* This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3. NOT FOR PUBLICATION UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

OUR CHILDREN’S EARTH FOUNDATION, Petitioner,

v. UNITED STATES ENVIRONMENTAL PROTECTION AGENCY, Respondent, BAY AREA AIR QUALITY MANAGEMENT DISTRICT, Respondent - Intervenor. No. 04-73032EPA No. CA258-0442(A), FRL7645-7; CA258-0442(B), FRL7645-8

MEMORANDUM *

On Petition for Review of an Order of the Environmental Protection Agency Argued & Submitted June 13, 2005 San Francisco, California 

# FILED

JUN 28 2005 CATHY A. CATTERSON, CLERK U.S. COURT OF APPEALS** The Honorable Kevin Thomas Duffy, United States Senior District Judge for the Southern District of New York, sitting by designation. 2 Before: SCHROEDER, Chief Judge, McKEOWN, Circuit Judge, and DUFFY ** , Senior Judge. Our Children’s Earth Foundation challe nges the Environmental Protection Agency’s (“EPA’s”) April 22, 2004 final rules (69 Fed. Reg. 21,715; 69 Fed. Reg. 21,717) that determined the San Francisco Bay Area (“Bay Area”) attained the 1- hour ozone national ambient air quality standard (“NAAQS”), suspended the application of the non-attainment area state implementation plan (“SIP”) requirements in 42 U.S.C. §§ 7502(c)(1), (2 ) and (9), and stayed and deferred 42 U.S.C. § 7509 sanctions. We deny the petition for review. EPA’s finding of attainment was within its administrative authority. EPA has rounded three-digit ozone monitoring results to match the two-digit 1-hour ozone NAAQS in 40 C.F.R. § 50.9(a)—consistent with its 1979 Guideline for the Interpretati on of Ozone Air Quality Standards. Application of this rounding convention fo r the purposes of determining attainment of the 1-hour ozone NAAQS does not conflict with Table 1 in 42 U.S.C. § 7511(a)(1) because the three-digit desi gn values included in the table are applicable to severity classifications fo r areas already classified as non-attainment and are not applicable to an initial determin ation of attainment. To the extent there3 is any ambiguity in this statutory scheme , we defer to the EPA’s interpretation of an ambiguous statute. Chevron U.S.A., In c. v. Natural Resources Defense Council , 467 U.S. 837, 843 (1984) (“[I]f the statute is silent or ambiguous with respect to the specific issue, the question for the c ourt is whether the agency’s answer is based on a permissible construction of the statute.”). We also affirm the EPA’s authority to suspend the applicability of the nonattainment area SIP requirements in 42 U.S .C. §§ 7502(c)(1), (2) and (9) after the finding of attainment. Even when giving the benefit of the doubt to Our Children’s Earth Foundation, 42 U.S.C. §§ 7502(c )(1), (2) and (9) and 42 U.S.C. § 7505a do not unambiguously resolve whether the SIP requirements in 42 U.S.C. §§ 7502(c)(1), (2) and (9) apply to a non-attainment area that EPA determines achieved attainment but has not been re designated to attainment under 42 U.S.C. § 7407(d)(3)(E). Therefore, we defer to EPA’s conclusion that 42 U.S.C. §§ 7502(c)(1), (2) and (9) do not apply to the Bay Area as long as it continues to achieve attainment. Chevron , 467 U.S. at 843. We also note that the EPA’s new 8-hour ozone standard, effective June 15, 2005, moots the application of the contingency measures non-attainment area SIP requirement in 42 U.S.C. § 7502(c)(9). Implementation of the 8-hour Ozone National Ambient Air Quality Standard–P hase 1, Reconsideration, 70 Fed. Reg.4 30,592, 30,599 (May 26, 2005). Even if th e contingency measures requirement is not mooted by the new 8-hour ozone rule, EPA’s suspension of the contingency measures requirement after the Bay Area achieved attainment of the 1-hour ozone NAAQS deserves deference and was not in error. Because the EPA’s suspension of the three non-attainment area SIP requirements was not in error, the cha llenge to EPA’s stay and deferral of 42 U.S.C. § 7509 sanctions also is denied. PETITION DENIED.