb. 14, 2006).

Petitioners then challenged the EPA's adoption of Rule 4550 by [*941] filing a timely petition for review in

this court. We have jurisdiction pursuant to 42 U.S.C. § 7607(b)(1).

STANDARD OF REVIEW

Title 42 U.S.C. § 7607(b)(1), which gives us jurisdiction to review the EPA's approval of Rule 4550, does not

specify a standard of review, [**10] so we apply the general standard of review for agency actions set forth

in the Administrative Procedure Act ("APA"), 5 U.S.C. §§ 701-706. Vigil v. Leavitt, 381 F.3d 826, 833 (9th Cir.

2004). [HN6] Under the APA, we consider whether the EPA's action was "arbitrary, capricious, an abuse of

discretion, or otherwise not in accordance with law." 5 U.S.C. § 706(2)(A). This standard requires the EPA to

"articulate[ ] a rational connection between the facts found and the choice made." Ariz. Cattle Growers' Ass'n

v. U.S. Fish & Wildlife, 273 F.3d 1229, 1236 (9th Cir. 2001).

We have held:

[HN7] [C]ourts must carefully review the record to ensure that agency decisions are founded on a reasoned evaluation

of the relevant factors, and may not rubber-stamp . . . administrative decisions that they deem inconsistent with a

statutory mandate or that frustrate the congressional policy underlying a statute . . . . Nevertheless, we may not

substitute [our] judgment for that of the agency . . . .

Friends of Yosemite Valley v. Norton, 348 F.3d 789, 793 (9th Cir. 2003) (alterations in original) (citation and

internal quotation marks omitted). In particular, [HN8] "where, as here, a court reviews an agency action

'involv[ing] [**11] primarily issues of fact,' and where 'analysis of the relevant documents requires a high

level of technical expertise,' we must 'defer to the informed discretion of the responsible federal agencies.'"

Sierra Club v. EPA, 346 F.3d 955, 961 (9th Cir. 2003) (alteration in original) (quoting Marsh v. Or. Natural

Res. Council, 490 U.S. 360, 377, 109 S. Ct. 1851, 104 L. Ed. 2d 377 (1989)). "Even when an agency

explains its decision with 'less than ideal clarity,'" we "will not upset the decision on that account 'if the

agency's path may reasonably be discerned.'" Alaska Dep't of Envtl. Conservation v. EPA, 540 U.S. 461,

497, 124 S. Ct. 983, 157 L. Ed. 2d 967 (2004) (quoting Bowman Transp., Inc. v. Ark.-Best Freight Sys., Inc.,

419 U.S. 281, 286, 95 S. Ct. 438, 42 L. Ed. 2d 447 (1974)).

[HN9] In reviewing a decision made by an administrative agency, our "proper role is simply to ensure that

the [agency] made no 'clear error of judgment' that would render its action 'arbitrary and capricious.'" Lands

Council v. McNair, 537 F.3d 981, 993 (9th Cir. 2008) (en banc) (quoting Marsh, 490 U.S. at 378). We are to

be "most deferential" when the agency makes "predictions, within its [area of] special expertise, at the

frontiers of science." Forest Guardians v. U.S. Forest Serv., 329 F.3d 1089, 1099 (9th Cir. 2003). [**12] We

are "not free to 'impose upon the agency [our] own notion of which procedures are "best" or most likely to

further some vague, undefined public good.'" Churchill County v. Norton, 276 F.3d 1060, 1072 (9th Cir. 2001)

(alteration in original) (quoting Vt. Yankee Nuclear Power Corp. v. Natural Res. Def. Council, Inc., 435 U.S.

519, 549, 98 S. Ct. 1197, 55 L. Ed. 2d 460 (1978)).

[HN10] On questions of statutory interpretation, we follow the two-step approach set out in Chevron U.S.A.

Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 104 S. Ct. 2778, 81 L. Ed. 2d 694 (1984).

First, we employ "traditional tools of statutory construction" to determine whether Congress has expressed its

intent unambiguously on the question before the court. Id. at 843 n.9. "If the intent of [*942] Congress is

clear, that is the end of the matter; for the court, as well as the agency, must give effect to the

unambiguously expressed intent of Congress." Id. at 842-43. If, instead, Congress has left a gap for the

administrative agency to fill, we proceed to step two. Id. at 843. At step two, we must uphold the

administrative regulation unless it is "arbitrary, capricious, or manifestly contrary to the statute." Id. at 844.

DISCUSSION

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Petitioners challenge two aspects of EPA's approval [**13] of Rule 4550 as being arbitrary, capricious, or

not in accordance with law. First, Petitioners claim that Rule 4550 does not incorporate "all feasible

measures," as required by 42 U.S.C. § 7509(d)(2). Second, Petitioners assert that Rule 4550's menu of

options for controlling agricultural PM-10 emissions does not constitute BACM, as required by 42 U.S.C. §

7513a(b)(1)(B). We consider each of those arguments in turn.

A. 42 U.S.C. § 7509(d)(2)

[HN11] Section 7509 of the Act concerns the consequences of a state's failure to attain reduced emissions.

The statute is constructed in such a way that, every time a state fails to meet a deadline for its

implementation plan or plan revision, the statutory requirements become more stringent. For example, if the

EPA initially classifies an area as a moderate nonattainment area, only the RACM standard applies. 42

U.S.C. § 7513a. If an area then fails to meet its deadline, the EPA reclassifies that area as a serious

nonattainment area, and the more rigorous BACM standard applies. Id. If the same area again fails to meet

its deadline, then its plan must provide for attainment by achieving an annual reduction that is not less than

five percent of the amount [**14] of emissions as reported in the most recent inventory prepared for the

area. Id. Additionally, [HN12] within one year of the EPA Administrator's publication of a notice of failure to

attain, the state must submit a revision to the applicable SIP:

[T]he revision shall include such additional measures as the Administrator may reasonably prescribe, including all

measures that can be feasibly implemented in the area in light of technological achievability, costs, and any nonair

quality and other air quality-related health and environmental impacts.

Id. § 7509(d)(2).

Petitioners argue that, under § 7509(d)(2), the District was required to implement all feasible measures to

control PM-10 emissions without delay, because the San Joaquin Valley had failed to meet its attainment

deadlines. Petitioners contend that allowing agricultural operators to choose one control option (among

many) from each of a few categories fails to meet the "all feasible measures" standard.

The EPA responds with three separate arguments. First, the EPA contends that § 7509(d)(2) does not apply

to Rule 4550 because that statute applies only to the San Joaquin Valley Plan as a whole. Second, the EPA

asserts that Petitioners' argument [**15] regarding § 7509(d)(2) is untimely because Petitioners failed to

raise their objection within 60 days of the date of notice of approval of the San Joaquin Valley Plan. Third, if §

7509(d)(2) does apply to Rule 4550 and if Petitioners raised their objection in time, the EPA argues that its

interpretation of § 7509(d)(2) as applied to Rule 4550 must be upheld.

1. Section 7509(d)(2) applies to Rule 4550.

The EPA argues that § 7509(d)(2) applies to the San Joaquin Valley Plan as a whole, but not to Rule 4550

on its own. Specifically, the EPA asserts that it is in the context of a comprehensive attainment [*943] plan

that the EPA prescribes Clean Air Act planning obligations for a nonattainment area.

We disagree. [HN13] Nothing in § 7509(d)(2) limits its application to review of the plan in its entirety. To the

contrary, the statute plainly provides that § 7509 applies to "any implementation plan or plan revision

required under this part . . . or required in response to a finding of substantial inadequacy." 42 U.S.C. §

7509(a) (emphases added). Rule 4550 was a required revision to the District's SIP. See 70 Fed. Reg. at

16,207 ("EPA is proposing to approve revisions to the [District's] portion of the California [**16] [SIP]. These

revisions concern particulate matter emissions from agricultural operations."). Because Rule 4550 was a

required revision to the District's SIP, and because § 7509 applies to any plan revision, § 7509 of the Clean

Air Act applies not only to the San Joaquin Valley Plan as a whole, but also to Rule 4550 separately.

2. Petitioners timely raised their objection to § 7509(d)(2).

Petitioners did not object to the EPA's interpretation of § 7509(d)(2) during the notice-and-comment period

preceding the EPA's adoption of the San Joaquin Valley Plan in 2004. But, as we have explained, §

7509(d)(2) applies separately to Rule 4550, which is a revision of the Plan. Accordingly, Petitioners had to

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raise their objection in the notice-and-comment period preceding the EPA's approval of Rule 4550.

The EPA received a letter from Petitioners, dated April 29, 2005, which asserted that Rule 4550 was

defective because it allowed agricultural operators to select only one control measure per category. 71 Fed.

Reg. at 7683. Petitioners argued that every available and feasible measure to control PM-10 must be

mandated. Id. Although Petitioners did not cite § 7509(d)(2) as authority, the substance of [**17] its present

argument plainly was raised.

[HN14] This court "will refuse to consider contentions not presented before the administrative proceeding at

the appropriate time," but waivers of arguments "are not designed to extinguish claims which, although not

comprehensively or artfully presented in the early stages of the administrative process, are presented fully

before the process ends." Getty Oil Co. v. Andrus, 607 F.2d 253, 256 (9th Cir. 1979). Petitioners did present

their argument fully, even if not comprehensively or artfully on account of failing to cite § 7509(d)(2).

Therefore, we hold that Petitioners' argument regarding the applicability of § 7509(d)(2) was not waived.

3. The EPA's interpretation of § 7509(d)(2) is reasonable.

The parties disagree about the interpretation of § 7509(d)(2). Petitioners argue that the EPA must include "all

feasible measures" in an implementation plan revision, meaning that the plan revision must include all

feasible measures; in their view, the Administrator has discretion only in the sense that he or she may decide

what measures are technically possible under statutory criteria. The structure of the Act, Petitioners continue,

supports that interpretation [**18] because Congress demands more and more stringent control measures

when current requirements are insufficient to bring a particular area into attainment.

The EPA offers an alternative reading of § 7509(d)(2). The EPA argues that the section provides that

submitted revisions must contain additional measures, but that the only additional measures required are

those the Administrator reasonably may choose to prescribe. The measures that the Administrator may

reasonably prescribe, the EPA asserts, include all measures [*944] that can be feasibly implemented in the

area in light of technological achievability, costs, and economic, health, and environmental effects.

At the first step of the Chevron analysis, we conclude that § 7509(d)(2) is ambiguous. The first clause states

that a plan revision "shall include such additional measures as the Administrator may reasonably prescribe."

42 U.S.C. § 7509(d)(2) (emphases added). Both of the parties' interpretations of § 7509(d)(2) are plausible

and reasonable, one emphasizing "shall" and the other emphasizing "may." Because § 7509(d)(2) is

ambiguous and the EPA's statutory interpretation is reasonable, we hold that the EPA acted lawfully by not

requiring [**19] implementation of "all feasible measures" into Rule 4550.

B. 42 U.S.C. § 7513a(b)(1) (B)

Petitioners next argue that Rule 4550's menu of options for controlling PM-10 emissions from agricultural

sources does not constitute the best available control measures. [HN15] Section 7513a(b)(1)(B) states that,

for areas designated as "serious," "[p]rovisions to assure that the best available control measures for the

control of PM-10 shall be implemented no later than 4 years after the date the area is classified (or

reclassified) as a Serious Area." The EPA set forth its definition of BACM in its Addendum to the General

Preamble of the Act:

The BACM is the maximum degree of emissions reduction of PM-10 and PM-10 precursors from a source . . . which is

determined on a case-by-case basis, taking into account energy, environmental, and economic impacts and other

costs, to be achievable for such source through application of production processes and available methods, systems,

and techniques for control of each such pollutant.

59 Fed. Reg. at 42,010 n.32 (emphasis added).

1. History of Rule 4550 and its EPA approval.

In a document titled "Revised Final Draft Staff Report," dated August 19, 2004, the District [**20] submitted

its CMP Program. The report states that more than half of all directly emitted PM-10 emissions originate from

agriculture-related sources and that the purpose of the CMP Program is to limit those emissions.

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Participation in the program is mandatory unless a source falls below the exemption level. The program is

meant to function in the following way: Agricultural operators must select at least one CMP from each of the

identified, applicable CMP categories that is most appropriate to their operations. 1 The selected CMPs then

must be marked on the applications provided by the District to the agricultural operators. The applications

are submitted to the District for approval; when approved by the District, the completed applications

constitute CMP Plans.

1 The CMP categories are "Cropland," "Poultry Operations," "Dairy Operations," and "Feedlot Operations." Each of those

categories is divided into four or five subcategories, and a number of CMPs are listed under each subcategory. For example, to

reduce PM-10 emissions from unpaved roads in poultry operations, one CMP option is to minimize any and all material that

adheres to and agglomerates on all vehicles and equipment from [**21] unpaved roads. Ways of accomplishing that goal

include maintaining a sufficient length of paved or graveled interior roads to allow mud and dirt to drop off vehicles before

exiting the site, or using a "grizzly" to dislodge debris from the tires and undercarriages of vehicles leaving the site.

Rule 4550 is part of the CMP Program, and its purpose "is to limit fugitive dust emissions from agricultural

operation sites." The rule applies only to larger farms and animal feeding operations, but [*945] the District

estimated that 90% of the harvested acres and more than 70% of the animal population in the San Joaquin

Valley would be covered.

In developing Rule 4550, the District's staff met with agricultural representatives known as the AgTech

Committee. The AgTech Committee included representatives from the District, California Air Resources

Board, California Cotton Ginners Association, California Cotton Growers Association, Nisei Farmers League,

Almond Hullers and Processors Association, Natural Resource Conservation Services, EPA, and local farm

bureaus. Additionally, representatives from the California Department of Food and Agriculture, Western

United Dairymen, and university researchers participated. [**22] The District's staff and the AgTech

Committee organized various stakeholder meetings over a two-year period to collect information and discuss

the CMP Program. They held two rounds of public workshops to present the proposed rules and a draft list of

CMPs. Growers, public agencies, and other interested parties provided comments. The District and the

AgTech Committee then held several focus group meetings to discuss compliance costs and financial

effects. The AgTech Committee developed a draft list of CMPs potentially suitable to agricultural sources in

the San Joaquin Valley nonattainment area. The measures represented a wide array of potential CMPs and

were evaluated using available information on technological feasibility, costs, energy, and environmental

effects. The AgTech Committee considered comments from various stake-holders and conducted further

evaluation itself. Eventually, the draft CMP list was "refined to represent feasible, effective and common

sense practices for the nonattainment area[,] which minimize potential negative impacts on local agriculture."

In its "Technical Support Document for EPA's Proposed Rulemaking for the California [SIP]," the EPA

evaluated Rule 4550 [**23] as submitted by the District. The EPA found that the CMP list, which contains

more than 100 practices that are grouped into 18 CMP categories, "is more comprehensive than any similar

lists existing in other serious nonattainment areas." The EPA further noted that, when no feasible CMP can

be used from the list for a certain category, section 6.2 of Rule 4550 allows an agricultural operator to select

a substitute CMP from another category. If an agricultural operator wants to use a CMP not on the CMP list,

it may do so after obtaining approval from the District. In order to be approved, the alternative CMP must

demonstrate that it achieves PM-10 emission reductions that are at least equivalent to the reductions

expected from CMPs on the list.

Rule 4550 requires that each agricultural operator implement at least one CMP for each applicable category

but does not require more than one CMP per category. The EPA reasons that this flexibility gives agricultural

sources a variety of CMPs to select from in order to tailor PM-10 controls to their individual circumstances

without causing an unnecessary economic burden. The EPA contends that a program requiring an individual

source to select one [**24] control method from a list, but allowing the source to select which method, is

most appropriate for its situation. The EPA further emphasizes that giving agricultural sources the discretion

to choose from a range of specified options is important for the agricultural sector because of the variable

nature of farming and the widely varying economic circumstances of farmers throughout the San Joaquin

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Valley.

After having evaluated the submitted rule and the CMP list, the EPA concluded [*946] that Rule 4550 and

the CMP list met the BACM requirements of 42 U.S.C. § 7513a(b)(1)(B). The EPA recommended approval of

Rule 4550, and the District adopted it.

2. The EPA followed its four-step process.

[HN16] The EPA has created a four-step process to determine BACM for a particular area: (1) developing

an inventory of the sources of PM-10 and PM-10 precursor emissions; (2) evaluating, via modeling, the effect

of PM-10 concentrations of various sources to determine which are significant; (3) evaluating the

technological and economic feasibility of the potential control measures; and (4) evaluating the costs and

energy and environmental impacts of potential BACM. 59 Fed. Reg. at 42,012 13. Those four steps

emphasize [**25] the need for flexibility and variability within particular plans. For example, the first step,

establishing an inventory of sources of PM-10 and its precursors, specifies that the BACM "applicable in a

nonattainment area must be determined on a case-by-case basis since the nature and extent of a

nonattainment problem may vary within the area and from one area to another." Id. at 42,012 (emphasis

added). The EPA further explains that "[n]onattainment problems range from reasonably well-defined areas

of violation caused by a specific source or group of sources to violations over relatively broad geographical

areas due predominantly to large numbers of small sources widely-distributed over the area." Id. With regard

to the third step, evaluating alternative control techniques, the EPA recognizes that the "technological

feasibility of reducing emissions from area sources depends on the ability to alter the characteristics that

affect emissions from the sources." Id. at 42,013. The characteristics to which the EPA refers "have to do

with the size or extent of the sources, their physical characteristics[,] and the operating procedures." Id.

Petitioners argue that the EPA failed to follow [**26] its own four-step process in determining BACM before

approving Rule 4550. We are not persuaded.

The administrative record shows that the District developed a detailed emissions inventory of source

categories for PM-10 and PM-10 precursors, as required by the first step, in 2004 as part of its revisions to

the San Joaquin Valley SIP. The EPA reviewed that inventory when it was submitted to it as part of the total

revisions to the SIP. 69 Fed. Reg. at 30,035. By approving all of the revisions to the SIP in 2004, the EPA

necessarily approved of the inventory of source categories submitted by the District. Id.

The record also shows that the EPA reviewed the District's de minimis analysis, as required by the second

step, when it proposed to approve the San Joaquin Valley SIP in 2004. 69 Fed. Reg. at 5,418. In that review,

the EPA concluded "that the commitments and rules for the significant source categories below meet the

RACM/BACM requirements" of 42 U.S.C. § 7513a(b)(1)(B). Id.

The third step for determining BACM is the evaluation of the technological and economic feasibility of the

control measures. 59 Fed. Reg. at 42,012. The record demonstrates that the District, together with the

AgTech [**27] Committee, conducted a thorough process in developing the CMP Program, in which the

feasibility of potential control measures was evaluated. Further, recognizing that new practices will become

available with the advent of technology, the District built into the CMP Program a means for upgrading the

CMP list as necessary. The District has committed to review the CMP list every three years. The District's

staff stated in 2004 that it is committed to using the best available research [*947] and to continue to work

with the EPA to ensure that thorough evaluations and assessments of possible new practices will be

conducted. The EPA noted the possibility of new practices in its approval of Rule 4550, stating that BACM

might change over time "to a progressively tighter or more ambitious program at later dates."

The fourth and final step in determining BACM is to evaluate the economic feasibility of implementing the

control measures. 59 Fed. Reg. at 42,013. The record contains detailed analyses of the CMPs and an

assessment of the costs, feasibility, and effects associated with them. 71 Fed. Reg. at 7,685. Those

analyses were included in the Staff Report that the EPA reviewed. 70 Fed. Reg. at 16,208. [**28] The

District evaluated the costs of the CMP Plans to the agricultural industry in its own Cost Effectiveness

Analysis and Socioeconomic Analysis. Additionally, the District's Staff Report, on which the EPA relied when

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it approved Rule 4550, includes a detailed chart that lists the potential CMPs, describes each, states the

benefits of each, and sets forth examples. 2 That Staff Report provides the District's rationale for selecting

the various options included in Rule 4550 as BACM.

2 The chart spans 20 pages and discusses the CMPs for croplands and poultry, dairy, and feedlot operations. An illustrative

CMP for cropland is conservation irrigation. The chart lists its benefits as conserving water, reducing weed population, reducing

the need for tillage, and reducing soil compaction. The chart issues the following directive as examples of methods for

conservation irrigation: use of drip or buried line in crop production; use of pressure bombs, water flow meters, or soil

monitoring devices; use of irrigation management consultants; and use of evapo-transpiration factors. An example CMP for a

feedlot operation is the addition of fibrous material to working areas, which prevents dust disturbance. [**29] The chart lists the

following as possible methods: adding wood chips or other materials to sorting alleys and high traffic areas to hold moisture and

keep down dust disturbance; putting damp manure solids right off the separator into the heifer pens on a daily basis; and

working the pens with a rotary harrow.

We have reviewed the EPA's approval of a similar SIP for compliance with 42 U.S.C. § 7513a(b)(1)(B). In

Vigil, the petitioners challenged the EPA's approval of a SIP submitted by Arizona to regulate a PM-10

serious nonattainment area. 381 F.3d at 830. The SIP contained a list of 34 potential control measures

divided among three categories of farm activities. Id. at 835. The regulation required commercial farmers to

implement at least one control measure per category. Id. at 836. The petitioners in that case argued that the

SIP did not meet BACM requirements because the state ought to require farmers to implement more than

one control measure in each category. Id.

We observed that the "[p]etitioners' argument would be compelling if the [Clean Air] Act required a state to

reduce its emissions to the maximum extent possible, regardless of cost." Id. But the EPA had defined

BACM to [**30] mean the maximum degree of emissions reduction that would be determined on a

case-by-case basis. Id. We thus held that the EPA properly concluded that Arizona had provided for the

maximum degree of emissions reduction, all things considered, because of the variability within the area and

the impossibility that a single control measure would work equally well for all agricultural operators. Id. at

837. We also acknowledged that the EPA had reviewed the process by which Arizona arrived at its SIP, a

process that included assembling representatives from agriculture, state, and federal agencies and the

University of Arizona meeting over several years, holding public hearings, and receiving public comments. Id.

at 838. We concluded that the EPA's approval of [*948] Arizona's general permit rule as BACM was not

arbitrary and capricious because of "the uncertainties involved in prescribing agricultural rules, the measures

that Arizona adopted, and the process by which Arizona had arrived at its BMPs." Id.

The EPA's approval process in this case was much like the process used in Vigil. First, the District

recognized that Rule 4550 must provide flexibility to the agricultural operator in choosing which [**31]

control measures to use because of the immense variability of agricultural sources. The EPA noted the need

for such flexibility in its evaluation. 71 Fed. Reg. at 7,684; 69 Fed. Reg. at 30,014. Indeed, in Vigil, we

recognized the need for flexibility with regard to agricultural sources of PM-10 emissions because

"[a]gricultural sources are unlike other stationary sources and unlike sources such as automobiles that have

common design features and may be subjected to a common or uniform control measure." 381 F.3d at 838.

Due to the variability of weather and market conditions, as well as the diversity among the agricultural

operators that fall under Rule 4550, it is reasonable to provide agricultural operators the flexibility to choose

whichever methods of PM-10 reduction will be feasible for their individual properties.

Second, the measures adopted here reasonably advance the goal of reducing PM-10 emissions. The CMP

list contains more than 100 practices that are divided among 18 CMP categories. Each agricultural operator

must adopt a minimum of one CMP from every applicable category. Relying on the conclusions reached by

the District and the AgTech Committee, the EPA concluded that Rule 4550 [**32] and the CMP list provide

the maximum degree of PM-10 emission reductions achievable from agricultural sources in the San Joaquin

Valley. 3

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3 The EPA's prediction turned out to be reasonable. The District's Conservation Management Practices Program Report for

2005 found that, from August 19, 2004, the date of the District's adoption of Rule 4550, through December 31, 2005, the District

estimated that PM-10 emissions reductions were 35.4 tons per day, which surpassed the CMP Program's commitment of

PM-10 emissions reductions of 33.8 tons per day.

Third, the process used by the District and approved by the EPA is very similar to the one we accepted in

Vigil: A committee composed of representatives from the government, agricultural industry, and academia

convened over a two-year period, held public hearings, and received public comments. Rule 4550 and the

CMP list grew out of that collaborative effort. There is no evidence in the record that the process was

improper in any way.

Petitioners attempt to distinguish Vigil by asserting that we face a different issue than the one presented in

Vigil: whether the EPA demonstrated that the controls included in the rule's menu meet the stringency

requirements [**33] of BACM. Although the context is different, our inquiry into whether the EPA properly

followed the procedures set forth by the Act remains the same. And, just as we held in Vigil, there is no

evidence here that the process which led to the creation and adoption of Rule 4550 was improper.

3. Rule 4550 meets statutory requirements.

Finally, Petitioners challenge the substance of Rule 4550. Our [HN17] role is only to ensure that the EPA

made no "clear error of judgment" that would render its action "arbitrary and capricious." 5 U.S.C. §

706(2)(A). Petitioners complain that "[t]he record contains only a few examples of the actual control

effectiveness of the various options," but there is no statutory requirement that the District outline the actual

control effectiveness of every option in order to obtain the EPA's approval.

[*949] Additionally, Petitioners complain that the CMP list lacks sufficient detail in its description of the

control measures. This argument misconstrues the manner in which the CMP Program is designed to work.

Rule 4550 sets forth the process for obtaining an approved CMP Plan from the District. The CMP Plan itself

contains the requirements with which each particular source must [**34] comply. Section 6.1 of Rule 4550

contains specific information that must be included in each application for each agricultural site. Pursuant to

sections 6.3 and 6.4, the application is then submitted, evaluated by the District, and either approved or

disapproved as the applicant's enforceable CMP Plan. The application forms developed by the District for

this purpose are crop-specific and solicit the details of how a chosen CMP is to be implemented.

Because the EPA made no clear error of judgment in ruling that Rule 4550 complies with BACM, because

the EPA followed its regulatory process, and because that process was consistent with one we approved in

Vigil, we hold that the EPA's approval of Rule 4550 did not violate 42 U.S.C. § 7513a(b)(1)(B).

PETITION DENIED.

CONCUR BY: Sidney R. Thomas

CONCUR

THOMAS, Circuit Judge, concurring:

I agree with the majority that the EPA's cramped reading of § 7509(d)(2) cannot be sustained, that §

7509(d)(2) applies to Rule 4550, and that the petitioners did not waive their objection to the EPA's

interpretation. I am also in accord that the EPA's interpretation of § 7509(d)(2)--that the statute requires only

those measures that the Administrator may reasonably prescribe in [**35] light of technological achievability,

costs, and economic, health, and environmental effects--is reasonable.

Additionally, I concede that our decision in Vigil v. Leavitt, 381 F.3d 826 (9th Cir. 2004), controls the question

of whether the "menu" approach to controlling emissions satisfies the statutory requirement that an area

designated as having a "serious" air pollution problem must implement the best available control measures.

Because I see no principled distinction to be drawn between Vigil and this case, I concur in full with the

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majority opinion.

Nevertheless, if I were writing on a clean slate, unconstrained by Vigil, I would grant the petition. Although I

see no principled distinction between this case and Vigil, I do not believe that the EPA's Vigil-approved

regime draws any distinction--much less a principled one--between the "best available control measures" to

be used in areas of "serious" pollution and the "reasonably available control measures" required in areas of

"moderate" pollution. If Vigil afforded any analytical difference between the two, it is an illusion to me now. As

such, the EPA's approval does not comply with statutory requirements.

The San Joaquin Valley [**36] is one of the nation's top producing agricultural areas, sometimes referenced

as "the nation's salad bowl." But the abundance of produce comes at a price. The Valley also hosts one of

the nation's worst particulate air pollution problems, the bulk of which is created by agricultural activity and

propelled by nature. As even the casual traveler driving down the Grapevine on the I-5 up to Sacramento's

Highway 51 can attest, "you don't need a weatherman to know which way the wind blows." 1 Gusts "blowing

down the backroads" 2 carry dangerous [*950] particulate emissions from the Valley to various locations in

California, from Yosemite to the Mojave Desert.

1 BOB DYLAN, Subterranean Homesick Blues, on BRINGING IT ALL BACK HOME (Columbia Records 1965).

2 BOB DYLAN, Idiot Wind, on BLOOD ON THE TRACKS (Columbia Records 1975).

Reacting to the Valley's attainment failure, the EPA redesignated it as a "serious non-attainment area," and

charged the District with producing a pollution control plan that would implement "best available control

measures," as opposed to "reasonably available control measures." However, rather than proposing such a

plan, the District suggested that individual growers and producers [**37] choose which of a lengthy list of

dust control measures could be implemented with the least cost, fuss or muss--leaving regulation to little

more than a simple twist of fate. Nothing in the plan prevents a grower from choosing the least effective

measures in each category, even if it would be as feasible and less expensive to implement a more effective

measure. The plan completely lacks uniformity in controlling the manner in which particulate matter shall be

released, even within the same agricultural category or geographic region. Neighbors raising the same crop

are not regulated in the same way. Simply put, the plan is a creature void of form. As such, it cannot comply

with the statutory directive that the region use "the best available control measures."

In the EPA's own provisional definitions of these terms, to which we defer, economic impacts are properly

considered in determining best available control measures. Nevertheless, "when comparing the terms

'reasonable' and 'best' as applied to control measures, the word 'best' strongly implies that there should be a

greater emphasis on the merits of the measure or technology alone and less flexibility in considering other

factors." [**38] Addendum to General Preamble, 59 Fed. Reg. 41,998, 42,011 (Aug. 16, 1994) (emphasis

added).

"Best" is a word that needs little elaboration, so it is one of those telltale signs that a concept is being drained

of meaning when elaborate rationalizations are posited. Here, the justification for not requiring producers and

growers to use the "best available control measures" is that agriculture is complicated. That observation, in

some senses, is doubtless true. But the subject at hand is dust control--not, for example, how technologically

best to remove sulphur from coal. The pollution control methods offered producers and growers as

alternatives in the District's plan are such measures as observing the speed limit on dirt roads and cleaning

out livestock pens when the wind is known to be calm.

Unquestionably, the notion of preventing soil erosion is not new. Plato worried about "the richer and softer

portions of the soil having fallen away, and the mere skeletons of the land being left." 3 In more modern

times, the devastation of Oklahoma's dust bowl forged new methods of dust control in farming. Likewise,

techniques of proper livestock management have been standardized for more than [**39] half a century. 4

To rationalize the lack of any basic dust control standards by arguing that agriculture is just too complicated

to regulate defies reality and common sense.

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3 PLATO, CRITIAS (360 B.C.E.).

4 M.E. ENSMINGER, THE STOCKMAN'S HANDBOOK (Interstate Printers and Publishers, 1955); FRANK B. MORRISON,

FEEDS AND FEEDING (Morrison Publishing Co., 21st ed. 1948).

To be sure, if we were considering the District's implementation of "reasonably available control measures,"

applied in areas of moderate pollution, I would have no quarrel. In many ways, the District's plan is quite

laudable, particularly in these hard times, when margins in our vital agricultural economy are thin or

non-existent, and many growers and producers are facing potential insolvency. Given that grim [*951]

reality, of which I am acutely aware, I certainly cannot fault the District for attempting to minimize the financial

impact of environmental regulations, while committing to improve ambient air quality.

Enticing as those considerations are, however, they are quite beside the point to the legal analysis required

of us. When an area's air pollution problem has graduated from "moderate" to "serious," Congress has

mandated [**40] that the "best available control measures" be employed. Perhaps that standard doesn't

require growers to control every grain of sand. But can we really say with a straight face that an amalgam of

second, third, or tenth best available control measures is, in the aggregate, the "best available control

measure?" In the San Joaquin Valley, the answer is blowing in the wind.

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