FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

ASSOCIATION OF IRRITATED 

RESIDENTS, a California non-profit 

corporation,

Petitioner,

v.

U.S. ENVIRONMENTAL PROTECTION 

AGENCY; GINA MCCARTHY, in her 

official capacity as Administrator of 

the U.S. Environmental Protection 

Agency; JARED BLUMENFELD, in his 

official capacity as Regional 

Administrator for region IX of the 

U.S. Environmental Protection 

Agency,

Respondents,

FOSTER POULTRY FARMS; FOSTER 

FARMS LLC; DAIRY CARES; SAN 

JOAQUIN VALLEY UNIFIED AIR 

POLLUTION CONTROL DISTRICT; AIR 

COALITION TEAM,

Respondents-Intervenors.

No. 13-73398

OPINION
2 ASS’N OF IRRITATED RESIDENTS V. EPA

On Petition for Review of an Order of the

Environmental Protection Agency

Argued and Submitted

February 10, 2015—San Francisco, California

Filed June 23, 2015

Before: Mary M. Schroeder, Senior Circuit Judge, Barry 

G. Silverman, Circuit Judge, and Marvin J. Garbis, Senior 

District Judge.*

Opinion by Judge Garbis

SUMMARY**

Environmental Law

The panel denied a petition for review brought by the 

Association of Irritated Residents seeking review of the 

United States Environmental Protection Agency’s 

promulgation of 40 C.F.R. § 52.245 under § 110(k)(6) of 

the Clean Air Act, an error-correcting provision, after the 

EPA determined that it had mistakenly approved certain 

 * The Honorable Marvin J. Garbis, Senior United States District 

Judge for the District of Maryland, sitting by designation.

 ** This summary constitutes no part of the opinion of the court. It has 

been prepared by court staff for the convenience of the reader.

 
ASS’N OF IRRITATED RESIDENTS V. EPA 3

New Source Review rules in 2004 as part of California’s 

State Implementation Plan.

The panel held that the EPA was not arbitrary, nor did it 

abuse its discretion, in correcting the prior approval of the 

New Source Review rules after it learned that California 

law, California Senate Bill 700, did not authorize the San 

Joaquin Air Control District to require new source permits 

or emissions for minor agricultural sources. The panel 

further held that because those rules conflicted with state 

law, they should not have been incorporated into the State 

Implementation Plan, and the EPA did not act improperly 

in correcting its prior approval.

The panel held, as a matter of first impression, that the 

EPA reasonably interpreted § 110(k)(6) of the Clean Air 

Act to grant the EPA authority to amend retroactively its 

approval of the 2004 New Source Review rules.

COUNSEL

Brent Newell (argued), Center on Race, Poverty & the 

Environment, Oakland, California; Sofia Parino, Center on 

Race, Poverty & the Environment, San Francisco, 

California, for Petitioners.

Robert Dreher, Acting Assistant Attorney General, and 

Simi Bhat (argued), Environmental Defense Section, 

Environmental & Natural Resources Division, United 

States Department of Justice, Washington, D.C.; Jefferson 

Wehling, United States Environmental Protection Agency, 

Region IX, Office of Regional Counsel, San Francisco,

California; Scott Jordan, United States Environmental
4 ASS’N OF IRRITATED RESIDENTS V. EPA

Protection Headquarters, Office of General Counsel, 

Washington, D.C., for Respondents.

Philip M. Jay (argued), Rissa A. Stuart, and Ann M. 

Grottveit, Kahn, Soares & Conway, LLP, Sacramento, 

California, for Respondent-Intervenor Air Coalition Team.

David E. Cranston and Sedina L. Banks, Greenberg 

Glusker Fields Claman & Machtinger LLP, Los Angeles, 

California, for Respondent-Intervenor Dairy Cares.

Timothy S. Bishop (argued), Mayer Brown LLP, Chicago, 

Illinois; Carmine R. Zarlenga, Michael B. Kimberly, and 

Matthew A. Waring, Mayer Brown LLP, Washington, 

D.C., for Respondents-Intervenors Foster Farms, LLC and 

Foster Poultry Farms, Inc.

Catherine T. Redmond, Special Advisory Counsel, and 

Annette Ballatore-Williamson (argued), District Counsel,

San Joaquin Valley Unified Air Pollution Control District, 

Fresno, California, for Respondent-Intervenor San Joaquin 

Valley Unified Air Pollution Control District.

OPINION

GARBIS, District Judge:

Petitioner, Association of Irritated Residents (“AIR”), 

petitions this court for review of the United States 

Environmental Protection Agency’s (“EPA”) promulgation 

of 40 C.F.R. § 52.245, a regulation that revised the scope of 

a previous EPA decision. The EPA promulgated the 

regulation under § 110(k)(6) of the Clean Air Act (“CAA,” 
ASS’N OF IRRITATED RESIDENTS V. EPA 5

“Act”), an error-correcting provision, after the Agency 

determined that it had mistakenly approved certain New 

Source Review rules in 2004 as part of California’s State 

Implementation Plan.

This case requires the court to address two matters. 

First, this court must decide whether the EPA reasonably 

determined that it made the error. This court holds that the 

EPA was not arbitrary, nor did it abuse its discretion in 

correcting its prior approval of the New Source Review 

rules after it learned that California law, specifically Senate 

Bill 700, did not authorize the San Joaquin Air Control 

District to require new source permits or emissions offsets 

for minor agricultural sources. Because those rules 

conflicted with state law, they should not have been 

incorporated into the State Implementation Plan in 2004; 

thus, the EPA did not act improperly in correcting its prior 

approval.

Second, as a matter of first impression, this court must 

decide whether § 110(k)(6) of the CAA grants the EPA 

authority to amend retroactively its approval of the 2004 

New Source Review rules. Petitioner argues that the other 

enumerated actions in § 110(k) strictly limit the EPA’s 

methods of revising an error. Using the standard set forth 

in Chevron, U.S.A., Inc. v. Natural Resources Defense 

Council, Inc., 467 U.S. 837 (1984), we find that § 110(k)(6) 

does not clearly speak to the issue at hand. In light of this 

ambiguity, the EPA reasonably interpreted § 110(k)(6)’s 

requirement that the EPA “revise such [erroneous] action as 

appropriate” to encompass a retroactive limitation of its 

previous approval. Accordingly, we deny the petition for 

review.
6 ASS’N OF IRRITATED RESIDENTS V. EPA

I. Background

A. The Clean Air Act

Congress enacted the CAA amendments in 1970 “to 

protect and enhance the quality of the Nation’s air 

resources so as to promote the public health and welfare 

and the productive capacity of its population.” 42 U.S.C. 

§ 7401(b)(1). At that time, Congress also created the EPA 

and charged it with setting National Ambient Air Quality 

Standards (“NAAQS”) for various harmful air pollutants at 

levels necessary to protect the public health and welfare. 

42 U.S.C. §§ 7408, 7409. The EPA must designate areas 

for each NAAQS as attainment (it meets the EPA-set 

pollutant level), nonattainment (it does not meet the EPAset pollutant level), or unclassifiable. 42 U.S.C. 

§ 7407(d)(1). The EPA is charged with assuring 

compliance with environmental laws and taking 

enforcement action against violations. See 42 U.S.C. 

§ 7413(a), (b).

Under the CAA, the EPA works with the states 

pursuant to a model of cooperative federalism to achieve 

the statute’s environmental goals. Vigil v. Leavitt, 381 F.3d 

826, 830 (9th Cir. 2004). The Act delegates to the states 

“primary responsibility for assuring air quality” within their 

respective boundaries and requires each state to develop a 

State Implementation Plan (“SIP”), “which will specify the 

manner in which [the NAAQS] will be achieved and 

maintained.” 42 U.S.C. § 7407(a). In California’s San 

Joaquin Valley, the San Joaquin Valley Unified Air 

Pollution Control District (the “District”) promulgates and 

enforces regulations to meet the standards set by the EPA. 

A state submits its SIP to the EPA for review and approval 

whenever the NAAQS are updated. 42 U.S.C. § 7410(a). 

Once an adequate SIP (one that meets the Act’s 
ASS’N OF IRRITATED RESIDENTS V. EPA 7

requirements) is approved by the EPA, it has “the force and 

effect of federal law.” Safe Air for Everyone v. EPA, 488 

F.3d 1088, 1091 (9th Cir. 2007). The CAA requires states 

to give the EPA “necessary assurances” that state law 

authorizes the air control districts to carry out any rules 

contained in the SIP. 42 U.S.C. § 7410(a)(2)(E).

In 1977, Congress enacted the CAA’s New Source 

Review (“NSR”) program “to strengthen the safeguards 

that protect the nation’s air quality.” New York v. EPA, 

413 F.3d 3, 10 (D.C. Cir. 2005). The NSR program 

requires new and modified major sources, 1 in nonattainment areas, to acquire construction permits, install 

Best Available Control Technology (“BACT”), and 

purchase offsets from other sources (emission reductions). 

42 U.S.C. §§ 7502(c), 7503(a). A minor source is subject 

to the EPA regulations, although it is not required to have 

NSR permits for all construction activities. A minor source 

is not subject to offset requirements unless the state 

chooses to establish them as part of the SIP.

B. California’s Implementation of the Clean Air 

Act

California’s Central Valley, which includes the San 

Joaquin Valley, has, and at all times relevant hereto, had, a 

major air pollution problem. In 2004, the EPA designated 

 1 A major source is defined as a source that emits above a threshold 

level of any air pollutant. See, e.g., 42 U.S.C. § 7511a(e) (designating a 

source as major when it has the potential to emit at least ten tons of 

volatile organic compounds a year). A minor source is one that is not 

major.

 
8 ASS’N OF IRRITATED RESIDENTS V. EPA

the San Joaquin Valley as a non-attainment area for the 8-

hour ozone standard. See 69 Fed. Reg. 23,858, 23,889 

(Apr. 30, 2004).

Ground-level ozone (aka smog) forms when volatile 

organic compounds (“VOCs”) react with nitrogen oxides in 

the presence of heat and sunlight during the summer. 

Ozone pollution causes serious health problems, including

damaging lung tissue and exacerbating asthma and other 

respiratory diseases. 69 Fed. Reg. at 23,859–60.

The District estimated that, even with air pollution 

controls, confined animal facilities were among the largest 

sources of VOCs in the Valley. Nevertheless, California’s 

former California Health & Safety Code § 42310(e) 

exempted agricultural operations, including those that 

would be considered major sources under the CAA, from 

the NSR permit obligations until 2003. Due to this blanket 

exemption, the EPA would not accept the District’s 

proposed NSR Rules to the SIP because California could 

not “give necessary assurances” that it had authority under 

state law to carry out the SIP. See 68 Fed. Reg. 37,746, 

37,747 (June 25, 2003).

In order to avoid sanctions and loss of federal highway 

funding, the California legislature passed Senate Bill 700 

(“SB 700”) in September 2003, which removed the blanket 

exemption that had previously excused all agricultural 

sources from the CAA’s NSR requirements. California 

state law then required major agricultural sources to meet 

the pollution controls required by the CAA and the 

proposed NSR Rules. However, SB 700 retained narrow 
ASS’N OF IRRITATED RESIDENTS V. EPA 9

exemptions2 that excused certain minor agricultural sources 

from NSR permitting and offset requirements.

Around this same time, the EPA considered District 

Rules 2020 and 2201 (the “2004 NSR Rules”), which the 

District had submitted in 2002 to the EPA for approval. 

The 2004 NSR Rules required new source permits and 

offset requirements for all new and modified stationary 

sources of air pollution, whether major or minor. See

68 Fed. Reg. 7,330, 7,331 (Feb. 13, 2003). In evaluating 

the 2004 NSR Rules, the EPA failed to realize that the 

Rules conflicted with SB 700, which continued to exempt 

certain minor agricultural sources. The EPA approved the 

2004 NSR Rules – sans exemptions for minor agricultural 

sources – which became effective on June 16, 2004. See 

69 Fed. Reg. 27,837 (May 17, 2004).

Beginning in 2005, AIR filed three citizen suits3 in the 

Eastern District of California against dairy farms that were 

minor agricultural sources under the CAA. See Assoc. of 

Irritated Residents v. C & R Vanderham Dairy, No. 05-

01593 (E.D. Cal. Dec. 15, 2005) (“Vanderham”); Assoc. of 

Irritated Residents v. Fred Schakel Dairy, No. 05-00707 

(E.D. Cal. June 1, 2005); Assoc. of Irritated Residents v. 

Foster Farms, LLC, No. 06-01648 (E.D. Cal. Nov. 15, 

2006). AIR alleged that the dairies violated the 2004 NSR 

Rules by not obtaining a permit, purchasing offsets, or 

 2 Cal. Health & Safety Code § 42301.18(c) (“Offset Provision”). See 

also Cal. Health & Safety Code § 39011.5(b) ,(c) (“Savings Clauses”).

 3 An approved SIP may be enforced by citizens in federal court as 

well as by the EPA. 42 U.S.C. § 7604(a).

 
10 ASS’N OF IRRITATED RESIDENTS V. EPA

installing BACT. See, e.g., Vanderham, 2007 WL 

2815038, at *1 (E.D. Cal. Sept. 25, 2007). In Vanderham, 

the district court granted summary judgment in favor of 

AIR and held that the defendants violated the 2004 NSR 

Rules. Id. at *29.

C. The EPA’s Error

After the Vanderham decision, the EPA realized that it 

had made an error in approving the 2004 NSR Rules, 

because the District did not have authority under SB 700 to 

enforce the permit and offset provisions of those Rules 

against certain minor agricultural sources. Specifically, the 

EPA found that the District did not have authority under 

SB700 “to require permits for new or modified minor 

agricultural sources with actual emissions less than 50 

percent of the major source threshold or to require new 

minor agricultural sources or minor modifications to 

agricultural sources to obtain emission reduction offsets.” 

See 78 Fed. Reg. 46,504, 46,505-06 (Aug. 1, 2013); Cal. 

Health & Safety Code §§ 42301.16, 42301.18(c). 

However, the CAA requires SIP revisions to be supported 

by necessary assurances from the State that the District will 

have adequate authority under State law to carry out the 

revised SIP. See 78 Fed. Reg. at 46, 511; 42 U.S.C. 

§ 7410(a)(2)(E).

In 2008 and 2009, California submitted SIP revisions to 

amend the 2004 NSR Rules to include the state law 

exemptions. In 2010, the EPA proposed a rule that would 

modify its 2004 approval and correct the mismatch between 

state law and the SIP. See 75 Fed. Reg. 4,745 (Jan. 29, 

2010). The new 2010 NSR Rules, complete with the state 

exemptions, replaced the 2004 NSR Rules and were 

incorporated into the SIP. See 75 Fed. Reg. 26,102 (May 

11, 2010). However, this fix was only prospective and did 
ASS’N OF IRRITATED RESIDENTS V. EPA 11

not eliminate the mismatch between the SIP and state law 

that existed from 2004 to 2010.

To correct this error retroactively, the EPA relied on 

§ 110(k)(6) of the CAA which states:

Whenever the Administrator determines that 

the Administrator’s action approving, 

disapproving, or promulgating any plan or 

plan revision (or part thereof), . . . was in 

error, the Administrator may in the same 

manner as the approval, disapproval, or 

promulgation revise such action as 

appropriate without requiring any further 

submission from the State. Such 

determination and the basis thereof shall be 

provided to the State and public.

42 U.S.C. § 7410(k)(6). Specifically, the EPA proposed 

correcting its error by amending its previous approval of 

the 2004 NSR Rules so that the approval was limited to be 

consistent with state law. 78 Fed. Reg. at 46,506. The EPA 

considered a retroactive limited approval to be the most 

appropriate response because it was a “narrowly tailored” 

approach that retained most of the pollution control aspects 

of the 2004 NSR Rules but still remedied the mismatch 

between the SIP and state law. See 78 Fed. Reg. at 46,511. 

In light of this proposed action, the district court stayed the 

Vanderham and other citizen suits cases pending judicial 

review of the EPA’s final action. See Vanderham, 2008 

WL 678590, at *2 (E.D. Cal. Mar. 11, 2008); Fred Schakel 

Dairy, 634 F. Supp. 2d 1081, 1096 (E.D. Cal. 2008); Foster 

Farms, 06-1648, Minute Order (E.D. Cal. Aug. 13, 2013) 

(No. 66).
12 ASS’N OF IRRITATED RESIDENTS V. EPA

Before the EPA finalized its error correction in 2013, it 

requested the California Attorney General to interpret SB 

700 and its bearing on the District’s authority to require 

permits and offsets from minor agricultural sources. In two 

letters, the Attorney General confirmed the EPA’s view 

that SB 700 did not give the District authority to apply the 

2004 NSR Rules to certain minor agricultural sources or 

require offsets.

The EPA then revised the scope of its 2004 approval, 

78 Fed. Reg. at 46,511, and promulgated the final rule 

limiting its 2004 approval to cover only the air pollution 

controls allowed by state law. See 40 C.F.R. § 52.245. The 

new regulation states:

(a) Approval of the [2004] New Source 

Review rules for the San Joaquin Valley 

Unified Air Pollution Control District Rules 

2020 and 2201 as approved on May 17, 

2004 in § 52.220(c)(311)(i)(B)(1), and in 

effect for Federal purposes from June 16, 

2004 through June 10, 2010, is limited, as it 

relates to agricultural sources, to the extent 

that the permit requirements apply:

(1) To agricultural sources with potential 

emissions at or above a major source 

applicability threshold; and

(2) To agricultural sources with actual 

emissions at or above 50 percent of a 

major source applicability threshold.

(b) Approval of the [2004] New Source 

Review rules . . . is limited, as it relates to 

agricultural sources, to the extent that the 
ASS’N OF IRRITATED RESIDENTS V. EPA 13

emission offset requirements apply to major 

agricultural sources and major modifications 

of such sources.

40 C.F.R. § 52.245. The error correction was in the form 

of notice-and-comment rulemaking, the same procedure the 

EPA had used to approve the 2004 rules.

D. The Instant Lawsuit

AIR challenges the EPA’s promulgation of 40 C.F.R. 

§ 52.245, the regulation that corrected the EPA’s approval 

of the 2004 NSR rules, on two grounds. First, AIR claims 

that § 110(k)(6) of the CAA authorizes the EPA to correct 

only its own erroneous approval or disapproval and does 

not give the EPA authority retroactively to limit or amend a 

SIP. Second, AIR asserts that even if the EPA has 

authority retroactively to revise its approval of the 2004 

SIP, it did not need to correct the approval because (a) the 

plain meaning of SB 700 does not exempt minor 

agricultural sources from obtaining permits and offsets 

under the District Rules and (b) the Savings Clauses grant 

the District with the authority to regulate minor agricultural 

sources regardless of the other provisions. AIR requests 

that this court vacate 40 C.F.R. § 52.245. The following 

Intervenors, representing various agricultural interests, 

organizations and an air pollution control district, appear on 

the EPA’s behalf: Air Coalition Team (“ACT”), Dairy 

Cares, Foster Farms, LLC, Foster Poultry Farms, and San 

Joaquin Valley Unified Air Pollution Control District.
14 ASS’N OF IRRITATED RESIDENTS V. EPA

Petitioner filed a petition for review of the EPA’s 

promulgation of 40 C.F.R. § 52.245 in this court on 

September 27, 2013. This court has jurisdiction under the 

CAA § 307(b)(1), 42 U.S.C. § 7607(b)(1).4

II. Discussion

A. Standard of Review

The CAA does not specify a standard of review of the 

EPA actions. Therefore, this court reviews the EPA’s 

action under the standard set forth in the Administrative 

Procedure Act (“APA”). Sierra Club v. EPA, 671 F.3d 

955, 961 (9th Cir. 2012).

Section 706 of the APA provides that a court may 

reverse an agency action found to be “arbitrary, capricious, 

an abuse of discretion, or otherwise not in accordance with 

 4 Intervenors ACT and Foster Farms contend that AIR’s individual 

members do not have standing because (a) their injuries are not “fairly 

traceable” to the EPA’s action and (b) vacating the EPA’s finalized 

error correction will not redress their injuries. This court finds that 

both causation and redressability are established for purposes of this 

suit and thereby rejects the Intervenors’ challenge. In light of studies 

which show that dairy and poultry facilities greatly contribute to the 

amount of VOCs in the Valley, it stands that AIR’s members’ injuries 

are enhanced by the EPA’s rule, which retroactively lessens the 

controls on pollution-emitting agricultural sources. Also, were it not 

for the EPA’s proposed correction, AIR would have been able to 

continue with its citizen suits enforcing the 2004 NSR Rules. 

Therefore, this court concludes that the Petitioners have standing to 

challenge the EPA’s promulgation of 40 C.F.R. § 52.245. See, e.g., 

WildEarth Guardians v. EPA, 759 F.3d 1064, 1072 (9th Cir. 2014); 

Sierra Club v. EPA, 762 F.3d 971, 977 (9th Cir. 2014).

 
ASS’N OF IRRITATED RESIDENTS V. EPA 15

law.” 5 U.S.C. § 706(2)(A). When applying this standard, 

the court does not “substitute its judgment for that of the 

agency.” Motor Vehicle Mfrs. Ass’n of U.S., Inc. v. State 

Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983); Nw. 

Ecosystem Alliance v. United States Fish & Wildlife Serv., 

475 F.3d 1136, 1140 (9th Cir. 2007). Instead, this court 

“consider[s] whether the decision was based on a 

consideration of the relevant factors,” Citizens to Preserve 

Overton Park, Inc. v. Volpe, 401 U.S. 402, 416 (1971), and 

whether the agency articulated a “rational connection 

between the facts found and the choice made,” Burlington 

Truck Lines v. United States, 371 U.S. 156, 168 (1962).

When reviewing the EPA’s interpretation of 

§ 110(k)(6) of the CAA, this court applies the two-step 

analysis provided in Chevron U.S.A., Inc. v. Natural Res. 

Def. Council, Inc., 467 U.S. 837, 842–43 (1984). First, the 

court must decide whether Congress has unambiguously 

and “directly spoken to the precise question at issue.” Id. at 

842. If so, this court will give effect to the congressional 

intent expressed in the statute. Id. at 842–43. To discover 

“the plain meaning of the statute, the court must look to the 

particular statutory language at issue, as well as the 

language and design of the statute as a whole.” K Mart 

Corp. v. Cartier, Inc., 486 U.S. 281, 291 (1988). If, 

however, “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.” Chevron, 467 U.S. at 843. “EPA’s 

interpretation of its own regulations is given considerable 

deference and ‘must be given controlling weight unless it is 

plainly erroneous or inconsistent with the regulation.’” 

Comm. for a Better Arvin v. EPA, — F.3d —, No. 11-

73924, 2015 WL 2384556, at *3 (9th Cir. May 20, 2015) 
16 ASS’N OF IRRITATED RESIDENTS V. EPA

(quoting Thomas Jefferson Univ. v. Shalala, 512 U.S. 504, 

512 (1994)).

B. The EPA’s Error Determination

We begin our inquiry by determining whether the EPA 

made an error that needed to be corrected. We ask whether 

the EPA acted arbitrarily or capriciously, abused its 

discretion, or contradicted the CAA when it decided there 

was a mismatch between state law and the SIP. See 

5 U.S.C. § 706(2)(A). According to AIR, the District did

have authority under state law to carry out the 2004 SIP, 

thus there was no mistake. The parties’ disagreement arises 

out of conflicting interpretations of SB 700’s Offset 

Provision and Savings Clauses.

In reviewing agency action pursuant to § 706:

Although we presume regulations to be 

valid, our inquiry into their validity is a 

“thorough, probing, in-depth review.”

. . .

To determine whether the agency action was 

arbitrary and capricious, we must decide 

whether the agency “considered the relevant 

factors and articulated a rational connection 

between the facts found and the choice 

made.” An agency action must be reversed 

when the agency has “relied on factors 

which Congress has not intended it to 

consider, entirely failed to consider an 

important aspect of the problem, offered an 

explanation for its decision that runs counter 

to the evidence before the agency, or is so 
ASS’N OF IRRITATED RESIDENTS V. EPA 17

implausible that it could not be ascribed to a 

difference in view or the product of agency 

expertise.” Our review of an agency 

decision is based on the administrative 

record and the basis for the agency’s 

decision must come from the record. We 

cannot substitute our judgment for that of 

the agency.

Nat’l Ass’n of Home Builders v. Norton, 340 F.3d 835, 841 

(9th Cir. 2003) (internal citations omitted). Thus, the court 

will uphold the EPA’s action as long as the EPA employed

a rational, non-arbitrary process to determine if it had made 

an error.

At the outset, we note that while our court is not 

required to defer to the Attorney General, it need not 

interpret SB 700 for itself as long as it determines that the 

EPA did not clearly go against the plain meaning of the 

statute.5 The pertinent provisions of SB 700 are 

 5 ACT and the San Joaquin Valley District challenge this court’s 

jurisdiction under 42 U.S.C. § 7607(b)(1) to hear AIR’s claims 

involving the District’s, CARB’s, and the Attorney General’s 

interpretation of SB 700. They claim that these types of challenges are 

suited for a state forum and go beyond the scope of jurisdiction granted 

in the CAA § 307. To the contrary, Congress granted this court broad 

jurisdiction to hear challenges to “any other final action of the 

Administrator,” 42 U.S.C. § 7607(b)(1), which encompasses issues of 

state law involved in the EPA’s action. AIR is not required to exhaust 

state law remedies before it can petition this court for review of the 

EPA action.

 
18 ASS’N OF IRRITATED RESIDENTS V. EPA

ambiguous, and both the EPA and AIR provide permissible 

interpretations. In light of this ambiguity, it was 

appropriate and reasonable for the EPA to rely on the 

interpretations of the Attorney General and the California 

Air Resources Board (“CARB”) in its determination that 

SB 700 provided certain exemptions that were not 

accounted for in the 2004 NSR Rules. The EPA made a 

“rational connection” between the state officials’ 

interpretations, the purposes of the CAA, and the choice it 

made. See Burlington Truck Lines, 371 U.S. at 168.

The EPA insists that it made an error in its 2004 

approval because there was a substantive mismatch 

between the 2004 NSR Rules and state law, meaning that 

the EPA had failed to get the “necessary assurances” that 

the District had adequate “authority under State . . . law to 

carry out” the SIP. See 42 U.S.C. § 7410(a)(2)(E); see 

generally 78 Fed. Reg. 46,504 (Aug. 1, 2013). Both the 

EPA and AIR offer logical readings of the SB 700 

provisions at issue: the so-called Offset Provision and 

Savings Clauses. Because there is more than one plausible 

explanation, the wording of the statute is ambiguous. The 

EPA gave adequate consideration to the relevant factors, 

including the Attorney General’s interpretation, and arrived 

at a rational conclusion on SB 700’s meaning; therefore, 

the EPA’s error determination was not arbitrary or 

capricious.

Even so, because we conclude that the EPA considered the 

relevant factors and had a reasoned basis for concluding that SB 700 

conflicted with the 2004 NSR Rules, there is no need for us to go 

further and substantively interpret SB 700 for ourselves.

 
ASS’N OF IRRITATED RESIDENTS V. EPA 19

1. Interpretation of the Offset Provision

SB 700’s Offset Provision states:

A district may not require an agricultural 

source to obtain emissions offsets for criteria 

pollutants for that source if emissions 

reductions from that source would not meet 

the criteria for real, permanent, quantifiable, 

and enforceable emission reductions.

Cal. Health & Safety Code § 42301.18(c).

According to the EPA, the Offset Provision exempts 

minor agricultural sources from the emission offsets 

requirement because minor agricultural sources did not 

meet the statutory criteria during the time period that the 

2004 NSR Rules were in effect. See 75 Fed. Reg. 4,745, 

4,748 (Jan. 29, 2010). The minor sources did not meet the 

criteria because, according to the EPA, the Attorney 

General, and CARB, the words “real, permanent, 

quantifiable, and enforceable emission reductions” referred 

to the criteria for offset credit under the CAA. See

40 C.F.R. § 51.165(a)(3)(ii)(C)(1)(i) (to qualify for offset 

credit, emissions reductions must be “surplus, permanent, 

quantifiable, and federally enforceable”). Since minor 

agricultural sources were not determined to meet these 

criteria and were not eligible to receive offset credit for, or 

bank, their emission reductions, they were not required to 

purchase emissions offsets as an equitable matter. 78 Fed. 

Reg. at 46,510. This led the EPA to conclude that the 

Offset Provision did not grant the same authority to the 

District as the exemption-free 2004 NSR Rules did.

According to AIR, the plain meaning of the Offset 

Provision’s criteria requires agricultural sources to obtain 
20 ASS’N OF IRRITATED RESIDENTS V. EPA

offsets when their emission reductions are SIP creditable, 

not offset creditable. To support this contention, AIR 

compares the words of the Offset Provision to the CAA’s 

criteria for SIP credibility in the General Preamble for the 

Implementation of Title I of the CAA. See 57 Fed. Reg. 

13,498, 13,567–68 (Apr. 16, 1992) (suggesting principles 

for a SIP strategy that includes “quantifiable” emissions, 

“enforceable” measures, “replicable” measures, and an 

“accountable” control strategy). AIR then argues that since 

the EPA has approved SIP credit for emissions reductions 

by several types of minor agricultural sources, those minor 

agricultural sources meet the criteria of SB 700’s Offset 

Provision and are thus compatible with the 2004 District 

NSR Rules.

Because the listed criteria in the Offset Provision do not 

correspond precisely with either the requirements of SIP 

credibility or offset credibility, it is reasonable to interpret 

the provision as requiring either one or even both. Since 

the statute is ambiguous, as long as the EPA provides a 

plausible and rational explanation for why it chose 

interpretation X over interpretation Y, then the court must 

uphold the EPA’s decision. See Bowman Transp., Inc. v. 

Arkansas-Best Freight Sys., Inc., 419 U.S. 281, 286 (1974) 

(“[W]e will uphold a decision of less than ideal clarity if 

the agency’s path may reasonably be discerned.”).

In reaching its final rule, the EPA spent several years 

considering the issue of the interpretation of SB 700, issued 

multiple notices, and accepted and responded to several 

comments, but the EPA’s main source of support for its 

decision was the Attorney General’s and CARB’s letters 

interpreting the pertinent provisions of SB 700 in regard to 

minor agricultural sources. 78 Fed. Reg. at 46,506, 

46,509–10. Since the statute is ambiguous and technical, it 
ASS’N OF IRRITATED RESIDENTS V. EPA 21

was rational for the EPA to request and accept the Attorney 

General’s interpretation, especially since commenters, 

including AIR, had requested that the EPA obtain the 

Attorney General’s input. See 78 Fed. Reg. at 46,506. The 

Attorney General’s second letter in March 2013, which 

specifically addressed the application of the Offset 

Provision to minor agricultural sources, stated that these 

minor sources did not currently meet the criteria for “real, 

permanent, quantifiable and enforceable emission 

reductions,” so the statute “suspend[s] the duty of a minor 

agricultural source to offset emissions from that source.” 

Letter from Robert W. Byrne, Cal. Acting Sr. Asst. Attny. 

Gen. to Jared Blumenfeld, EPA Regional Administrator, 1 

(March 18, 2013). The letter stated that this position was 

consistent with a CARB letter written in 2008. Id. at 2.

The 2008 CARB letter is the source of the EPA’s 

argument that the Offset Provision’s “criteria” refer to 

offset credit, not just SIP credit, as AIR argues. 

Specifically the letter stated:

This limited exemption from the offset 

requirement means that agricultural sources 

that are not amenable to District prohibitory 

rules or control measures that would qualify 

for SIP credit—or that are unable to 

generate emission reductions that would 

qualify as offsets—because they fail to meet 

one or more of the basic criteria for a 

creditable rule or for offset credit cannot be 

required to provide offsets.

Letter from James Goldstene, Exec. Officer, CARB to Air 

Pollution Control Officers, 4 (Sept. 3, 2008) (emphasis 

added). This interpretation reveals that the Offset 

Provision’s criteria refer to both SIP creditability and offset 
22 ASS’N OF IRRITATED RESIDENTS V. EPA

creditability. The EPA addressed this reading in its final 

rule:

[T]he use of the conjunction “or” by CARB 

in its discussion of [the Offset Provision] . . . 

means that, under CARB’s interpretation, 

even if SIP credit were approved for 

prohibitory rules or control measures, new 

or modified minor agricultural sources could 

not be required to provide emission offsets if 

they are unable to generate emission 

reductions that would qualify as offsets.

78 Fed. Reg. at 46,510.

AIR argues that since the EPA had already approved 

SIP credit for emissions reductions by agricultural sources, 

it was arbitrary and capricious for the EPA to say those 

sources do not meet the criteria under the Offset Provision. 

AIR’s argument misses the point. Because the EPA 

understands that the Offset Provision refers to both SIPcredit and offset-credit requirements, it does not matter that 

the EPA approved some minor agricultural sources for SIP 

credit because those sources still do not meet the 

requirements for offset credit. According to the EPA, none 

of the sources mentioned by AIR receive offset credit for 

the emission reductions required by the SIP. Therefore, the 

EPA was not arbitrary or capricious in determining that the 

District lacked the power under state law to require offsets 

from minor agricultural sources from 2004–2010.

AIR argues that this court should not defer to the 

California Attorney General’s interpretation of SB 700, nor 

to CARB’s interpretation of the Offset Provision. If it were 

clear from the plain meaning of the statute that the EPA’s 

interpretation was erroneous or unreasonable, then it may 
ASS’N OF IRRITATED RESIDENTS V. EPA 23

well have been erroneous for the EPA to defer to a clearly 

wrong interpretation by the Attorney General. However, 

that is not the situation presented by the instant case.

AIR seeks to rely on two decisions of this court, which 

AIR states hold that this court does not have to defer to an 

Attorney General’s opinion on state law. See Maldonado v. 

Harris, 370 F.3d 945, 954 n. 5 (9th Cir. 2004); Virginia v. 

Am. Booksellers Ass’n, Inc., 484 U.S. 383, 395, certified 

question answered sub nom. Com. v. Am. Booksellers 

Ass’n, Inc., 372 S.E. 2d 618 (Va. 1988). However, both 

decisions concerned facial constitutional challenges to state 

statutes that necessitated direct judicial review of the 

statute, whereas the present case involves judicial review of 

an agency’s use of the California Attorney General’s and 

CARB’s informal interpretation of a state statute. See

Maldonado, 370 F.3d at 948 (involving First Amendment 

challenge to California Outdoor Advertising Act); Am. 

Booksellers Ass’n, Inc., 484 U.S. at 386 (interpreting the 

scope of a Virginia statute prohibiting display of explicit 

material in certain situations). Moreover, although the 

court is not bound by the California Attorney General’s 

opinion, the EPA may properly find an Attorney General’s 

interpretation reasonable and persuasive.

Other circuits have applied the arbitrary and capricious 

standard to the EPA’s reliance on an Attorney General’s or 

agency’s interpretation of an ambiguous state law. In Ohio 

Envtl. Council v. EPA, the Sixth Circuit held that the EPA’s 

reliance on the Ohio Attorney General’s interpretation of 

Ohio law was not arbitrary and capricious, particularly 

because the petitioner did not take its challenge to the Ohio 

state courts prior to the action. See 593 F.2d 24, 29 (6th Cir. 

1979). The Sixth Circuit also held that the EPA’s 

determination based on the Attorney General’s opinion was 
24 ASS’N OF IRRITATED RESIDENTS V. EPA

“clearly consistent with its secondary role” in forming SIPs 

under the CAA. Id.

Similarly, in Defenders of Wildlife v. EPA, the Tenth 

Circuit addressed the EPA’s reliance on a letter from New 

Mexico’s Water Quality Control Commission (“WQCC”) 

when interpreting an ambiguous New Mexico state 

regulation. 415 F.3d 1121, 1127–28 (10th Cir. 2005). The 

EPA based its approval of the regulation on WQCC’s 

interpretation. The Tenth Circuit held that the EPA was not 

arbitrary or capricious in doing so. See id. at 1128 (“[T]he 

EPA did not act arbitrarily and capriciously in approving 

the regulation, particularly since the agency reserved the 

right to revoke approval if New Mexico interpreted the 

regulation in the future in a way that would not comply 

with the [Clean Water Act].”).

In the instant case, the EPA’s reliance on the Attorney 

General’s and CARB’s letters to interpret the ambiguous 

provisions of SB 700 was not arbitrary, capricious, or 

unlawful.

2. Interpretation of the Savings Clauses 

The EPA and AIR interpret the Savings Clauses in SB 

700 differently and disagree on whether there was an error 

or mismatch that the EPA needed to correct. The Savings 

Clauses provisions state:

Any district rule or regulation affecting 

stationary sources on agricultural operations 

adopted on or before January 1, 2004, is 

applicable to an agricultural source.

Cal. Health & Safety Code § 39011.5(b).
ASS’N OF IRRITATED RESIDENTS V. EPA 25

Nothing in this section limits the authority 

of a district to regulate a source, including, 

but not limited to, a stationary source that is 

an agricultural source, over which it 

otherwise has jurisdiction pursuant to this 

division, or pursuant to the federal Clean Air 

Act . . . or any rules or regulations adopted 

pursuant to that act that were in effect on or 

before January 1, 2003 . . . .

Cal. Health & Safety Code § 39011.5(c).

According to AIR, the Savings Clauses provisions 

preserve the District’s authority to apply the 2004 District 

NSR Rules (adopted prior to January 1, 2004) to certain 

minor agricultural sources regardless of the meaning of the 

Offset Provision. AIR refers to the broad language of the 

Clauses and asks that the court adhere to their plain 

meaning.

The EPA proposes a more limited interpretation, 

contending that the provisions in the Savings Clauses do 

not override the provisions of SB 700 that exempt minor 

agricultural sources from air pollution controls. Nor, 

according to the EPA, do the Savings Clauses authorize the 

District’s 2004 NSR Rules. Instead they only serve to 

preserve the District’s authority to regulate sources that 

hadn’t previously been, but were now considered 

“agricultural” because of SB 700’s new definition6 for 

 6 The prior definition of agricultural source was “equipment used in 

agricultural operations in the growing of crops or the raising of fowl or 

animals.” Cal. Health & Safety Code § 42310(e) (1989) (emphasis 

 
26 ASS’N OF IRRITATED RESIDENTS V. EPA

agricultural sources.7 Moreover, section 39011.5(c) does 

not grant authority to enforce the 2004 NSR Rules. Even 

though the definitional section of SB 700 did not limit the 

District’s authority, other sections, such as the Offset 

Provision, might.

As was the case with the Offset Provision, the EPA’s 

determination that the Savings Clauses did not give the 

District overriding authority to enforce the 2004 NSR Rules 

was based on the California Attorney General’s 

interpretation in the 2012 letter. 78 Fed. Reg. at 46,508. 

The Attorney General stated that the Savings Clauses “do 

not authorize the Rules’ permit and offset requirements” 

because they were meant to be read in light of the 

definitional context of section 39011.5. Letter from Robert 

W. Byrne, Cal. Acting Sr. Asst. Attny. Gen. to Jared 

Blumenfeld, EPA Regional Administrator, 4 (November 

14, 2012).

Before the legislature passed SB 700, California law 

had provided an exemption to agricultural sources from all 

added). The definition included in SB 700 is a source “used in the 

production of crops, or the raising of fowl or animals located on 

contiguous property under common ownership or control” that is a 

“confined animal facility” or an “internal combustion engine” or a 

CAA Title V source. Cal. Health & Safety Code § 39011.5(a) 

(emphasis added).

 7 The Attorney General gives the example of production equipment, 

such as a stationary diesel engine, that would not have been considered 

an agricultural source before SB 700, but were regulated by the 

District. See Letter from Robert W. Byrne, Cal. Acting Sr. Asst. Attny. 

Gen. to Jared Blumenfeld, EPA Regional Administrator, 4 (November 

14, 2012).

 
ASS’N OF IRRITATED RESIDENTS V. EPA 27

New Source Review permitting requirements, but districts 

were allowed to adopt non-New Source Review emission 

rules of general application that applied to agricultural 

stationary sources. Id. Section 39011.5(b) was meant to 

preserve those rules only—not NSR rules. Id. The purpose 

was to “preserve[] and validate[] those existing equipmentgoverning regulations of general application that, without 

such a savings clause, might be construed as invalid 

because the regulated equipment was included as part of 

SB 700’s ‘agricultural sources’ [definition].” Id. This 

explanation is reasonable. If not limited to rule 

preservation, section 39011.5(b) would be granting districts 

new authority to apply NSR rules — authority that had 

previously not existed under California’s blanket 

exemption.

The Attorney General also interpreted section 

39011.5(c). Id. “[S]ubdivision (c) clarifies that section 

39011.5 itself does not limit a district’s existing authority, 

but subdivision (c) does not concern whether some other 

provision of SB 700 might limit a district’s authority.” Id. 

This explanation accounts for the statute as a whole. If the 

legislature intended for the Savings Clauses to allow the 

District to ignore the exemptions located elsewhere in SB 

700, then it would have said that a district’s prior authority 

was not limited by any section in the statute. For the same 

reasons set forth above regarding the Offset Provision, the 

court finds that the EPA reasonably relied on this 

interpretation from the Attorney General and was not 

arbitrary or capricious in deciding that it had made an error 

because it fully considered the effect of the Savings 

Clauses on the District’s authority under state law.
28 ASS’N OF IRRITATED RESIDENTS V. EPA

3. The EPA Reasonably Respected State Law

The EPA’s desire to correct its 2004 approval to make 

it align with state law is not an arbitrary one, considering 

the aims and structure of the CAA’s model of cooperative 

federalism. The CAA grants primary authority to the states 

to develop emission limits. Train v. Natural Res. Def. 

Council, 421 U.S. 60, 79 (1975). The EPA’s role under the 

CAA’s scheme is secondary. Id. Therefore, by trying to 

respect California’s statutory limits on air pollution 

controls, the EPA is properly considering the purpose and 

structure of the Act it is entrusted to enforce.

Before SB 700 was enacted, California’s law included a 

blanket exemption for all agricultural sources, both major 

and minor, from the NSR air pollution controls. See

75 Fed. Reg. 4745, 4747 (Jan. 29, 2010). This legislative 

background indicates that California may have wished to 

preserve some form of agricultural exemption in its laws 

and intended for that exemption to carry into the SIP. 

Therefore, the EPA’s interpretation of SB 700 and its 

decision to correct its 2004 approval were reasonable and 

pass arbitrary and capricious review.

In sum, this court holds that the EPA reasonably 

determined that California’s SB700 was inconsistent with 

the 2004 NSR rules. It was appropriate and reasonable for 

the EPA to rely on the interpretations of the Attorney 

General and CARB when determining that the ambiguous 

California law provided certain exemptions that were not 
ASS’N OF IRRITATED RESIDENTS V. EPA 29

accounted for in the 2004 NSR Rules.8 The EPA made a 

“rational connection” between the Attorney General’s and 

CARB’s interpretations, the purposes of the CAA, and the 

choice it made. Burlington Truck Lines, 371 U.S. at 168.

C. The EPA’s Authority Under § 110(k)(6) of the 

Clean Air Act

Concluding that the EPA reasonably decided it made an 

error that needed revising, we now address whether the 

EPA had the statutory authority to correct the error in the 

way that it did. Whether § 110(k)(6) of the CAA gives the 

EPA authority to retroactively revise the scope of an earlier 

approval of a state’s NSR Rules presents a question of first 

impression.

The Eleventh Circuit has previously considered the 

EPA action taken under § 110(k)(6), but it did not interpret 

the meaning of the provisions in question. Alabama Envtl. 

Council v. Adm’r, EPA, 711 F.3d 1277, 1289–90 (11th Cir. 

2013) (determining that the EPA had not made an error 

determination as required by the Act).

 8 AIR argues that even if the 2004 NSR Rules conflict with SB700, 

that conflict does not matter because once the 2004 NSR Rules were 

approved by the EPA in 2004, they became federal law trumping any 

inconsistent state law. It is true that when the EPA approves a SIP, it 

becomes federal law. See Safe Air for Everyone, 488 F.3d at 1097. 

But, AIR’s argument fails to address the relevant time period. The 

error at issue in this case is the EPA’s apparent failure to recognize that 

the 2004 NSR Rules conflicted with SB700 prior to the EPA’s issuing 

its May 2004 final approval of the Rules. See 78 Fed. Reg. at 46,505-

06. At that point in time, the 2004 NSR Rules had not yet been 

approved, and, thus, were not yet federal law.

 
30 ASS’N OF IRRITATED RESIDENTS V. EPA

Section 110(k)(6) reads:

Whenever the [EPA] determines that [its] 

action approving, disapproving, or 

promulgating any plan . . . was in error, the 

[EPA] may in the same manner as the 

approval, disapproval, or promulgation 

revise such action as appropriate without 

requiring further submissions from the State. 

Such determination and the basis thereof 

shall be provided to the State and public.

42 U.S.C. § 7410(k)(6) (emphasis added).

This broad provision was enacted to provide the EPA 

with an avenue to correct its own erroneous actions and 

grant the EPA the discretion to decide when to act pursuant 

to the provision. See Alabama Envtl. Council, 711 F.3d at 

1287 (“Through the use of the terms ‘whenever’ and ‘may,’ 

Section 110(k)(6) confers discretion on the EPA to decide 

if and when it will invoke the statute to revise a prior 

action.”); see also 75 Fed. Reg. 82,536, 82,543 (Dec. 30, 

2010) (discussing Congress’ implementation of § 110(k)(6) 

to overturn a Third Circuit decision that held that the EPA’s 

inherent authority to correct errors was narrow and could 

be used only to correct typographical errors, suggesting that 

Congress intended to grant the EPA broad authority to 

revise an error).

Pursuant to the statute, to correct an error, the EPA 

must first determine that it, in fact, made an error. 

42 U.S.C. § 7410(k)(6). The EPA clearly articulated its 

alleged error and the basis thereof in the Federal Register 

and even received and replied to comments on the matter. 

See, e.g., 78 Fed. Reg. at 46511. The EPA determined that 

it erred because it approved the 2004 NSR Rules even 
ASS’N OF IRRITATED RESIDENTS V. EPA 31

though it did not receive “necessary assurances” that 

California had authority to carry out the Rules as mandated 

by the CAA. See 42 U.S.C. § 7410(a)(2)(E). Therefore, 

this court concludes that the error determination 

requirement was met.

Having determined that it erred, the EPA is required by 

§ 110(k)(6) to “revise such action” (1) “in the same 

manner as the approval, disapproval, or promulgation,” and 

(2) “as appropriate without requiring further submissions 

from the State.” 42 U.S.C. § 7410(k)(6).

1. Interpretation of “in the same manner”

a. Chevron Step One

Under Chevron, the court must first look at the statutory 

language of § 110(k)(6) to determine whether Congress 

clearly designated “in the same manner” to be a procedural

requirement. That is, whether the EPA must revise its 

action by employing the same APA or CAA procedures 

used in the original rulemaking. See 78 Fed. Reg. at 

46,511. AIR contends that the words “in the same manner” 

limits the EPA’s actions to either an approval or a 

disapproval of a state-submitted plan since those were the 

only actions originally available to the EPA when presented 

with the SIP.

The words “in the same manner” refer to the EPA’s 

original action of “approving, disapproving, or 

promulgating any plan” that was taken in error. 42 U.S.C. 

§ 7410(k)(6). The statute itself does not clearly state 

whether “in the same manner” is a procedural or 

substantive requirement. Because Congress has not 

directly spoken to the issue at hand, the court will proceed 

to the second Chevron step.
32 ASS’N OF IRRITATED RESIDENTS V. EPA

b. Chevron Step Two

The EPA reasons that “in the same manner” refers to 

procedural processes when read in the context of the 

provision as a whole. See Gustafson v. Alloyd Co., Inc., 

513 U.S. 561, 575 (1995) (applying the principle that “a 

word is known by the company it keeps”). Specifically, the 

section authorizes the EPA to act “without requiring any 

further submission from the State” and requires it to 

provide the “determination and the basis thereof” of its 

error. 42 U.S.C. § 7410(k)(6). Both state submissions and 

“determination and the basis” are procedural requirements, 

lending support to the EPA’s procedural reading of “in the 

same manner.” The Supreme Court has also interpreted the 

phrase “in the same manner,” as it existed in the Affordable 

Care Act, as a procedural one. See Nat’l Federation of 

Indep. Bus. v. Sebelius, 132 S. Ct. 2566, 2583–84 (2012) 

(holding that the statute’s directive to assess a penalty “in 

the same manner” as taxes meant the Secretary of the 

Treasury should apply the “same ‘methodology and 

procedures’” used to collect taxes). The EPA has held to 

this interpretation of “in the same manner” for as long as it 

has applied § 110(k)(6). See 58 Fed. Reg. 49,254, 49,257 

(Sept. 22, 1993); see also Barnhart v. Walton, 535 U.S. 

212, 220 (2002) (declaring that the court “normally 

accord[s] particular deference to an agency interpretation of 

‘longstanding’ duration”).

This court determines that the EPA reasonably 

interpreted “in the same manner” as a procedural 

requirement. In this instance, the EPA acted through a 

notice-and-comment rulemaking, the same process used to 

approve the 2004 NSR Rules into the SIP. Therefore, the 

EPA did not exceed its authority under the CAA and its 
ASS’N OF IRRITATED RESIDENTS V. EPA 33

promulgation of 40 C.F.R. § 52.245 comported with the 

procedural requirements of § 110(k)(6).

2. Interpretation of “appropriate” 

a. Chevron Step One

The court must determine next whether § 110(k)(6) 

enables the EPA to revise an error by retroactively limiting 

the scope of its approval to cover only certain parts of the 

NSR Rules. In other words, was the EPA’s correction 

“appropriate” under the plain meaning of § 110(k)(6)?

The word “appropriate” “means only ‘specially 

suitable: fit, proper.’” Ruckleshaus v. Sierra Club, 

463 U.S. 680, 682 (1983) (quoting Webster’s Third 

International Dictionary). Section 110(k)(6) itself does not 

clearly define what is an “appropriate” action. Thus, this 

court concludes that the language does not directly speak to 

the matter at hand and will proceed to Chevron step two.

b. Chevron Step Two

As long as the EPA’s interpretation of “appropriate” is 

“based on a permissible construction of” § 110(k)(6), then 

the court must accept it. Chevron, 467 U.S. at 843.

AIR argues that § 110(k)(6) does not allow the EPA to 

“sua sponte promulgate a regulation that substantively 

amends or limits a SIP.” This reading, however, ignores 

the direction of § 110(k)(6) that the EPA revise its actions 

when an error has been made “without requiring any 

further submission from the State.” 42 U.S.C. 

§ 7410(k)(6). The plain meaning of these words indicates 

unilateral action by the EPA. While it is true that agencies 

do not have plenary authority in absence of congressional 
34 ASS’N OF IRRITATED RESIDENTS V. EPA

limitation, Louisiana Pub. Serv. Comm’n v. F.C.C., 476 

U.S. 355, 374 (1986) (“an agency literally has no power to 

act . . . unless and until Congress confers power upon it”), 

the Supreme Court has interpreted Congress’s command 

elsewhere to take “appropriate action” as giving an agency 

“a substantial amount of latitude in choosing the programs 

and techniques they would use to meet their obligations 

under the [statute].” Horne v. Flores, 557 U.S. 433, 440–41 

(2009) (quoting Castaneda v. Pickard, 648 F.2d 989, 1009 

(5th Cir. 1981)).

Under the circumstances of this case, the court finds 

that the EPA’s understanding of “appropriate” was 

permissible. First, the EPA’s interpretation of 

“appropriate” contemplated the goals and purposes of the 

CAA as a whole. See Richards v. United States, 369 U.S. 

1, 11 (1962) (affirming that “in fulfilling our responsibility 

in interpreting legislation, ‘we . . . (should) look to the 

provisions of the whole law, and to its object and policy’”). 

The EPA’s action preserves the “strengthening aspects” of 

the 2004 NSR Rules, which removed the total exemption 

for agricultural sources, while still ensuring that the SIP 

matches state law. See 78 Fed. Reg. 46,504, 46,511 (Aug. 

1, 2013). The EPA considered a complete retroactive 

disapproval of the 2004 NSR Rules, but determined it 

would have had a “deleterious effect” on the SIP by 

loosening the air pollution controls even further. Id. When 

faced with a choice between a narrower revision that serves 

to improve air quality and a broader one that undoes the 

progress made in the SIP, the EPA permissibly reasoned it 

was more appropriate to choose the former.

Second, the EPA’s method of correction is 

“appropriate” because it is the only method that would fix 

the unusual problem at issue here. See 78 Fed. Reg. at 
ASS’N OF IRRITATED RESIDENTS V. EPA 35

46,510. AIR argues that the only “appropriate” responses 

the EPA could take to correct its error are the ones 

provided in § 110(k), namely a partial approval/partial 

disapproval, a limited approval/limited disapproval, a 

conditional approval, a SIP Call, or a complete disapproval. 

See U.S.C. § 7410(k). The EPA demonstrates, however, 

why each of those options fails to correct the error in this 

specific instance.

Section 110(k)(3) authorizes the EPA to make a partial 

approval/partial disapproval if portions of the SIP do not 

comply with the CAA and are separable, but NSR Rules 

are not separable. 78 Fed. Reg. at 46,511. A limited 

approval/limited disapproval is similarly unsuitable 

because it would “incorporate the entire rule into the 

California SIP, and thus would not remedy the problem of 

the mismatch.” Id. at 46,510. A conditional approval under 

§ 110(k)(4) requires the state to correct deficiencies within 

a year, but as the EPA explains, even though California had 

corrected its deficiencies by submitting the new 2010 NSR 

Rules, this did nothing to correct its mistake retroactively. 

Likewise, a SIP Call requiring a state to submit a revision 

provides only a prospective, not a retroactive solution. See 

Alabama Envtl. Council, 711 F.3d at 1290 (distinguishing 

§ 110(k)(6) from a § 110(k)(5) SIP Call as an alternative 

way to revise a SIP).9

 9 AIR argues that just because a SIP Call does not facilitate the EPA’s 

desired retroactive outcome, does not mean it is inappropriate. But if 

an option is not “suitable” or “fit” to revise an erroneous action, then 

that option is not “appropriate” by the definition of the word. See 

Ruckleshaus, 463 U.S. at 682.

 
36 ASS’N OF IRRITATED RESIDENTS V. EPA

Perhaps most significantly, the EPA’s revision was 

“appropriate” because it respected state law. The CAA 

imposes a duty on the states to meet the standards for air 

quality through state control programs. 42 U.S.C. 

§ 7407(a). AIR argues that the EPA’s action violates the 

“Clean Air Act’s state-federal partnership” because it is 

stepping out of its role of a “regulatory backstop” to amend 

the SIP. However, California did not intend the 2004 NSR 

Rules to omit SB 700’s limited exemptions for minor 

agricultural sources. After AIR brought the citizen suits, 

California submitted amended District NSR Rules with the 

explicit limitations taken from SB 700. See 75 Fed. Reg. 

4745 (January 29, 2010). By revising its past approval to 

align with the intent of the state, the EPA did not impose its 

own policy choices on the state. Instead, the EPA 

appropriately respected California’s role as envisioned in 

the CAA.

This court determines that the EPA’s interpretation of 

§ 110(k)(6) prevails under the second step of Chevron

because it is reasonable that Congress, by amending the 

CAA to add § 110(k)(6), was providing the EPA with the 

authority to act in ways other than those enumerated in 

§ 110(k). The EPA has shown that its chosen method was 

a method – albeit not the only one – that enabled it to fix its 

mistake in light of the particular circumstances and goals of 

the CAA. Therefore, this court defers to its interpretation 

under the circumstances of the instant case.

III.Conclusion

As discussed herein, this court holds that the EPA did 

not abuse its discretion in correcting its prior approval of 

the 2004 NSR Rules. Its action was permissible in light of 

the fact that California law (SB 700) did not authorize the 

San Joaquin Air Control District to require permits for the 
ASS’N OF IRRITATED RESIDENTS V. EPA 37

agricultural sources involved here. Because those rules 

conflicted with state law, they should not have been 

incorporated into the State Implementation Plan in 2004. 

Moreover, the EPA properly acted to revise retroactively 

the scope of its approval of the 2004 NSR Rules.

The Petition for Review is DENIED.