This disposition is not appropriate for publication and is not precedent *

except as provided by 9th Cir. R. 36-3.

NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

 FOR THE NINTH CIRCUIT

LATINO ISSUES FORUM; MEDICAL

ADVOCATES FOR HEALTHY AIR;

SIERRA CLUB,

 Petitioners,

 v.

UNITED STATES ENVIRONMENTAL

PROTECTION AGENCY,

 Respondent,

SAN JOAQUIN VALLEY UNIFIED AIR

POLLUTION CONTROL DISTRICT;

AIR COALITION TEAM,

 Respondents-Intervenors.

No. 06-75831

EPA

MEMORANDUM *

LATINO ISSUES FORUM; MEDICAL

ADVOCATES FOR HEALTHY AIR;

SIERRA CLUB,

 Petitioners,

 v.

No. 08-71238

EPA

FILED

MAR 02 2009

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

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UNITED STATES ENVIRONMENTAL

PROTECTION AGENCY,

 Respondent,

SAN JOAQUIN VALLEY UNIFIED AIR

POLLUTION CONTROL DISTRICT;

AIR COALITION TEAM,

 Respondents-Intervenors.

On Petition for Review of a Final Action of the

Environmental Protection Agency

Argued and Submitted February 10, 2009

San Francisco, California

Before: SCHROEDER, CANBY and HAWKINS, Circuit Judges.

These consolidated petitions for review challenge the Environmental

Protection Agency’s determination that the San Joaquin Valley of California is in

compliance with Clean Air Act standards for PM-10. The petitioners are the

Latino Issues Forum and other non-profit groups concerned with the quality of the

environment in central California. The Agency’s final action was published in

March of 2008. 73 Fed. Reg. 14687 (Mar. 19, 2008). 

Our review is under the Administrative Procedure Act, 5 U.S.C.

§ 706(2)(A), and is limited to considering whether the action of the EPA was

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arbitrary or capricious. There are before us no issues of law requiring statutory or

regulatory interpretation. 

The petitioners’ principal contention is that the Agency acted arbitrarily or

capriciously in determining that two “exceedances” of the PM-10 standard

reflected in monitors at Bakersfield, Oildale, and Corcoran were caused by

“exceptional events” within the meaning of 42 U.S.C. § 7619(b). The petitioners

submitted various objections and alternative scientific bases to show that the

exceedances were not “exceptional events,” i.e., beyond the control of those

charged with reducing air pollution. The EPA explained the reasons why it was

relying on its own scientific data and modeling formulas to determine that

unusually high winds caused the exceedances. Its explanation was not arbitrary or

capricious. 

This court owes deference to the EPA in the choice of scientific method that

is within its own expertise. Ass’n of Irritated Residents v. EPA, 423 F.3d 989, 997

(9th Cir. 2005). The petitioners submitted an affidavit of a scientist who disagreed

with the methodologies of the EPA, but the Agency took his view into account

when it reviewed all of the scientific evidence before issuing its final determination

that these exceedances were caused by “exceptional events.” The existence of

scientific disagreement is not a basis for concluding that an agency acted

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irrationally in choosing one view over another. See Bear Lake Watch, Inc. v.

FERC, 324 F.3d 1071, 1076-77 (9th Cir. 2003); Cent. Ariz. Water Consol. Dist. v.

EPA, 990 F.2d 1531, 1540 (9th Cir. 1993).

Petitioners also dispute the EPA’s handling of exceedances recorded on a

monitor located on the tribal reservation, known as the Santa Rosa Rancheria

monitor. The exceedances recorded there were apparently caused by construction

activity of a temporary nature. The EPA reasonably determined because the

exceedances were the result of an “exceptional event,” they were not likely to

recur. Petitioners seem to quarrel with the EPA’s description of the type of

construction activity being undertaken, but do not seriously dispute that

construction was ongoing during the period that the monitors were in operation and

recording exceedances of the PM-10 standard. We therefore cannot say that the

EPA’s conclusion that construction activities caused the exceedances was arbitrary

or capricious. 

Finally, petitioners challenge the interim application of the “Clean Data

Policy” to the San Joaquin Valley before it was formally redesignated as an

attainment area for PM-10. The Clean Data Policy expressly applies to areas

currently attaining ozone and PM-2.5 standards, but there is no similar written

regulation governing areas attaining PM-10 standards. It was not unreasonable,

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however, for the EPA to apply the policy to an area that was currently attaining the

PM-10 standards. As the EPA rationally explained, if an area is in compliance

with PM-10 standards, then further progress for the purpose of ensuring attainment

is not necessary. 

The petitions are DENIED. 

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