author: BYBEE, Circuit Judge:

text:
    State of ARIZONA, EX REL. Henry R. DARWIN, Director, Arizona Department of Environmental Quality, Petitioner, v. U.S. ENVIRONMENTAL PROTECTION AGENCY; Scott Pruitt, Administrator, United States Environmental Protection Agency, Respondents. CalPortland Company, Petitioner, v. U.S. Environmental Protection Agency, Respondent. Phoenix Cement Company, an enterprise division of the Salt River Pima-Maricopa Indian Community, Petitioner, v. U.S. Environmental Protection Agency, Respondent. ASARCO LLC, Petitioner, v. U.S. Environmental Protection Agency, Respondent.
    No. 14-73368, No. 14-73384, No. 14-73386, No. 14-73394
    United States Court of Appeals, Ninth Circuit.
    Argued and Submitted June 21, 2016, San Francisco, California
    Filed April 3, 2017

      Carroll McGuffey III (argued) and Justin Wong, Troutman Sanders LLP, Atlanta, Georgia; Paul L. Gale, Troutman Sanders LLP, Irvine, California; Peter S. Glaser, Troutman Sanders LLP, Washington, D.C.; James T. Skardon, Assistant Attorney General, Environmental Enforcement Section; Mark Brnovich, Attorney General; Office of the Attorney General, Phoenix, Arizona; for Petitioner State of Arizona.
    Albert H. Acken (argued) and Fredric D. Bellamy, Ryley Carlock & Applewhite, Phoenix, Arizona, for Petitioner CalPort-land Company.
    Mark W. DeLaquil (argued) and Andrew M. Grossman, Baker & Hostetler LLP, Washington, D.C.; George A. Tsiolis, En-glewood, New Jersey; for Petitioner Phoenix Cement Company.
    Eric L. Hiser (argued) and Trevor J.L. Burggraff, Jorden Bischoff & Hiser PLC, Scottsdale, Arizona; George A. Tsiolis, En-glewood, New Jersey; for Petitioner AS-ARCO LLC.
    Samara M. Spence (argued), Trial Attorney; John C. Cruden, Assistant Attorney General; Environment and Natural Resources Division, United States Department of Justice, Washington, D.C.; Matthew C. Marks and M. Lea Anderson, EPA Office of General Counsel, Washington, D.C.; Charlotte Withey, EPA Office of Regional Counsel, Region IX, San Francisco, California; for Respondents.
    Before: MARSHA S. BERZON, JAY S. BYBEE, and JOHN B. OWENS, Circuit Judges.
   OPINION

BYBEE, Circuit Judge:

In the late 1970s, Congress declared it a “national goal” to improve air visibility in federal parks and forests. 42 U.S.C. § 7491(a)(1); see also 40 C.F.R. § 81.400 et seq. (listing all national parks, national monuments, and wilderness areas Congress sought to protect). To achieve that goal, Congress sought to reduce emissions of various pollutants through a new regulatory scheme codified in Section 169A of the Clean Air Act (CAA). 42 U.S.C. § 7491(b). That scheme required each state with emissions impacting protected federal lands to create a State Implementation Plan (SIP) describing how the state intended to make reasonable progress toward the national visibility goal. Id. §§ 7410(a), 7491(b)(2). If the state submitted either a deficient SIP or none at all, the CAA required the EPA to promulgate its own plan — called a Federal Implementation Plan (FIP) — to force compliance with Congress’s mandate. Id. § 7410(c)(1).

This extensive litigation arose when Arizona — a state containing twelve wilderness areas subject to Section 169A, see 40 C.F.R. § 81.403 — clashed with the EPA over its SIP submitted in 2011. Although the SIP listed proposals to manage and reduce emissions from various industrial sources operated within the state, the EPA determined that Arizona could do better in improving visibility. The EPA disapproved certain aspects of Arizona’s SIP and issued its own FIP that imposed enhanced emission-control measures.

The EPA’s actions spawned a series of legal challenges from Arizona and several private companies subject to EPA regulation (collectively, Petitioners). We have rejected most of those challenges in two prior decisions, concluding that the EPA acted within its authority when it disapproved portions of Arizona’s SIP that it deemed problematic. Arizona ex rel. Darwin v. EPA (Arizona I), 815 F.3d 519, 524 (9th Cir. 2016); Phoenix Cement Co. v. EPA, 647 Fed.Appx. 702, 704-05 (9th Cir. 2016). All that remains before us now are Petitioners’ objections to several sections of the EPA’s most recent FIP — those issued to replace certain rejected portions of Arizona’s SIP — which Petitioners , claim constitute invalid agency action.

We hold that several of Petitioners’ objections to the FIP are not properly before us because they were not first presented to the EPA during the notice-and-comment period. See 42 U.S.C. § 7607(d)(7)(B) (“Only an objection to a rule or procedure which was raised with reasonable specificity during the period for public comment (including any public hearing) may be raised during judicial review.”). As to the remaining objections that are ripe for our consideration, we conclude that the EPA’s emission-control measures are not arbitrary or capricious and thus constitute valid agency rulemak-ing. Accordingly, we dismiss in part and deny in part the consolidated petitions for review.

I. REGULATORY BACKGROUND

In the twentieth century, our nation experienced a significant degradation of visibility in its most treasured wilderness areas. See Regional Haze Regulations, 64 Fed. Reg. 35,714, 35,715 (July 1, 1999). The air pollution, Congress found, was “primarily” due to the emission of “[sulfur dioxide], oxides of nitrogen, and particulate matter” from poorly regulated industrial sources. Id. (citing H.R. Rep. No. 95-294, at 204 (1977)). To tackle the problem, Congress adopted Section 169A of the CAA, and the EPA promulgated implementing regulations to require states to improve visibility by adopting certain emission controls. 42 U.S.C. § 7491(b)(2). Two categories of such emission controls are relevant to the issues before us: “best available retrofit technology” (BART) and what the EPA sometimes refers to as “reasonable progress” (RP) controls. 42 U.S.C. § 7491(b)(2)(A)-(B), (g)(1)-(2); 40 C.F.R. § 51.308(f)(3); Promulgation of Air Quality Implementation Plans; Arizona; Regional Haze and Interstate Visibility Transport Federal Implementation Plan, 79 Fed. Reg. 52,420, 52,447, 52,463 (Sept. 3, 2014) [hereinafter Final FIP].

A. Best Available Retrofit Technology

BART is a term of art used to describe technology that can be installed on an industrial source to control its emissions or make those emissions cleaner. 42 U.S.C. § 7491(b)(2)(A), (g)(2). Congress directed BART to be implemented on older stationary sources that “emit[ ] any air pollutant which may reasonably be anticipated to cause or contribute to any impairment of visibility” in protected federal lands. Id. § 7491(b)(2)(A); see also 40 C.F.R. § 51.301 (defining a “BART-eligible source” as an “existing stationary facility” built between 1962 and 1977 that “has the potential to emit 250 tons per year or more of any air pollutant”). If there are such sources within a regulated state, the state must not only “submit an implementation plan containing emission limitations representing BART,” 40 C.F.R. § 51.308(e), but do so for each pollutant those sources emit, id. § 51.301.

In determining the appropriate BART to install, states must engage in a cost-benefit analysis by balancing five factors: “[1] the costs of compliance, [2] the energy and non-air quality environmental impacts of compliance, [3] any existing pollution control technology in use at the source, [4] the remaining useful life of the source, and [5] the degree of improvement in visibility which. may reasonably be anticipated to result from the use of such technology.” 42 U.S.C. § 7491(g)(2). Because the balancing is source specific, it could lead a state to adopt stringent BART regulations, none at all, or something in between. See Final FIP, 79 Fed. Reg. at 52,447 (recognizing that cost-benefit analyses could reasonably lead to various degrees of BART regulations). If the EPA is dissatisfied with a state’s BART determination, it can issue a FIP containing its own cost-benefit analysis in accordance with Section 169A. 42 U.S.C. § 7410(c)(1).

B. Reasonable Progress Controls

Similar to BART, RP controls serve to limit emissions of harmful pollutants that degrade visibility in protected wilderness areas. Although RP controls, as such, are not mentioned in Section 169A, they are an outgrowth of Congress’s mandate to make “reasonable progress toward meeting the national [visibility] goal.” 42 U.S.C. § 7491(b)(2). The EPA has construed that mandate as requiring each regulated state to establish reasonable progress goals (RPGs) that depend on how much of that state’s current haze would have to be eliminated each year to achieve natural, pristine conditions by the year 2064. 40 C.F.R. § 51.308(d)(1)(i)(B). If a state believes that it is unable to conform with the year-to-year reduction rate—or the “glidepath,” as it is known in regulatory nomenclature— its SIP must explain why achieving the rate is not reasonable, while its proposed RPGs are. Id. § 51.308(d)(1)(ii).

After a state calculates its RPGs, it must determine whether to implement RP controls to reach those RPGs. See id. § 51.308(d). In making that determination, the state may take into account existing control measures — including BART — as well as the visibility impact of controls established through other programs under the CAA. See id. § 51.308(d)(1). If the existing control measures do not cut it, the state must consider four factors to determine whether additional measures are warranted: “[1] the costs of compliance, [2] the time necessary for compliance, and [3] the energy and non-air quality environmental impacts of compliance, and [4] the remaining useful life of any existing source subject to such requirements.” 42 U.S.C. § 7491(g)(1); see also 40 C.F.R. § 51.308(d)(1)(i)(A). Should a state fail to conduct an accurate balancing, the EPA can correct the state’s errors in a FIP. 40 C.F.R. § 51.308(d)(1)(v); see also 42 U.S.C. § 7410(c)(1).

One characteristic of RP controls is worth emphasizing: they apply not just to some but to all pollutant-emitting stationary sources that impede reasonable progress. Take, for instance, a cement kiln emitting sulfur dioxide built in 1983. Although the kiln would not be subject to BART regulation because it was not in existence as of 1977, see 42 U.S.C. § 7491(b)(2)(A), it might nonetheless be required to adopt additional measures because limiting its pollution would help its home state achieve RPGs. In essence, then, RP controls fill a regulatory gap that would have existed if the EPA were not able to regulate BART-ineligible cement kilns, smelters, and other emission sources threatening to deteriorate visibility.

II. PROCEDURAL BACKGROUND

In 2011, Arizona submitted a SIP to the EPA outlining its RPGs and describing the steps it intended to take to limit air pollution within its state. See Arizona I, 815 F.3d at 528. The EPA deemed several portions of Arizona’s SIP inadequate and issued a FIP to correct what it perceived to be Arizona’s noncompliance with Section 169A and related regulations. Id. at 529; Phoenix Cement, 647 Fed.Appx. at 705-06. Because the validity of that FIP is the primary issue in this action, we first outline the steps the EPA took in preparing that document.

A. The Proposed FIP

The portions of Arizona’s SIP that the EPA rejected consisted of “BART control analyses and determinations” for multiple stationary sources, RPG “analyses and determinations,” and long-term strategies for “making reasonable progress.” See Promulgation of Air Quality Implementation Plans; Arizona; Regional Haze and Interstate Visibility Transport Federal Implementation Plan; Proposed Rules, 79 Fed. Reg. 9318, 9320 (Feb. 18, 2014) [hereinafter Proposed FIP]. Here is what the EPA proposed, in relevant part, to replace those rejected sections:

1.Reasonable Progress Goals

In a short, narrative section, the EPA proposed a set of RPGs “consistent with a combination of control measures that include those in the approved [portions of Arizona’s] SIP as well as [the Proposed] FIP.” Id. at 9321. The EPA did not express those RPGs numerically, explaining that although it “would prefer to quantify these proposed RPGs,” it lacked “sufficient time and resources” to do so. Id. at 9363. Instead, the EPA simply noted that “[i]n total, these final and proposed controls to meet the BART and RP requirements will result in higher emissions reductions and commensurate visibility improvements beyond what was in [Arizona]’s plan.” Id.

2. CalPortland’s Cement Kiln

The EPA next considered whether Cal-Portland’s cement kiln should be subject to additional RP controls. Id. at 9351. Although Arizona had identified that kiln as a source that might contribute to visibility impairment, it failed to conduct the requisite four-factor analysis in its SIP. See Approval and Disapproval of Air Quality State Implementation Plans; Arizona; Regional Haze and Interstate Transport Requirements, 78 Fed. Reg. 46,142, 46,168-69, 46,171 (July 30, 2013). The EPA therefore balanced the four factors itself and proposed that CalPortland install an emissions-control technology called “selective non-catalytie reduction” (SNCR) with a “50 percent SNCR control-efficiency.” Proposed FIP, 79 Fed. Reg. at 9354-56. The EPA sought comment, however, on “whether a different SNCR control efficiency is appropriate.” Id. at 9355.

3. Copper Smelters

The EPA also discussed limiting emissions from Petitioner Asarco’s and non-party Freeport-McMoran, Ine.’s copper smelters. Id. at 9318, 9320. Because both smelters are subject to BART controls, the EPA considered whether to impose BART to reduce emissions of nitrogen oxides (an issue applicable to both smelters on this appeal) as well as particulate matter and sulfur dioxide (an issue applicable only to Asarco’s smelter). Id. at 9320-21. Since the EPA had rejected Arizona’s BART analysis, it engaged in its own balancing of the five factors listed in Section 169A. Id.

Here is what the EPA proposed. As to nitrogen oxides emissions, the EPA determined that the estimated level of visibility improvement from additional BART controls was not worth the cost. Id. The EPA therefore proposed only an annual emission limit of 40 tons per year (tpy) which it found to be “consistent with current emissions” of nitrogen oxides from the smelters. Id. at 9320. Such measures were presumably necessary to ensure that the copper smelters would not drastically increase their emissions beyond 40 tpy after the FIP were finalized.

As to particulate matter emissions, the EPA proposed a similar scheme to regulate Asarco’s smelter. Id. Because Asarco had been already implementing BART to control those emissions in accordance with another program under the CAA, the EPA determined that it made most sense to set an emission limit consistent with that program. Id. The EPA therefore proposed to “incorporate emission limitations and associated compliance requirements from the National Emission Standard for Hazardous Air Pollutants (NESHAP) for Primary Copper Smelting at 40 CFR Part 63, Sub-part QQQ [hereinafter Subpart QQQ].” Id.

Finally, the EPA addressed sulfur dioxide emissions from Asarco’s smelter. The EPA conducted the required five-factor analysis, considered available options, and proposed a technology — a “double contact acid plant” — that Asarco had been already using. Id. at 9343-44. To determine what emission limit to impose, the EPA relied on Asarco’s written representation that its technology could capture 99.8 percent of the sulfur dioxide vented to it. Id. at 9344. The EPA thus proposed “a control efficiency of about 99.8 percent on a 30-day rolling average.” Id. at 9343.

4. Affirmative Defense for Malfunctions

Finally, the EPA included an “affirmative defense for malfunctions” in the proposed regulations appended to the narrative section of the Proposed FIP. See id. at 9367, 9373 (proposing 40 C.F.R. § 52.145(k)(11), a regulation titled “Affirmative defense for malfunctions” that incorporated certain provisions of Arizona’s Administrative Code excusing excess emissions due to malfunctions at CalPortland’s kiln); id. at 9367, 9375 (proposing 40 C.F.R. § 52.145C )(14), a similar regulation excusing excess emissions due to malfunctions at Asarco’s smelter). Nowhere in its Proposed FIP did the EPA mention that it was considering deleting this affirmative defense in the Final FIP.

B. The EPA’s Final FIP

After notice and comment, the EPA promulgated its Final FIP that differed from the earlier proposal in several important respects.

1. Reasonable Progress Goals

In response to several comments criticizing the EPA’s decision to express RPGs qualitatively rather than quantitatively, the EPA reversed its course and promulgated a set of numerical goals. Final FIP, 79 Fed. Reg. at 52,468-71. Those new RPGs were then compared to the RPGs outlined in Arizona’s rejected SIP to devise something called a “FIP effect,” or the increase in visibility between the effects of controls mandated by Arizona’s SIP and those promulgated by EPA’s Final FIP. Id. at 52,469-70. The FIP effects at the various protected areas in Arizona generally came in at about 0.10 deciviews. Id.

2. CalPortland’s Cement Kiln

During the notice-and-comment period, CalPortland objected to the Proposed FIP’s imposition of a 50 percent control efficiency using SNCR and asserted that only “35 percent control efficiency may be achievable.” Id. at 52,462. The EPA accepted CalPortland’s argument and agreed that “35 percent reflects an appropriate estimate of the degree of control achievable with SNCR at [CalPortland’s kiln].” Id at 52,463. It therefore revised its proposed regulation and imposed a 35 percent control efficiency.

3. Copper Smelters

With a few tweaks, the Final FIP largely repeated the BART measures set forth in the Proposed FIP. As to nitrogen oxides emissions, the EPA rejected Arizona’s contention that facilities emitting fewer than 40 tpy — like Asarco’s and Freeport-McMo-ran’s copper smelters — should be excluded from mandatory BART regulations under 40 C.F.R. § 51.308(e)(1)(ii)(C). See id. at 52,445. The EPA explained that even though the smelters were not currently emitting more than 40 tpy, there were no “federally enforceable physical or operational limitations that would” cap its ability to emit more than 40 tpy in the future. Id. at 52,445-46. If the rule were otherwise, the EPA pointed out, “emissions could increase to a level where additional controls would be warranted for BART, but no mechanism would exist to require such controls.” Id. at 52,446.

As to particulate matter emissions, the EPA finalized its proposal to import limitations from Subpart QQQ. Id. at 52,447-48. Although Asarco asserted that its particulate matter controls were not based on the requirements of Subpart QQQ, the EPA quoted Asarco’s direct statements to the contrary. Id. “Given that [Asarco] relied on the Subpart QQQ requirements,” the EPA reasoned, inclusion of “these requirements in the FIP” was appropriate. Id. at 52,448.

The EPA was equally unpersuaded by Asarco and Arizona’s arguments against the proposed sulfur dioxide limitations. The concerns “over the technical feasibility” of the proposed double contact acid plant were unsubstantiated, the EPA determined, because such a plant “[was] already in use at [Asarco’s] Smelter” and was therefore “presumed to be an applicable technology.” Id. at 52,441. The EPA did, however, revise the time period over which the control efficiency rate would be calculated, crediting Asarco’s assertion that the 99.8% figure it had provided to the EPA could be achieved using only a 365-day rolling average rather than the 30-day average promulgated in the Proposed FIP. Id. at 52,443. Switching to the 365-day rolling average, the EPA continued, would also alleviate Asarco’s worry that the 99.8% control efficiency figure would not allow sufficient breathing room for “startup, shutdown, and malfunction,” or SSM, occurrences. Id. at 52,440, 52,443.

4.' Affirmative Defense for Malfunctions

The Final FIP eliminated the affirmative defense for “excess emissions due to malfunctions” that the EPA had inserted into the Proposed FIP. Id. at 52,427. The EPA recognized that it did “not receive any comments” about the inclusion of an affirmative defense, but explained that a recent D.C. Circuit opinion in Natural Resources Defense Council v. EPA, 749 F.3d 1055 (D.C. Cir. 2014), “ma[de] it clear that the CAA does not authorize promulgation of [an affirmative defense provision] by EPA.” Id. The EPA noted that the “court did not address whether such an affirmative defense provision could be properly included in a SIP,” but nonetheless maintained that the “logic of the court’s decision” foreclosed the EPA’s inclusion of the defense in its Final FIP. Id.

After the EPA promulgated the Final FIP, Arizona, Phoenix Cement Company, CalPortland, and Asarco filed this consolidated appeal.

III. STANDARD OF REVIEW

We may invalidate the Final FIP if it is “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” 42 U.S.C. § 7607(d)(9). This familiar standard is, of course, highly deferential. A regulation should be deemed arbitrary and capricious in only limited circumstances, such as when:

[T]he 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 implausible that it could not be ascribed to a difference in view or the product of agency expertise.

Motor Vehicle Mfrs. Ass’n of U.S., Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43, 103 S.Ct. 2856, 77 L.Ed.2d 443 (1983). Courts must be particularly careful in reviewing questions involving “a high level of technical expertise” because such matters are normally best left to the experience and judgment of the agency. Nat’l Parks Conservation Ass’n v. EPA, 788 F.3d 1134, 1141 (9th Cir. 2015) (citation omitted); see also Baltimore Gas & Elec. Co. v. Nat. Res. Def. Council, Inc., 462 U.S. 87, 103, 103 S.Ct. 2246, 76 L.Ed.2d 437 (1983) (“When examining [an agency’s] scientific determination, as opposed to simple findings of fact, a reviewing court must generally be at its most deferential.”).

When the challenge to a regulation is based on an alleged procedural error, our standard of review under the CAA is even stricter. Not only must the petitioners in such circumstances demonstrate that the rule was arbitrary or capricious, but also that the alleged procedural errors “were so serious and related to matters of such central relevance that there is a substantial likelihood that the rule would have been significantly changed if such errors had not been made.” 42 U.S.C. § 7607(d)(8).

IV. DISCUSSION

Petitioners make a wide variety of contentions that challenge four aspects of the Final FIP: (1) the promulgation of numerical RPGs; (2) the imposition of SNCR to control CalPortland’s cement kiln; (3) the emission limits regulating Asareo’s and Freeport-McMoran’s copper smelters; and (4) the decision to eliminate the affirmative defense for malfunctions. As we discuss below, all arguments falling into the first and last of those categories are not properly before us because they have not been presented to the EPA. And as to the remaining contentions, nothing about the EPA’s regulations of the cement kilns and copper smelters was arbitrary or capricious.

A. Judicial Challenges to a FIP Must be First Exhausted Before the EPA

Using perhaps the most unambiguous language possible, Congress has limited judicial review of EPA rules by requiring all potential petitioners to present their challenges first to the EPA itself. 42 U.S.C. § 7607(d)(7)(B). “Only an objection to a rule or procedure which was raised with reasonable specificity during the period for public comment,” Congress provided, “may be raised during judicial review.” Id. “[I]f the grounds for such an objection arose after the period for public comment (but within the time specified for judicial review), and if such objection is of central relevance to the outcome of the rule, [the EPA] shall convene a proceeding for reconsideration of the rule.” Id. And if the EPA declines to do so, the potential petitioner may “seek review of such refusal in the United States court of appeals for the appropriate circuit.” Id.

This congressional framework promotes regulatory efficiency by ensuring that the EPA — as the entity with greatest expertise in environmental matters — takes the first shot at resolving all issues with its regulations. The potential efficiency gains are not merely theoretical, and one need not look further than this case to see why. One of the original issues the parties briefed and argued before us concerned certain “demonstration requirements” the EPA imposed on Phoenix Cement and Cal-Portland. See supra note 4. Although the issue was both difficult and technical, Petitioners had not raised it to the EPA during the -notice-and-comment period because the demonstration requirements were not mentioned anywhere in the Proposed FIP. Fortunately, Petitioners requested the EPA to reconsider the rule, see 42 U.S.C. § 7607(d)(7)(B), and the EPA agreed to replace it with mutually acceptable regulations. See supra, note 4. By following the exhaustion rules and presenting their grievances to the entity most capable of resolving them, Petitioners avoided wasting both our resources and their own.

But the same cannot be said of two other claims Petitioners make on this appeal. For the first of those claims, Petitioners argue that the EPA’s RPGs are arbitrary and capricious because Arizona residents will directly or indirectly have to pay hundreds of millions of dollars to improve air visibility by 0.10 deciviews, an amount of improvement Petitioners dub trivial. In their second claim, they assert that the EPA’s decision to eliminate the affirmative defense for malfunctions was both procedurally and substantively invalid. We may not consider either of those claims under § 7607(d)(7)(B). Nothing in the record indicates that Petitioners have raised their arguments before the EPA at all, let alone with the requisite “reasonable specificity.” See 42 U.S.C. § 7607(d)(7)(B).

Petitioners concede as much with respect to their claim seeking to reinstate the affirmative defense for malfunctions. Indeed, Petitioners must concede that they could not have protested in their comments on the Proposed FIP the EPA’s decision to eliminate the affirmative defense provision from its proposal, because the EPA removed it spontaneously. The EPA had, in the Proposed FIP, proposed including the affirmative defense, not removing it, so it is no wonder that Petitioners did not file comments objecting to its removal. Nevertheless, the CAA is clear: the Petitioners’ remedy is to explain to the EPA “that it was impracticable to raise such an objection” and ask the EPA to “convene a proceeding for reconsideration of the rule.” 42 U.S.C. § 7607(d)(7)(B).

With respect to Petitioners’ new-found objections to the RPGs, Petitioners claim that certain statements during the notice-and-comment period put the EPA on notice of their arguments. We find that assertion not only wrong but close to frivolous. It was simply not possible to point out any disparities between the costs and benefits of the Final FIP’s numerical RPGs during the notice-and-comment period because no numerical RPGs were in existence at that time. Commentators never made any cost/benefit argument but instead urged the EPA to issue numerical RPGs in the first place. See Final FIP, 79 Fed. Reg. at 52,468-71. That commentary — on which Petitioners now rely to avoid the exhaustion requirement — could not have possibly apprised the EPA of the claim Petitioners now make.

Faced with this reality, Petitioners make two arguments — one doctrinal, the other policy-based — in an attempt to save them unexhausted claims from dismissal. Neither of the arguments, however, has merit. First, Petitioners rely on a line of cases from the D.C. Circuit finding an exception to § 7607(d)(7)(B) when a new argument challenges “key assumptions” underlying an EPA rule. This exception is usually stated as follows:

[EJven if a party may be deemed not to have raised a particular argument before the agency, “EPA ‘retains a duty to examine key assumptions as part of its affirmative burden of promulgating and explaining a nonarbitrary, non-capricious rule’ ” and therefore “ ‘EPA must justify that assumption even if no one objects to it during the comment period.’ ”

Nat. Res. Def. Council v. EPA, 755 F.3d 1010, 1023 (D.C. Cir. 2014) (citation omitted). The asserted duty to examine “key assumptions” has no textual origin. It appears to be based on a statement by the D.C. Circuit in a case that does not mention § 7607(d)(7)(B). See Nat’l Lime Ass’n v. EPA, 627 F.2d 416, 433 (D.C. Cir. 1980) (“[W]e think an initial burden of promulgating and explaining a non-arbitrary, non-capricious rule rests with the Agency....”); see also Small Refiner Lead Phase-Down Task Force v. EPA, 705 F.2d 506, 534 (D.C. Cir. 1983) (establishing for what appears to be the first time the exception to § 7607(d)(7)(B) based on the language in National Lime).

We need not decide today whether to adopt the D.C. Circuit’s exception to § 7607(d)(7)(B) exhaustion requirement. For even if the exception were available, we would hold that striking a particular balance between costs and benefits of numerical RPGs cannot be a “key assumption” underlying the Final FIP. As the D.C. Circuit has explained, the primary purpose of § 7607(d)(7)(B) is to ensure that the EPA has an opportunity to consider a challenge to its regulations without being “sandbagfged]” by litigants who wait until litigation before a court of appeals to make their arguments. Okla. Dep’t of Envtl. Quality v. EPA, 740 F.3d 185, 192 (D.C. Cir. 2014). Whether a particular eost/benefit analysis results in an appropriate RPG concerns not a “key assumption” but a contest to the EPA’s specific application of statutory precepts to a concrete situation. We hold that the issues Petitioners have raised for the first time on this appeal are not so “key” that, assuming the D.C. Circuit’s “key assumption” exception applies, they must have been anticipated by the EPA.

Petitioners next argue that it would be “absurd” if their claims, which are partially based on the EPA’s failure to provide notice of the numerical RPGs, were barred under § 7607(d)(7)(B). If that were so, Petitioners continue, the EPA could promulgate a FIP without the requisite notice- and-comment period and then regulate unsuspecting parties while they scramble to file a request for reconsideration with the EPA. See 42 U.S.C. § 7607(d)(7)(B) (“[Reconsideration shall not postpone the effectiveness of the rule.”). And although the “effectiveness of the rule may be stayed [for three months] during such reconsideration,” id. Petitioners claim that it could be years until the EPA acts on a reconsideration request.

Petitioners’ pleas have some appeal. However, we cannot ignore the unambiguous language of § 7607(d)(7)(B) simply because it might sometimes lead to what we regard as suboptimal results. Indeed, it is far from clear that Congress intended to carve out a special exception for claims asserting a deficiency in the notice-and-comment process. Congress could have just as easily determined that the benefits from the exhaustion requirement, combined with the right to ask a court for a three-month stay during the administrative reconsideration period, would outweigh the harm Petitioners identify. Such a conclusion would make sense, as the notice- and-comment process itself can lead to changes from the proposed FIP as to which there was no opportunity to comment. The EPA is not limited to specific changes suggested by commenters, and one commenter does not necessarily have the opportunity (or the resources) to comment on every other commenter’s proposals. Were the EPA required to put out for notice-and-comment every significant change from the proposed FIP to the final FIP, the notice-and-comment process could go on forever.

The words of § 7607(d)(7)(B) must be therefore read literally, as our sister circuits have concluded. See EME Homer City Generation, L.P. v. EPA, 795 F.3d 118, 137 (D.C. Cir. 2015) (“Because [petitioners’] argument is an objection to the notice and comment process itself, petitioners obviously did not and could not have raised it during the period for public comment. Under Subsection 7607(d)(7)(B), however, the only appropriate path for petitioners to raise this issue is through an initial petition for reconsideration to EPA.”); North Dakota v. EPA, 730 F.3d 750, 770 (8th Cir. 2013) (same); Oklahoma v. EPA, 723 F.3d 1201, 1214 (10th Cir. 2013) (same).

In sum, we conclude that Petitioners are barred from challenging in this appeal the numerical RPGs and the EPA’s decision to jettison the affirmative defense for malfunction. To overcome this procedural bar, Petitioners must first request the EPA to reconsider its regulations under § 7607(d)(7)(B). We are barred from reviewing these issues in this proceeding and dismiss that portion of the petition.

B. EPA Regulation of the Cement Kiln and Copper Smelters Is Valid

Petitioners’ remaining contentions are a series of technical challenges to the emission controls imposed on the cement kiln and copper smelters involved in this action. According due deference to the EPA, we see nothing arbitrary or capricious in its final regulations.

1. CalPortland’s Cement Kiln

Petitioners claim that the EPA overstepped its authority in imposing the SNCR controls on CalPortland’s cement kiln. The EPA’s primary error, Petitioners assert, was to “deemphasize” potential improvement in visibility when considering whether to implement an RP control using the four-factor balancing test of Section 169A. See 42 U.S.C. § 7491(g)(1). If the EPA had not committed that alleged error, Petitioners continue, it would have realized that adopting SNCR technology would only marginally advance RPGs. Petitioners therefore urge us to deem the EPA’s actions arbitrary or capricious.

We decline to do so. As required under Section 169A, the EPA considered all four factors before promulgating the FIP: (1) costs of compliance; (2) time necessary for compliance; (3) energy and non-air quality environmental impacts of compliance; and (4) the remaining useful life of any potentially affected sources. Final FIP, 79 Fed. Reg. at 52,466; see 42 U.S.C. § 7491(b)(2). Although “visibility improvement” is not among the four factors, the EPA took it into account anyway but did not weigh it as heavily as it would have in a BART analysis. Final FIP, 79 Fed. Reg. at 52,466. Although Petitioners may not like that the EPA accorded some factors greater weight than others, it is simply not our place to substitute our judgment for that of the EPA. See Cent. Ariz. Water Conservation Dist. v. EPA, 990 F.2d 1531, 1543 (9th Cir. 1993) (“Petitioners’ essential argument does not claim that EPA failed to consider the relevant factors, but instead contends that EPA erred in its consideration of those factors. This court is not to substitute Petitioners’ judgment, or its own, for that of EPA, as long as the agency’s interpretation is reasonable.”). That is especially so here, where the CAA calls for a functional balancing of technical and difficult considerations. See New York v. Reilly, 969 F.2d 1147, 1150 (D.C. Cir. 1992) (“Because Congress did not assign the specific weight the [EPA] should accord each of these factors, the [EPA] is free to exercise [its] discretion in this area.”).

Equally dubious is Petitioners’ contention that SNCR technology is not necessary to achieve RPGs because it would purportedly improve visibility by only 0.004 deciviews. But that is true only if we also take into account improvements from numerous other sources located in the same geographic area. See 79 Fed. Reg. at 52,469. If the impact of the SNCR technology at the CalPortland cement kiln were measured according to the EPA’s model that disregards other polluting sources, the increase in visibility would be far more substantial, measuring at 0.59 deciviews. Id. at 52,465. We do not view the EPA’s use of its model to calculate the benefits of SNCR as arbitrary or capricious but instead regard it as a permissible exercise of agency discretion within the proper bounds of the CAA. See North Dakota, 730 F.3d at 766 (reaching the same result and crediting the EPA’s assertion that the use of the Petitioners’ model would “rarely if ever demonstrate that emissions reductions at a single source will have an appreciable effect on incremental visibility improvement in a given area”).

Accordingly, we conclude that the EPA acted within its authority in promulgating the SNCR requirement and reject all of Petitioners’ contentions to the contrary.

2. Copper Smelters

Petitioners’ final series of challenges concerns the EPA’s regulation of Asarco’s .and Freeport-McMoran’s copper smelters, which, unlike CalPortland’s cement kiln, are subject to BART. Final FIP, 79 Fed. Reg. at 52,423. Although the EPA declined to impose additional control measures on the smelters after conducting the requisite five-factor analysis, see 42 U.S.C. § 7491(g)(2), it did promulgate emission limits consistent with the facilities’ existing controls as to nitrogen oxides, particulate matter, and sulfur dioxides. Petitioners now claim that those emission limits are arbitrary or capricious.

a. Nitrogen Oxides Emissions

The EPA imposed a limit of 40 tpy on the nitrogen oxides emissions from each smelter, which it deemed to be well above what the smelters currently emit. Final FIP, 79 Fed. Reg. at 52,424. Petitioners challenge that limitation on two grounds. They first argue that the 40 tpy limit will not “eliminat[e] or reduc[e] any [visibility] impairment,” 42 U.S.C. § 7491(b)(2)(A), because the smelters are already emitting fewer than 40 tpy. And in any event, Petitioners continue, the smelters should not even be subject to BART controls and limitations because the smelters’ current nitrogen oxides emissions are far below the 0.5 deciview threshold the EPA uses to determine whether BART controls are necessary. See Proposed FIP, 79 Fed. Reg. at 9327; Guidelines, 70 Fed. Reg. at 39,161-62. We reject both of these contentions and regard the 40 tpy limitation as a valid exercise of the EPA’s regulatory authority.

Petitioners’ first challenge is also their weakest. While it is true that the smelters currently emit fewer than 40 tpy of nitrogen oxides, nothing prevents them from exceeding that threshold in the future. Given that reality, the EPA acted well within its authority to impose a cap of 40 tpy to ensure that the smelters live up to their representations of keeping their nitrogen oxides emissions low. Not only are such limitations a prudent way to limit visibility impairments in the long run, see 42 U.S.C. § 7491(b)(2)(A), they are also required under the EPA’s current rules that are not being challenged here. Those rules require implementation plans to impose “emission limitations” on all “BART-eligible sources” that have “the potential to emit” over 40 tpy of certain pollutants. 40 C.F.R. § 51.308(e), (e)(l)(ii)(C). Because the smelters here are indisputably BART-eligible sources with “the potential to emit” over 40 tpy of nitrogen oxides, the EPA properly imposed what it deemed to be a reasonable emission limit. We decline to second-guess the EPA’s judgment here.

Petitioners’ second argument — that because the visibility impact of the nitrogen oxides emissions is minuscule, the smelters are not subject to the BART requirements — fares no better. True enough, BART is required for only stationary sources that “cause” (defined as 1.0 deci-views of impact) or “contribute to” (defined as 0.5 deeiviews of impact) visibility impairment. 70 Fed. Reg. 39,104, 39,121; see also 42 U.S.C. § 7491(b)(2)(A); 40 C.F.R. § 51.308(e). But that determination is made on a source-by-source, not on a pollutant-by-pollutant, basis. See 40 C.F.R. § 51.308(e). If the rule were- otherwise, a source causing significant visibility problems (say, over 1.0 deeiviews) would nonetheless escape BART regulation as long as each individual pollutant it emits impaired visibility by no more than 0.5 deeiviews. To avoid that result, the EPA properly imposed emission limits on each pollutant the smelters emit, even if the harm from those individual pollutants is relatively negligible. With respect to the nitrogen oxides emission, the EPA imposed a 40 tpy limit because nitrogen oxides contribute to the overall visual impairment attributable to the copper smelter, even though nitrogen oxides, considered alone, do not contribute in excess of 0.5 deeiviews of visual impairment. The EPA’s actions were neither arbitrary nor capricious, but represented a reasonable interpretation of Section 169A and its implementing regulations.

b. Particulate Matter Emissions

Petitioners next challenge the EPA’s limitation on particulate matter emissions from Asarco’s copper smelter. Although the EPA determined that no additional controls were warranted to reduce the emission of particulate matter, it did require Asarco’s smelter to adhere to the emission limits set forth in Subpart QQQ— a separate program under the CAA not at issue here. Final FIP, 79 Fed. Reg. at 52,447-48; see 40 C.F.R. pt. 63, Subpart QQQ. That approach was particularly appropriate, the EPA reasoned, because As-arco itself relied on the Subpart QQQ limits in its BART analysis. See Final FIP, 79 Fed. Reg. at 52,447. Petitioners now claim that it was wrong for the EPA to incorporate the unrelated requirements of Sub-part QQQ into its Final FIP.

We again disagree that the EPA’s approach was anything but reasonable. As already discussed, the EPA has an obligation to set emission limits for each source subject to BART regulation. See 40 C.F.R. § 51.308(e). In carrying out that duty, the EPA did not pick an emission limit at random but incorporated the requirements of Subpart QQQ to match Asarco’s own BART analysis. See Final FIP, 79 Fed. Reg. at 52,447-48. Since Asarco itself relied on those requirements, the emission limit the EPA imposed was both feasible and likely to improve visibility. Neither Section 169A nor the implementing regulations require anything more of the EPA. See 42 U.S.C. § 7491(b)(2)(A); 40 C.F.R. § 51.308(e).

c. Sulfur Dioxide Emissions

Finally, Petitioners object to the EPA’s imposition of a 99.8 percent control efficiency rate on sulfur dioxide emissions from Asarco’s smelter. Petitioners claim that the 99.8 percent rate is unsupported by evidence, technically infeasible, and arbitrarily more stringent than that imposed on a competitor’s smelter. We are not persuaded.

To begin with, the 99.8 percent figure has ample support in the record: after all, it was based on the information Asarco itself provided to the EPA. In a letter responding to the EPA’s request for information, Asarco described the implementation of its “new double-contact acid plant” and stated, “[according to [its] calculations,” that the acid plant “recovers 99.81 percent of the SO(2) emissions that are vented to it.” Contrary to Asarco’s assertion that the 99.8 percent figure was a rough engineering estimate for a proposed retrofit project that used only potential emissions as data points, the letter unequivocally describes an existing double-contact acid plant that currently recovers 99.8 percent of sulfur dioxide emissions. It was far from arbitrary and capricious for the EPA to rely on Asarco’s own representation in the Final FIP.

Next, Asarco brings a series of highly technical challenges in an attempt to show that it is infeasible to achieve 99.8 percent efficiency on a 365-day rolling average. Asarco argues that the 365-day average would practically amount to a minimum efficiency rate that must be achieved at all times; that it is difficult to demonstrate compliance with the 99.8 percent requirement due to the limitations of sulfur dioxide measuring devices; and that the EPA did not properly take into account the inevitability of startup and shutdown emissions. But all these contentions fail for the same reason: Asarco’s own data shows that it is feasible to achieve 99.8 percent efficiency over 365 days; indeed, Asarco had urged the EPA to modify the 99.8 estimate from a 30-day rolling average to a 365-day rolling average, which the EPA did. That unavoidable fact, coupled with the EPA’s independent findings that it was both possible to achieve and measure 99.8 percent efficiency despite any emissions during the startup and shutdown periods, Final FIP, 79 Fed. Reg. at 52,424, 52,443, gives us enough reason not to second-guess the EPA. It is precisely in such circumstances, “where the issue in question is highly scientific and the [EPA] has unique expertise,” that we “give substantial deference to the [EPA’s] judgment.” Nat’l Wildlife Fed. v. U.S. Army Corps of Eng’rs, 384 F.3d 1163, 1177-78 (9th Cir. 2004).

Finally, Asarco complains that the EPA stuck its smelter with a 99.8 percent rate while imposing a more attainable 99.7 percent rate on Freeport-McMoran, Asarco’s corporate rival. But the EPA treated both smelters exactly alike by relying on the data from each source in establishing the emission limits. See Proposed FIP, 79 Fed. Reg. at 9348. Because the EPA “articulated a rational connection between the facts found and the conclusions made,” Pac. Coast Fed’n of Fishermen’s Ass’ns. v. U.S. Bureau of Reclamation, 426 F.3d 1082, 1090 (9th Cir. 2005), we defer to the EPA’s decision to treat the two sources differently-

In sum, the EPA’s actions with regard to Asarco’s and Freeport-McMoran’s copper smelters were neither arbitrary nor capricious, but reasoned, deliberate, and sensitive to data. We therefore decline to invalidate the emission limitations imposed on those sources.

V.’ CONCLUSION

Some of the challenges to the FIP are not ripe for our review; others lack merit. Accordingly, we dismiss in part and deny in part the consolidated petitions.

PETITIONS DISMISSED IN PART AND DENIED IN PART.

GLOSSARY OF ACRONYMS AND INITIALISMS

CAA — Clean Air Act

BART — Best Available Retrofit Technology

EPA — Environmental Protection Agency

FIP — Federal Implementation Plan

RP — Reasonable Progress

RPGs — Reasonable Progress Goals

SIP — State Implementation Plan

tpy — tons per year

      . As before, we apologize to the reader for our extensive use of acronyms and initialisms throughout this opinion and direct her to the end of the document for a glossary of terms. See Arizona I, 815 F.3d at 525 n.3.

      . All RPGs must be expressed in "deciviews,” which quantify the visibility impairment of a particular region. 40 C.F.R. § 51.308(d)(1). A "one deciview change in haziness is a small but noticeable change,” though "visibility changes of less than one deciview are likely to be perceptible in some cases.” Regional Haze Regulations, 64 Fed. Reg. 35,714, 35,725-26 (July 1, 1999), partially vacated by Am. Corn Growers Ass’n v. EPA, 291 F.3d 1, 6 (D.C. Cir. 2002). The EPA classifies a 1.0 deciview change from an individual source as "causing” the impairment of visibility, while a 0.5 deciview change as "contribut[ing]” to the impairment. Regional Haze Regulations and Guidelines for Best Available Retrofit Technology (BART) Determinations, 70 Fed. Reg. 39,104, 39,121 (July 6, 2005) [hereinafter Guidelines],

      . Although we recognize that not all Petitioners make the same contentions, we refer to "Petitioners” throughout this section indiscriminately for simplicity's sake. We identify individual petitioners as necessary.

      . Petitioners addressed a fifth issue, demonstration requirements that the EPA imposed in an effort to find the optimal SNCR efficiency rate for regulating the cement kilns. See, e.g., Final SIP, 79 Fed. Reg. at 52,464. As all parties now recognize, these "demonstration project claims” are now moot because the EPA has revised the Final FIP to replace the demonstration requirements with certain record-keeping and reporting obligations. See Joint Status Report at 3, Arizona v. EPA, No. 14-73368 (Nov. 7, 2016), Dkt. No. 105; Citation of Supplemental Authorities at 1-2, Arizona v. EPA, No. 14-73368 (Dec. 14, 2016), Dkt. No. 106.

      . Although we have not expressly adopted the D.C. Circuit’s exception to § 7607(d)(7)(B), we have, in construing the National Environmental Policy Act of 1969, 42 U.S.C. § 4321 et seq., cited the Supreme Court’s observation that " ‘[a regulation’s] flaws might be so obvious that there is no need for a commentator to point them out specifically in order to preserve its ability to challenge a proposed action.’ ” Or. Nat. Desert Ass’n v. Jewell, 840 F.3d 562, 573 (9th Cir. 2016) (quoting Dep't of Transp. v. Pub. Citizen, 541 U.S. 752, 765, 124 S.Ct. 2204, 159 L.Ed.2d 60 (2004)).

      . An analogy the EPA provides may be useful to understand these concepts. Just as removing one voice from a room containing a few people would reduce noise to a larger degree than if the room were crowded, limiting emissions from the only polluting source in the area would improve visibility to a larger degree than if there were numerous polluting sources around.

      . Asarco also argues that the EPA should not have relied on the 1984 Review of New Source Performance Standards for Primary Copper Smelters to further support its 99.8 percent limitation. Because the argument was not presented to the EPA, we will not consider it here. See supra, Section IV.A. And even if the argument were presented to the EPA, we would still decline to deem the EPA’s reliance on Asarco’s own representations arbitrary or capricious.

      . Petitioner Phoenix Cement’s pending motion to supplement record is denied.


source: Caselaw Access Project

author: PER CURIAM:

license: Public Domain

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Curtis BLACKWELL, Jr., Defendant-Appellant.
    No. 16-10287
    United States Court of Appeals, Ninth Circuit.
    Submitted March 8, 2017 , San Francisco, California
    Filed April 3, 2017

      Curtis Blackwell, Jr., Lompoc, California, pro se Defendant-Appellant.
    Julie C. Reagin, Assistant United States Attorney; Sara Winslow, Chief, Civil Division; Brian J. Stretch, United States Attorney; United States Attorney’s Office, San Francisco, California; for Plaintiff-Ap-pellee.
    Before: EDWARD LEAVY, WILLIAM A. FLETCHER, and JOHN B. OWENS, Circuit Judges.

       The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2).

   OPINION

PER CURIAM:

Curtis Blackwell, Jr., appeals pro se from the district court’s order denying his motion to set aside enforcement of the fine and restitution ordered as part of his criminal judgment. We have jurisdiction under 28 U.S.C. § 1291. We affirm.

I

In 1993, Blackwell pled guilty to two counts of armed bank robbery, in violation of 18 U.S.C. § 2113(a), (d), and two counts of carrying a firearm during and in relation to a crime of violence, in violation of 18 U.S.C. § 924(c)(1). Blackwell was sentenced to 357 months in prison and ordered to pay $10,000 in fines and $4,122 in restitution. In January 2013, Blackwell stopped paying his fines. After the government demanded in 2015 that he pay the remaining balance, Blackwell filed a pro se motion seeking to set aside collection of his fines and restitution. He argued that under 18 U.S.C. § 3613(b)(1), his liability to pay the ordered fine and restitution had expired in 2013, 20 years after his judgment was entered. The district court denied Blackwell’s motion.

II

At the time Blackwell’s' judgment was entered, the Victim and Witness Protection Act (“VWPA”) provided that a criminal defendant’s liability to pay a fine expired either 20 years after the entry of judgment or upon the death of the defendant. See 18 U.S.C. § 3613(b) (1993). In 1996, however, Congress passed the Mandatory Victims Restitution Act of 1996 (“MVRA”), Pub. L. No. 104-132, 110 Stat. 1227. In relevant part, the MVRA amended the VWPA to provide that the liability to pay a fine or restitution shall terminate “the later of 20 years from the entry of judgment or 20 years after the release from imprisonment of the [defendant].” 18 U.S.C. § 3613(b).

The district court determined that the MVRA, and not the VWPA, applied. We agree. While statutes are ordinarily given only prospective effect, “when a statute is addressed to remedies or procedures and does not otherwise alter substantive rights, it will be applied to pending cases.” Friel v. Cessna Aircraft Co., 751 F.2d 1037, 1039 (9th Cir. 1985) (per curiam) (footnote omitted). We generally have held that statutes of limitations are procedural or remedial in nature. See id. (“Statutes of limitations are usually considered remedial.”); see also Chenault v. U.S. Postal Serv., 37 F.3d 535, 538 (9th Cir. 1994) (‘We have previously suggested that a rule extending a statute of limitations is procedural in nature.... ”). Moreover, the MVRA’s amendment to the termination of liability provision did not affect Blackwell’s substantive rights. After the MVRA was enacted, Blackwell remained liable for the same amount of fines and restitution as he was prior to the enactment. The MVRA merely increased the time period over which the government could collect those fines and restitution. Accordingly, the district court correctly applied the MVRA and determined that Blackwell’s liability to pay his fines and restitution had not terminated.

To the extent that Blackwell contends that application of the MVRA violates the Ex Post Facto Clause, this argument is likewise without merit. See United States v. Gianelli, 543 F.3d 1178, 1183 (9th Cir. 2008) (“Procedural changes ... which do not alter the definition of criminal conduct or increase the penalty by which a crime is punishable, do not violate the Ex Post Facto Clause.” (internal alterations and quotations omitted)); United States v. Leo Sure Chief, 438 F.3d 920, 924 (9th Cir. 2006) (where the statute of limitations had not yet run when the amendment extending the statute took effect, applying amendment did not violate the Ex Post Facto Clause because it did “not purport to resurrect an expired criminal charge”).

AFFIRMED.


author: WATFORD, Circuit Judge: HURWITZ, Circuit Judge,

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Francisco Javier GASCA-RUIZ, Defendant-Appellant.
    Nos. 14-50342
    14-50343
    United States Court of Appeals, Ninth Circuit.
    Argued and Submitted En Banc January 12, 2016 Pasadena, California
    Filed April 5, 2017

      Vincent J. Brunkow (argued) and Ryan V. Fraser, Federal Defenders of San Diego, Inc., San Diego, California, for Defendant-Appellant.
    Peter Ko (argued), Chief, Appellate Section, Criminal Division; Benjamin J. Katz, Assistant United States Attorney; Laura E. Duffy, United States Attorney; United States Attorney’s Office, San Diego, California; for Plaintiff-Appellee.
    Before: SIDNEY R. THOMAS, Chief Judge, and DIARMUID F. O’SCANNLAIN, M. MARGARET McKEOWN, WILLIAM A. FLETCHER, RONALD M. GOULD, JAY S. BYBEE, CARLOS T. BEA, N. RANDY SMITH, PAUL J. WATFORD, ANDREW D. HURWITZ, and MICHELLE T. FRIEDLAND, Circuit Judges.
   Concurrence by Judge HURWITZ

OPINION

WATFORD, Circuit Judge:

We took this case en banc to resolve an intra-circuit conflict over the standard of review that applies when we review a district court’s application of the United States Sentencing Guidelines to the facts of a given case. We conclude that as a general rule such decisions should be reviewed for abuse of discretion.

I

The defendant in this case, Francisco Gasca-Ruiz, pleaded guilty to transporting undocumented immigrants in violation of 8 U.S.C. § 1324. The facts relevant to his sentencing proceeding are undisputed, as they are drawn solely from a Presentence Report whose accuracy neither party challenged.

Gasca-Ruiz was arrested by Border Patrol officers conducting surveillance operations near the United States-Mexico border. They spotted him driving suspiciously and saw him pick up five passengers. Some time later, after Gasca-Ruiz pulled over, two of the passengers got out of-the car and climbed into the trunk. When the officers tried to stop Gasca-Ruiz’s car, he led them on a high-speed chase during which he ran a-red light, almost struck another vehicle, and drove airborne over a drainage ditch. The chase ended when Gasca-Ruiz blew out the passenger-side tires while attempting to drive over a curb. Officers apprehended Gasca-Ruiz after a brief foot chase and detained him along with the five passengers in the car.

The sentencing issue raised on appeal centers on the extent of the injuries suffered by one of the passengers trapped in the trunk. What we know on this subject comes from two paragraphs in the Presen-tence Report, which we will simply quote in full:

13. The MWs [material witnesses] in the trunk reported their bodies were bouncing around in the trunk compartment. They further said it was difficult to breathe because the trunk began to fill with different types of fumes burning from the vehicle. One of the MW’s reported he was screaming it was too hot inside and stated he was getting burned. He informed he pounded on the interior of the trunk, but no one responded. The MWs said they were unable to exit the trunk of the vehicle without the assistance from the law enforcement officers. 14. One of the MWs in the trunk suffered mild lacerations to his fingers from trying to escape and a minor burn on his forearm from the trunk compartment overheating. His injuries were treated at the U.S. Border Patrol station in El Centro; however, he refused to receive any medical attention.

Based on these facts, the Presentence Report recommended imposing the sentencing enhancement in § 2L1.1(b)(7) of the Sentencing Guidelines. That provision calls for a two-level increase in the defendant’s offense level if any person sustained “bodily injury” as a result of the offense, a four-level increase if “serious bodily injury” resulted, or a six-level increase if “permanent or life-threatening bodily injury” resulted. U.S.S.G. § 2L1.1(b)(7)(A)-(C). The Presentence Report recommended the two-level increase for “bodily injury,” which the Guidelines define as “any significant injury; e.g., an injury that is painful and obvious, or is of a type for which medical attention ordinarily would be sought.” § 1B1.1, comment. n.1(B). (By way of comparison, the Guidelines define “serious bodily injury” as “injury involving extreme physical pain or the protracted impairment of a function of a bodily member, organ, or mental faculty; or requiring medical intervention such as surgery, hospitalization, or physical rehabilitation.” § 1B1.1, comment. n.1(L).)

Over Gasca-Ruiz’s objection, the district court imposed the two-level increase for bodily injury under § 2L1.1(b)(7)(A). The court explained that it found the provision applicable because one of the passengers in the trunk sustained “several lacerations on his body and a small burn on his right arm.” The court further explained that the passenger “reported it was difficult to breathe because the trunk began to fill with differing types of fumes. He was screaming. It was too hot inside. And he stated he was getting burned.” The court sentenced Gasca-Ruiz to 37 months in prison, the high end of the resulting advisory Guidelines range.

On appeal, Gasca-Ruiz contends that the district court improperly imposed the two-level increase for bodily injury. In his view, the mild lacerations and minor burn suffered by the passenger in the trunk are not “significant” injuries, as § 2L1.1(b)(7)(A) requires. In his briefs before the three-judge panel, Gasca-Ruiz urged the court to review the district court’s application of § 2L1.1(b)(7)(A) to the facts of his case de novo. The government countered that we should review the district court’s decision deferentially. Both sides were able to cite cases supporting their respective positions because a longstanding intra-circuit conflict exists on this issue. Some of our cases have said that we review de novo a district court’s application of the Guidelines to the facts, while other cases have held that guideline-application decisions are reviewed deferentially for abuse of discretion. See United States v. Staten, 466 F.3d 708, 713 n.3 (9th Cir. 2006) (noting the conflict).

In most cases, the standard of review does not affect the outcome, which is why many three-judge panels in the past have been able to side-step this issue. See, e.g., United States v. Tanke, 743 F.3d 1296, 1306 (9th Cir. 2014); United States v. Garcia, 497 F.3d 964, 969 (9th Cir. 2007). The three-judge panel in this case, however, thought that the standard of review could be dispositive. The panel sua sponte called for the case to be heard en banc, and a majority of the judges in active service agreed to do so in order to resolve the intra-circuit conflict over the proper standard of review.

II

A district court’s decision to apply (or not apply) a particular provision of the Sentencing Guidelines involves three distinct components. First, the district court must identify the correct legal standard, a task that typically entails selecting and properly interpreting the right Guidelines provision. Second, the court must find the relevant historical facts, meaning the facts that answer primarily “what happened” types of questions (who, what, when, where, why, etc.). And third, the court must apply the appropriate guideline to the facts of the case — that is, decide whether the set of historical facts as found satisfies the governing legal standard.

Our cases uniformly hold that we review the district court’s identification of the correct legal standard de novo and the district court’s factual findings for clear error. An intra-circuit conflict has arisen only with respect to the third component: application of the Guidelines to the facts. Most of our cases have held that we review guideline-application decisions for abuse of discretion, but some of our cases state that we review such decisions de novo.

We conclude that, as a general rule, a district court’s application of the Sentencing Guidelines to the facts of a given case should be reviewed for abuse of discretion. To the extent our prior cases state otherwise, they are overruled. We will explain in a moment our reasons for reaching this conclusion, but it will help to clarify- at the outset the distinction between the first and third components mentioned above — identifying the correct legal standard on the one hand, and applying that standard to the facts of a given case on the other.

A

In most Sentencing Guidelines appeals, the applicable legal standard is supplied by the Guidelines themselves. So to determine whether the district court identified the correct legal standard, we review whether the court selected the right Guidelines provision in the first instance and whether the court correctly interpreted the meaning of that provision. To arrive at the governing legal standard, district courts usually need to do little more than consult the text of the applicable guideline and its accompanying commentary. Sometimes, though, when confronted with a factual scenario not explicitly addressed by the guideline’s text or commentary (or by binding precedent construing them), district courts may need to engage in further “norm elaboration” before applying the guideline to the facts of the case at hand. See Henry P. Monaghan, Constitutional Fact Review, 85 Colum. L. Rev. 229, 236-37 (1985). That occurs when, in the course of rendering its decision, the district court formulates or adopts a generalized rule that will apply to an entire class of cases, not just to the case at hand. We will review the district court’s formulation or adoption of such rules de novo, because any error in formulating or adopting a rule of general application necessarily results in a failure to identify the correct legal standard.

We can offer a few examples of the sorts of generalized rules that district courts have formulated in the course of applying particular provisions of the Guidelines, which we have then reviewed de novo. In United States v. Latimer, 991 F.2d 1509 (9th Cir. 1993), the district court decided that, as used in the career offender guideline, “incarceration” includes confinement in a community treatment center. Id. at 1510-11. In United States v. O’Brien, 50 F.3d 751 (9th Cir. 1995), the district court held that the Guidelines’ vulnerable-victim enhancement applies regardless of whether the defendant specifically targeted the victims because they were vulnerable. Id. at 756. And in United States v. Jennings, 439 F.3d 604 (9th Cir. 2006), the district court concluded that the statement “I have a gun,” when made during the course of a robbery without anything more, is insufficient as a matter of law to trigger the Guidelines’ threat-of-death enhancement. Id. at 607-08. The rules formulated by the district courts in each of these cases were rules of general application not limited to the specific facts of the cases before them. We properly reviewed the rule-formulation aspect of the district courts’ decisions de novo as part of the inquiry into whether the courts had correctly interpreted the Guidelines and thus identified the correct legal standard. When, in the course of rendering its decision, the district court formulates or adopts a broad general rule — such as deciding that confinement in a community treatment center is always or never incarceration — de novo review of that aspect of the decision is appropriate.

We can now shift to the component of the district court’s decision at issue in this appeal: the decision to apply (or not apply) a particular guideline to the facts of a given case. Guideline-application decisions, in the sense we refer to them here, arise only after the district court has identified the correct legal standard and properly found the relevant historical facts. At that point, there is often room for judgment in deciding whether the specific constellation of facts at issue meets the governing legal standard. As is true in other contexts, the more general the standard set by the Guidelines, “the more leeway courts have in reaching outcomes in case-by-case determinations.” Yarborough v. Alvarado, 541 U.S. 652, 664, 124 S.Ct. 2140, 158 L.Ed.2d 938 (2004); see also Monaghan, supra, 85 Colum. L. Rev. at 236 (“The more general the rule, the larger the domain for judgment.”). Under the standard of review we adopt today, this last component of the district court’s decision — deciding whether a specific set of facts satisfies the correctly identified legal standard — will generally be subject to review for abuse of discretion.

B

Having clarified what we mean by guideline-application decisions, we can explain why we believe such decisions should be reviewed deferentially rather than de novo.

In deciding which standard of review should govern, the most important consideration is whether district courts or courts of appeals are better situated to make guideline-application decisions in the first instance. See Miller v. Fenton, 474 U.S. 104, 114, 106 S.Ct. 445, 88 L.Ed.2d 405 (1985). If district courts are better situated to do so, and we believe they are, then adopting a deferential standard of review is the most prudent course. That conclusion is supported by Buford v. United States, 532 U.S. 59, 121 S.Ct. 1276, 149 L.Ed.2d 197 (2001), which held that one particular guideline-application decision— deciding whether two prior convictions are “related” for purposes of the career offender guideline — should be reviewed deferentially on appeal. Id. at 60, 121 S.Ct. 1276. We think the Court’s reasoning in Buford applies with equal force to guideline-application decisions more generally.

The defendant in Buford pleaded guilty to armed robbery and faced sentencing under the career offender provisions of the Guidelines, which apply if the defendant has at least two prior convictions for violent or drug-related felonies. U.S.S.G. § 4Bl.l(a). The Guidelines provided that if prior convictions were “related” to one another, they would be treated as a single conviction for purposes of the career offender guideline. Buford, 532 U.S. at 60-61, 121 S.Ct. 1276. The accompanying commentary stated that convictions would be deemed “related” if they were consolidated for sentencing. Id. at 61, 121 S.Ct. 1276. The Seventh Circuit, the jurisdiction in which the case arose, had established a specific standard for determining whether prior convictions were consolidated for sentencing called “functional consolidation.” Id. The defendant did not dispute that the district court had identified the correct legal standard — the Seventh Circuit’s “functional consolidation” standard. Nor did she contest any of the relevant historical facts. She challenged only the district court’s application of the governing legal standard to the facts of her case. Id. at 63, 121 S.Ct. 1276.

The Supreme Court held that the district court’s consolidation determination— an “application of the Guidelines to the facts” — should be reviewed deferentially on appeal rather than de novo. Id. That rule made sense, the Court reasoned, because “the district court is in a better position than the appellate court to decide whether a particular set of individual circumstances demonstrates ‘functional consolidation.’” Id. at 64, 121 S.Ct. 1276. District courts make far more functional consolidation determinations than appellate courts do and thus are likely to be more familiar with the nuts and bolts that go into making such determinations. And deciding whether the standard for functional consolidation has been satisfied “depend[s] heavily upon an understanding of the significance of case-specific details,” a matter over which district courts again have an institutional advantage. Id. at 65, 121 S.Ct. 1276.

The Court recognized that adopting a deferential standard of review would sacrifice a measure of uniformity in application of the career offender guideline. But the Court concluded that concerns with ensuring uniformity, which ordinarily weigh in favor of de novo review, did not carry significant weight in this context. The guideline-application aspect of the district court’s decision did not involve establishment of a rule of general application; it involved only an issue that “grows out of, and is bounded by, case-specific detailed factual circumstances.” Id. Fact-bound determinations of that sort limit the uniformity-producing value of de novo appellate review. Id. at 65-66, 121 S.Ct. 1276. (The Court has elsewhere noted that “[f|act>bound resolutions eannot.be made uniform through appellate review, de novo or otherwise.” Cooter & Gell v. Hartmarx Corp., 496 U.S. 384, 405, 110 S.Ct. 2447, 110 L.Ed.2d 359 (1990) (internal quotation marks omitted).) And to the extent greater uniformity is necessary, the Court stated, the Sentencing Commission can provide it by making adjustments to the Guidelines or the accompanying commentary. Buford, 532 U.S. at 66, 121 S.Ct. 1276.

The Court’s reasoning in Buford, although offered with respect to one guideline-application decision in particular, extends in our view to guideline-application decisions more generally. District courts are better situated than appellate courts to make the fact-specific determinations in-' herent in virtually all guideline-application decisions. District courts make far more guideline-application decisions of all sorts, see Koon v. United States, 518 U.S. 81, 98, 116 S.Ct. 2035, 135 L.Ed.2d 392 (1996), and thus are likely to be more familiar with the nuances that go into applying Guidelines provisions across the board. Guideline-application decisions, as we have defined them, almost always “depen[d] heavily upon an understanding of the significance of case-specific details,” Buford, 532 U.S. at 65, 121 S.Ct. 1276, because once the district court has identified the correct legal standard and properly found the relevant historical facts, all that remains is the fact-bound judgment as to whether a specific set of facts satisfies the governing legal standard. In the Sentencing Guidelines context in particular, that is a judgment district courts are uniquely qualified to make. Each guideline-application decision is ultimately geared toward assessing whether the defendant before the court should be viewed as more or less culpable than other offenders in a given class. In light of their experience sentencing defendants on a day-in-and-day-out basis, district courts possess an institutional advantage over appellate courts in making such culpability assessments. See Koon, 518 U.S. at 98, 116 S.Ct. 2035.

Finally, the case-specific determinations inherent in guideline-application decisions have limited precedential value, a factor that ordinarily cuts against requiring de novo appellate review. See Thompson v. Keohane, 516 U.S. 99, 114 & n.14, 116 S.Ct. 457, 133 L.Ed.2d 383 (1995). Independent review of fact-bound determinations seldom yields an adequate return on the investment of appellate resources required, because such review will generally “fail to produce the normal law-clarifying benefits that come from an appellate decision on a question of law.” Pierce v. Underwood, 487 U.S. 552, 561, 108 S.Ct. 2541, 101 L.Ed.2d 490 (1988).

Adopting abuse of discretion as the'standard of review for guideline-application decisions will not result in a dramatic change in our circuit’s law. As noted earlier, in many of the cases in which we stated that the district court’s “application” of the Guidelines would be reviewed de novo, what we actually reviewed was whether the district court had identified the correct legal standard. De novo review will continue to apply in such cases under the rule we adopt today. And while some of our decisions have classified particular guideline-application decisions as “factual” determinations subject to clear error review, see, e.g., United States v. Hurtado, 760 F.8d 1065, 1068 (9th Cir. 2014); United States v. Miguel, 368 F.3d 1150, 1156 (9th Cir. 2004), those cases would not come out any differently. The guideline-application determinations in those cases would now be reviewed for abuse of discretion rather than clear error, but in this context the two standards are functionally the same. See Cooter & Gell, 496 U.S. at 401, 110 S.Ct. 2447.

The general rule we have established is subject to a proviso, as most general rules are. Guideline-application decisions should almost always be reviewed deferentially for abuse of discretion, but there is at least one situation in which de novo review is appropriate: determining whether a defendant’s prior conviction is for a “crime of violence,” as required under some provisions of the Guidelines. See, e.g., U.S.S.G. §§ 2L1.2(b)(1)(A)(ii), 2S1.1(b)(1)(B)(ii). We have consistently held that such determinations are reviewed de novo, see, e.g., United States v. Grajeda, 581 F.3d 1186, 1188 (9th Cir. 2009), and we see no reason to change that rule, even if we view the crime-of-violence determination as a guideline-application decision. Viewed from that perspective, the Guidelines provide a definition of “crime of violence” and the categorical approach used to make that determination is now well settled, so the correct legal standard will not be in dispute. All the district court must decide is whether a particular conviction satisfies the standard. But the categorical approach requires the crime-of-violence determination to be made on a categorical basis — either all convictions under a particular statute qualify or none do. See Descamps v. United States, — U.S. —, 133 S.Ct. 2276, 2287, 186 L.Ed.2d 438 (2013). Nothing turns on the particulars of the defendant’s own prior offense. In that sense, determining whether a particular conviction qualifies as a crime of violence is akin to formulating a rule of general application, a matter properly reviewed de novo. We need not determine at this juncture whether there are any other limited exceptions to the general rule that guideline-application decisions are reviewed for abuse of discretion.

Ill

The resolution of this appeal is straightforward under the standard of review discussed above. We review de novo whether the district court identified the correct legal standard, and we conclude that it did. The court expressly referred to the applicable provision of the Guidelines, § 2L1.1(b)(7)(A), which establishes the governing legal standard — “bodily injury” sustained as a result of the offense. The district court did not, it is true, make an explicit reference to § 1B1.1, whose commentary supplies the definition of “bodily injury,” or to the terms used in that definition: “any significant injury,” an injury that is “painful and obvious,” an injury that is “of a type for which medical attention ordinarily would be sought.” U.S.S.G. § 1B1.1, comment. n.l(B). As a matter of best practices, district courts should make explicit reference to the section number of the applicable Guidelines provision or alternatively use the language of the provision in rendering their decisions. That is the simplest way to ensure that the record shows the court had in mind the correct legal standard. But absent some indication that the district court had in mind a different definition of “bodily injury,” and here there is none, we will not assume that the court applied the wrong legal standard when assessing the injuries sustained by the passenger in Gasca-Ruiz’s car.

In the course of applying the legal standard established by § 2L1.1(b)(7)(A) to the facts of this case, the district court did not formulate any rules of general application. The court merely explained why, in its judgment, the specific set of facts involved here satisfied the legal standard for “bodily injury.” All that remains, then, is for us to determine whether the district court abused its discretion in making that judgment. (We would ordinarily review the district court’s factual findings for clear error, but in this case the facts were undisputed, so there is nothing for us to review on that front.) The court abused its discretion only if its conclusion that the passenger in the trunk sustained bodily injury is “illogical, implausible, or without support in inferences that may be drawn from facts in the record.” United States v. Hinkson, 585 F.3d 1247, 1251 (9th Cir. 2009) (en banc).

The district court did not abuse its discretion in concluding that the standard for bodily injury had been met. The passenger in the trunk sustained mild lacerations to his fingers while trying to escape and a minor bum on his forearm from contact with the overheated trunk compartment. The inference that the passenger’s injuries were painful and obvious is supported by facts in the record. The passenger screamed that it was too hot inside the trunk and that he was getting burned. Those facts support the inference that the burn, at least, was painful. And the fact that both the burn and the lacerations were noticed by the officers on the scene supports the inference that the injuries were obvious. Moreover, the fact that the officers offered the passenger medical attention after treating the injuries as best they could at the Border Patrol station supports the inference that the injuries were of a type for which medical attention would ordinarily be sought. That the passenger declined, for whatever reason, to receive medical attention does not render illogical or implausible the conclusion that the injuries were of a type for which one ordinarily would seek medical treatment.

AFFIRMED.

HURWITZ, Circuit Judge,

with whom FLETCHER, Circuit Judge, joins, concurring in part and concurring in the result:

As the court today correctly notes, “[i]n most cases, the standard of review does not affect the outcome.” That is true here. The district court found that the injuries suffered by the victim — “several lacerations ... and a small burn” — warranted imposition of the bodily injury enhancement in U.S. Sentencing Guidelines Manual § 2Ll.l(b)(7)(A). Whether reviewed de novo or with deference, the district court’s determination was plainly correct. See U.S.S.G. § 1B1.1 cmt. n.l(B) (defining bodily injury as any significant injury). I would therefore leave for another day, and in a case where it matters to the outcome, the interesting issue of the appropriate standard of review.

      . Gasca-Ruiz also raises a second, completely separate issue concerning the alleged denial of his right to allocution at sentencing. Because Gasca-Ruiz was afforded an adequate opportunity to address the court before the sentence was imposed, we summarily reject his arguments on this issue. See United States v. Allen, 157 F.3d 661, 666 (9th Cir. 1998).

      . We have not always been vigilant in keeping these two components distinct. For example, in many of the cases in which we have stated that a district court's "application” of the Guidelines is reviewed de novo, what we actually reviewed was whether the district court identified the correct legal standard. See, e.g., United States v. Crawford, 372 F.3d 1048, 1053, 1061-62 (9th Cir. 2004) (en banc) (vacating the defendant's sentence because the district court did not apply the legal standard established by circuit precedent).

      . We are aware that Buford relied in part on 18 U.S.C. § 3742(e), which states that courts of appeals "shall give due deference to the district court’s application of the guidelines to the facts." The circuits are divided on whether the "due deference” provision of § 3742(e) survived the Supreme Court’s subsequent decision in United States v. Booker, 543 U.S. 220, 259, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005). See, e.g., United States v. Richards, 674 F.3d 215, 219 n.2 (3d Cir. 2012) (holding that § 3742(e)’s "due deference” provision survives Booker); United States v. Lopez-Urbina, 434 F.3d 750, 763 n.1 (5th Cir. 2005) (holding that it does not). Because we conclude that guideline-application decisions should be reviewed deferentially anyway, we need not decide which side of the circuit split to join.