* 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NOT FOR PUBLICATION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. 04-73032

EPA 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 challenges the Environmental Protection

Agency’s (“EPA’s”) April 22, 2004 final rules (69 Fed. Reg. 21,715; 69 Fed. Reg.

21,717) that determined the San Francisco Bay Area (“Bay Area”) attained the 1-

hour ozone national ambient air quality standard (“NAAQS”), suspended the

application of the non-attainment area state implementation plan (“SIP”)

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 Interpretation of Ozone Air Quality Standards. 

Application of this rounding convention for 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 design values included in the table are

applicable to severity classifications for areas already classified as non-attainment

and are not applicable to an initial determination of attainment. To the extent there
3

is any ambiguity in this statutory scheme, we defer to the EPA’s interpretation of

an ambiguous statute. Chevron U.S.A., Inc. 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 court 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 redesignated 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–Phase 1, Reconsideration, 70 Fed. Reg.
4

30,592, 30,599 (May 26, 2005). Even if the contingency measures requirement is

not mooted by the new 8-hour ozone rule, EPA’s suspension 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 challenge to EPA’s stay and deferral of 42

U.S.C. § 7509 sanctions also is denied. 

PETITION DENIED.