Amicus Curiae Brief — American Trucking Assns., Inc. v. Browner

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No. 99-1426

Supreme Court of the United §tqteso, 2uasdns |

AMERICAN TRUCKING ASSOCIATIONS, INC., et al.,

Cross-Petitioners,

CAROL M. BROWNER, ADMINISTRATOR OF THE

ENVIRONMENTAL PROTECTION AGENCY, et al. ;

Cross-Respondents.

On Writ of Certiorari to the

United States Court of Appeals

for the District of Columbia Circuit

BRIEF OF AMICUS CURIAE THE

STATE OF NORTH CAROLINA IN SUPPORT

OF CROSS-RESPONDENTS

MICHAEL F. EASLEY

North Carolina Attorney General

Daniel C. Oakley*

Senior Deputy Attorney General

Marc D. Bernstein

Assistant Attorney General

North Carolina Department of Justice

Post Office Box 629

Raleigh, North Carolina 27602-0629

Telephone: (919) 716-6600

* Counsel of Record

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TABLE OF CONTENTS

TABLE OF AUTHORITIES ...............-0--005- ill

INTEREST OF THE AMICUS ........---2eeeeeeeees 2

A. THE STATE PLAYS A PRIMARY ROLE IN THE

PROTECTION OF ITS NATURAL RESOURCES AND

THE HEALTH OF ITS CITIZENS ...........-005- 2

B. THESTATE HAS A PARTICULAR INTEREST IN THE

PROTECTION OF THE HEALTH OF CHILDREN IN

ee oe ee aad eae 4

SUMMARY OF ARGUMENT ............---eeeeee: 6

ee ae 7

I. THE EIGHT HOUR STANDARD IS REQUIRED

TO BEST PROTECT THE PHYSICAL HEALTH

OF CHILDREN ....... S pencewtocenceseecdanes 8

Il. GROUND-LEVEL OZONE IS DETRIMENTAL TO

CHILD DEVELOPMENT ...........-----eeees 11

Ill. A NATIONAL STANDARD IS ESSENTIAL TO

ACHIEVE THE PUBLIC HEALTH OBJECTIVE

AND TO ENSURE A LEVEL ECONOMIC

PLAYING FIELD ..n nw ccccccccccccccccccccces 13

TE TP LOIRE: TRAM eae 17

This page intentionally left blank.

ill

TABLE OF AUTHORITIES

CASES

Page

American Trucking Assn’s, Inc. v. United

States Envtl. Protection Agency, 175 F.3d 1027

reh'g granted in part and reh'g en banc denied,

BP es BONED ccccccccccccccccceees 1, 8, 10

Georgia v. Tennessee Copper Co., 206 U.S. 230,

27 S. Ct. 618, 51 L. Ed. 1038 (1907) .............005. 2

Hancock v. Train, 426 U.S. 167, 96 S. Ct. 2006,

TE och stbsecceseccceccesyecces 2

Huron Portland Cement Co. v. City of Detroit,

362 U.S. 440, 80 S. Ct. 813, 4 L. Ed. 2d 852 (1960) ..... 2

Lassiter v. Department of Social Services, 452

U.S. 18, 101 S. Ct. 2153, 68 L. Ed. 24 640 (1981) ....... 4

Michigan v. United States Envtl. Protection Agency,

213 F.3d 663 (CADC 2000) ........... cece eee eeee 15

Missouri v. Jenkins, 515 U.S. 70, 115 S. Ct. 2038,

ie Serie be sescceccoeetccceces 4

O'Connor v. Donaldson, 422 U.S. 563, 95 S. Ct. 2486,

i do cieccebescecccesotocecces 2

Troxel v. Granville, 120 S. Ct. 2054, 147 L. Ed. 2d 49

EELS ELISE IEE PCL OTT ECT TEE TT ETETE TE 4

STATUTES &

ADMINISTRATIVE MATERIALS

FEDERAL

42 U.S.C. § 7401(aX3) oo. eee eee ee ceceeeeeeeeeeees 2

42 U.S.C. § T409(D\(1) . 2. eee cece ec cccceeeeeees 10, 11

42 U.S.C. § 7410(a(2(D)iMD) eee eee eee eee es 15

Re 15

42 U.S.C. § 7545(cK4\(C) .... 22. ccc eeeeeccceeeeees 16

GRE cisions dtcencadavdapsaarane 14

CO BE, .... caccivisieecininteeaan 16

National Ambient Air Quality Standards for Ozone,

62 Fed. Reg. 38,856 (July 18, 1997) (codified at

GT DUE ocics badewdcdasessacsesesos passim

Finding of Significant Contribution and

Rulemaking for Certain States in the Ozone

Transport Assessment Group Region for

Purposes of Reducing Regional Transport

of Ozone, 63 Fed. Reg. 57,356 (Oct. 27, 1998)

(codified at 40 C.F.R. Parts 51, 72,75 & 96) .......... 15

STATE

1999 N.C. Sess. Laws 328 (codified in part

at N.C.G.S. §§ 119-26.2 & 143-215.107A(c)) ......... 16

2000 N.C. Sess. Laws 134, § 8 (to be codified

at N.C.G.S. § 20-183.3) ..........c cece cece eeee ees 16

WR go rec alec sc iateial ...6

PACS. GURDDGAD 2... cccccccccccccccccccsccces: 5

RO ok co iccutiscsdenceccasaeueas 5

LON.C.AC. § 3U.0S09 2.2.0... ccc ccc cccccccsceten "

A I oo ci cvcninssnkihatoccecaduns 6

SOUR AG. BSINGINE 6. occcccccccscccccccsccescss 6

SOUR, CIIIID oo vicccvkccnédvcncescccacecss a

TRC AL. OOGIND ...occcccccccccscccccovcoss 6

SOOUBAL. OOUGID 20. ccccccccceccssesccccesses 6

ION.C.A.C. § 14V.2204 0.0... cece cece ce eeeeeeeeees 6

SOURD AL OSV BING oo. ccccccsnccceccccvecesecc 6

ION.C.A.C. § 41F.0703 ...... 0. cece cece ececeeeeees 6

SUR DG DODD oc ccciciciccccdivicacaccac: 4

SORSRDAD-GIIGUD cc iccccccccesecctccccceses 4

Del. Admin. Code 70-100-003 § 6.2 ............c000. 13

MISCELLANEOUS

American Acad. of Pediatrics, Better Health

& Fitness Through Physical Activity

iy caccckdnededbecenetotestoesous 12

Memorandum from A. Dennis McBride, State

Health Director, to Bill Holman, N.C. Sec’y of

Envt. & Natural Resources (Aug. 10, 2000) ......... 3,11

Memorandum from Luanne K. Williams ef ai.,

N.C. Dept. of Health & Human Services, to

Alan Klimek, N.C. Div. of Air Quality

PL DMD adeccedesosbaccdencecccconceccaveee 3

N.C. Dept. of Public Instruction et al., Land for

Ramm Gee TES) ccccccccccccccecccccccccss 5,12

N.C. Div. of Air Quality, Eight-Hour Ozone Averages

DOR OP REED oe ehecccckddcccccéeccceseccess 3

U.S. Envtl. Protection Agency, Air Quality

Criteria for Ozone and Related Photochemical

PPP TTTTTTT TTT TT TTT TTT 10

In the

Supreme Court of the United States

AMERICAN TRUCKING ASSOCIATIONS, INC., et al.,

Cross-Petitioners,

Vv.

CAROL M. BROWNER, ADMINISTRATOR OF THE

ENVIRONMENTAL PROTECTION AGENCY, et al.,

Cross-Respondents.

BRIEF OF AMICUS CURIAE THE

STATE OF NORTH CAROLINA IN SUPPORT

OF CROSS-RESPONDENTS

The State of North Carolina, as amicus curiae, respectfully

submits this brief in support of the Cross-Respondent, Carol M.

Browner, Administrator of the United States Environmental

Protection Agency (“EPA”). North Carolina urges reversal of

the decision of the court below, American Trucking Ass'ns, Inc.

(“ATA”) v. United States Envtl. Protection Agency, 175 F.3d

1027, reh'g granted in part and reh'g en banc denied, 195 F.3d

4 (CADC 1999), to allow EPA to enforce its revised primary

National Ambient Air Quality Standard (“NAAQS”) for ozone

(“the eight hour standard”) which requires states to reduce

ambient levels of ozone to 0.08 parts per million (“ppm”).

National Ambient Air Quality Standards for Ozone, 62 Fed.

Reg. 38,856 (July 18, 1997) (codified at 40 C.F.R. Part 50).

INTEREST OF THE AMICUS

A. THE STATE PLAYS A PRIMARY ROLE IN THE

PROTECTION OF ITS NATURAL RESOURCES AND

THE HEALTH OF ITs CITIZENS

Every state retains a quasi-sovereign interest in its natural

resources, including the air within its borders. See Georgia v.

Tennessee Copper Co., 206 U.S. 230, 237, 27 S. Ct. 618, 619,

51 L. Ed. 1038 (1907). Thus, a state may regulate activities that

threaten to degrade its air quality to such a level that the health

and welfare of its citizens are negatively affected. Although

there now exists in the Clean-Air Act a federal mandate to the

states to maintain minimum levels of air quality, the Act

retains, through the use of State Implementation Plans (“SIPs”),

the states’ pre-eminent role in air pollution abatement.

Hancock v. Train, 426 U.S. 167, 169-70, 96 S. Ct. 2006, 2008,

48 L. Ed. 2d 555 (1976). The Clean Air Act itself recognizes

that “air pollution control at its source is the primary

responsibility of States and local governments....” 42 U.S.C. §

7401(a)(3).

The police power provides the state with authority to

regulate for the protection of the health and welfare of its

citizens. Huron Portland Cement Co. v. City of Detroit, 362

U.S. 440, 442, 80 S. Ct. 813, 815, 4 L. Ed. 2d 852 (1960)

(police power encompasses regulation of air pollution). With

regard to those members of society that require special

consideration, such as the mentally and physically impaired,

the interest of the state is heightened. “That the State has a

proper interest in providing care and assistance to the

unfortunate goes without saying.” O'Connor v. Donaldson,

422 U.S. 563, 575, 95 S. Ct. 2486, 2493, 45 L. Ed. 2d 396

(1975).

North Carolina is acutely aware of its responsibilities

regarding air quality and public health. Due in part to its

explosive growth over the past two decades, the State currently

faces vexing ozone pollution problems that endanger the health

of its sensitive citizens in urban areas across the State, and

threaten some of its most valuable natural resources. For

example, in 1999, the State experienced 68 days of unhealthy

ozone levels -- the fifth highest total in the country. See N.C.

Div. of Air Quality, Eight-Hour Ozone Averages in NC in

1999, at 29 (1999). In 1998, six of the State’s urban areas

experienced at least ten exceedances of the eight hour standard

at issue in this case. Memorandum from A. Dennis McBride,

State Health Director, to Bill Holman, N.C. Sec’y of Envt. &

Natural Resources, at 1 (Aug. 10, 2000)

North Carolina’s State Health Director recently reported

that during the 1997 high ozone season elevated ozone levels

caused up to 4.6% (1,900 incidents) of the total respiratory

related hospital admissions in the State. This represents more

than twice the percentage (2.12%) attributed to ozone over the

same period in the thirty-seven eastern states. Estimates of the

cost of treating just these ozone-related hospital admissions

range from $9,000,000 to $19,000,000. Further, high ozone

levels were linked to 5,700 emergency room visits, and

240,000 asthma attacks in North Carolina during the ozone

season. Jd. at 1-2; see also Memorandum from Luanne K.

Williams et al., N.C. Dept. of Health & Human Services, to

Alan Klimek, N.C. Div. of Air Quality (Jan. 11, 2000).

To alleviate these health problems and in furtherance of its

role as protector of its sovereign resources, the State of North

Carolina has adopted regulations to begin voluntarily

implementing the eight hour ozone standard that is before this

Court. See 15A N.C.A.C. § 2D.0405.

B. THE STATE HAS A PARTICULAR INTEREST IN THE

PROTECTION OF THE HEALTH OF CHILDREN IN

THE STATE

Historically, the state has played an important role in the

protection of one of its most valuable assets -- children. See,

e.g., Missouri v. Jenkins, 515 U.S. 70, 113, 115 S. Ct. 2038,

2061, 132 L. Ed. 2d 63 (1995) (O’Connor, J., concurring)

(noting states’ historical sovereignty and “claim by right of

history and expertise” in field of education). No state has taken

this role more seriously in recent years than North Carolina.

The amicus submits that it vigorously safeguards the health of

the children of its citizens and has a substantial interest in

reducing ozone pollution in order to protect this particularly

sensitive segment of the population.

Under the state’s obligation as parens patriae, it seeks to

protect the health and welfare of minors when the minor’s

parents or guardian are unable to adequately perform that task.

E.g., Lassiter v. Department of Social Services, 452 U.S. 18,

101 S. Ct. 2153, 68 L. Ed. 2d 640 (1981) (upholding

involuntary termination of parental rights at request of North

Carolina locality); see also Troxel v. Granville, 120 S. Ct.

2054, 2072, 147 L. Ed. 2d 49 (2000) (Stevens, J., dissenting)

(noting, with regard to children, states’ “long-recognized

interests as parens patriae”). In furtherance of and to

complement this role, the amicus regulates schools, day care

centers, and foster homes to assist parents in the upbringing of

children. In particular, education is of the highest priority in

North Carolina, and regular attendance is critical to a child’s

Success in school. Individual school boards maintain some

flexibility over the school calendar, but the State requires each

public school to provide 180 days and 1,000 hours of

instruction for enrolled children. N.C.G.S. § 115C-84.2.

Attendance is mandatory. /d. § 115C-378. Although

nonattendance for health reasons is considered an excusable

absence, repeated absence for any reason is detrimental to any

child’s academic and social development. The State plainly

cannot mandate attendance in school yet sit idly by while

avoidable health problems, such as those attributable to high

concentrations of ground-level ozone, lead to absenteeism.

Children must also be afforded the rich outdoor

experiences that are vital to a child’s development. Although

the State allows for local control over the physical layout of

elementary and secondary schools, the Department of Public

Instruction provides detailed guidelines for the selection of

sites for such schools and the planning of school facilities.

These guidelines recommend that the usable area of any school

grounds be large enough to accommodate outdoor instruction

and recreation, and provide very specific guidance regarding

the improvement of outdoor areas for these important purposes.

See N.C. Dept. of Public Instruction et al., Land for Learning

(June 1998).

The State is even more insistent that children are afforded

ample opportunity for outdoor experience at facilities that it

regulates directly. The State requires licensed day care facilities

to reserve a certain area for outdoor activities and to allow each

child the opportunity for outdoor activity. N.C.G.S. § 110-91;

10 N.C.A.C. §§ 3U.0509, .0511, .0601, .1402, .2504, .2508.

The State further mandates provision of outdoor activity space

by developmental day services for children with or at risk for

developmental challenges, foster homes, and residential child

care facilities. 10 N.C.A.C. §§ 14V.2204, .2404, 41F.0703,

41S.0609.

North Carolina, having aggressively exercised its

regulatory obligation to protect the physical and mental health

of the children of its citizens, retains a significant interest in the

abatement of ground-level ozone pollution, particularly as it

impacts children.

SUMMARY OF ARGUMENT

The expansive record produced by EPA in this case clearly

supports EPA’s decision to revise the ozone NAAQS. Current

data show that tropospheric ozone at any level has adverse

health effects. Therefore, EPA has revised the averaging period

from one to eight hours to provide a more comprehensive

standard. The concentration level has been lowered from 0.12

ppm to 0.08 ppm to reduce the incidence of adverse health

effects. EPA updated the measurement of the NAAQS to a

concentration-based form to take into consideration the

magnitude and not just the number of violations of the ambient

standard. These amendments to the NAAQS will result in

significant and necessary improvements in the physical health

of children, other sensitive populations, and the general

population.

The benefits to youths are of special concern to the State

because illnesses to children may result in developmental

setbacks. For example, increased ground-level ozone may force

a child to miss school more often. In addition, ozone-related

health problems may deter a child from outdoor activities that

present significant opportunities for social and physical

development.

To realize these health benefits, the eight hour standard

established by EPA must be enforced nationwide. Any state

may, as North Carolina intends, implement the eight hour

standard under state law. But increased costs to industry and

consumers attend such a program, creating an economic

disadvantage for states implementing the more protective

standard. Also, the migratory nature of air pollutants places at

risk any state’s efforts to attain the standard. Ozone precursors

imported from other states can overwhelm local efforts to

curtail ozone pollution, such as may be occurring in the western

North Carolina section of the Great Smoky Mountains National

Park.

ARGUMENT

The amicus supports and endorses the views expressed by

its sister states presented in amicus curiae briefs by New York

et al. in the companion case, Browner v. ATA, No. 99-1257,

and by California et al. in this case. North Carolina writes

separately to bring to the Court’s attention the health benefits

of the eight hour standard and the need for a national standard

to achieve these benefits.

This brief will focus in large measure on the adverse

impacts of tropospheric ozone on children’s health. The amicus

does not intend to imply that this is the only group that will

benefit from the eight hour standard. Indeed, the entire

population will face fewer health risks under the more stringent

standard. E.g., 62 Fed. Reg. at 38,864/3 (suggesting that

reductions in hospital admissions for respiratory causes will

occur as the ambient ozone concentration level is reduced).

Asthmatics will gain particularly, e.g., id. at 38,864/2 (exposure

to ozone may exacerbate asthma), as may the elderly and those

who work or exercise regularly outdoors. The attention given

children herein is merely to illustrate the impacts of ground-

level ozone on one sensitive population.

I. THE EIGHT HOUR STANDARD IS REQUIRED TO

BEST PROTECT THE PHYSICAL HEALTH OF

CHILDREN

EPA’s data show that ground-level, or tropospheric, ozone

is a “non-threshold” pollutant, because no minimum level of

ozone has been identified under which health effects become

negligible. Simply put, the less ozone humans inhale, the less

often adverse health impacts will occur and the less severe

those impacts will be. See ATA, 125 F.3d at 1034. The

question thus becomes, at what ozone standard does the health

risk become acceptable? See 62 Fed. Reg. at 38,863/3.

The revised ozone NAAQS consists of three elements: the

averaging period (eight hours), the ambient concentration level

(0.08 ppm) and the form (fourth highest measurement over

averaging period not to exceed level). EPA studied each

element exhaustively and selected an appropriate standard from

a limited range of options. The amicus supports EPA’s

selection of the eight hour standard as a legally permissible

implementation of the Clean Air Act. This significant

improvement in air quality is a necessary step in the evolution

of the safeguarding of juvenile health in the face of scientific

uncertainty.

The eight hour averaging time better protects the health of

children than the one hour averaging time under the current

ozone NAAQS. First, the eight hour averaging standard is more

comprehensive, as it acts to suppress ozone levels over a longer

period of time. The Clean Air Scientific Advisory Council

(“CASAC”) plainly concluded that the “8-hour standard [is]

more appropriate for a human health-based standard than a 1-

hour standard.” 62 Fed. Reg. at 38,861/3. Second, scientific

evidence that was not available when EPA last reviewed the

ozone NAAQS now demonstrates that adverse health

consequences occur at ozone concentrations lower than the

current 0.12 ppm standard when that concentration is

experienced over an eight hour period. /d. at 38,861/2.

The amicus further submits that the EPA’s selection of a

concentration level of 0.08 ppm was appropriate. Although

evidence now supports the existence of adverse health effects

at levels below the current 0.12 ppm standard, a level of 0.09

ppm coupled with an eight hour averaging period represents a

marginal if any improvement over the current standard. Jd. at

38,864/2. Implementation of a 0.08 ppm ozone level would

eliminate hundreds of thousands of occurrences in children of

adverse ozone reactions in EPA’s limited study area alone. Jd.

at 38,864/3. EPA would be abdicating its duty to “protect the

public health,” 42 U.S.C. § 7409(b)(1), if it simply ignored this

data rather than promulgating at least the incremental

improvement represented by the eight hour standard.

Estimates of average naturally occurring background levels

of ozone range from 0.02 ppm to 0.05 ppm. U.S. Envtl.

Protection Agency, Air Quality Criteria for Ozone and Related

Photochemical Oxidants, at § 1.4 (1996). A concentration level

of 0.07 ppm measured over eight hours approaches the levels

that occur naturally, albeit infrequently, in some areas. 62 Fed.

Reg. at 38,868/3. Thus, there is no merit to the argument that

in order to protect the public health, EPA must set the NAAQS

for a non-threshold pollutant at zero. See ATA, 175 F.3d at

1034. Such a standard implies that Congress intended that

naturally occurring tropospheric ozone be cleansed entirely

from the air, which is absurd.

The third and final element of the NAAQS is the “form.”

“Taken together, the level and form of the standard, for a given

averaging time, determine the degree of public health

protection afforded by the standard.” 62 Fed. Reg. at 38,863/2.

The current one hour standard uses an exceedance-based form,

under which attainment is measured by the number of days on

which ozone levels exceed the ambient standard. The

concentration-based form that EPA seeks to adopt assesses

' The EPA’s study area included nine urban areas in which

approximately 3.1 million “outdoor children” lived. 62 Fed. Reg. at

38,865/2 n.15

compliance by averaging each of the annual fourth highest

ozone concentration levels for three consecutive years. Unlike

the exceedance-based form, the concentration-based form more

appropriately considers the magnitude of each violation, and

not just the number of violations. EPA found that the

concentration-based form also provides greater stability from

year to year. Id. at 38,869/2-3.

The amicus agrees with EPA that the impacts to children

under the one hour standard are substantial and should be

reduced. In supporting adoption of the eight hour standard, the

North Carolina State Health Director concluded, as did

CASAC, that the one hour standard provided little or no margin

of public safety, especially for sensitive populations, such as

children. Memorandum from McBride, supra, at 2; 62 Fed.

Reg. at 38,863/3; see also 42 U.S.C. § 7409(b)(1) (requiring

NAAQS to be established to allow “an adequate margin of

safety”).

Il. GROUND-LEVEL OZONE IS DETRIMENTAL TO

CHILD DEVELOPMENT

“Outdoor children” are at particular risk from the effects of

ground-level ozone. This population includes children between

the ages of six and eighteen years of age who are active

outdoors, and represents thirty to forty-five percent of the entire

population of children. 62 Fed. Reg. at 38,860/3 n.7. “Outdoor

children” with asthma are at an even greater risk.

Even at the 0.08 ppm standard, just under one in every one

hundred outdoor children will experience moderate to severe

pain when breathing deeply at least once annually. Each child

that experiences this symptom will average nearly 4.5 such

occurrences each year. Jd. at 38,865/3. This certainly will

impact that child’s ability to attend school, and his or her

ability to participate in outdoor recreation and instruction.

Numerous studies have detailed the importance of physical

activity in human development. The American Academy of

Pediatrics (“AAP”) notes the following potential benefits of

physical activity in children: preventing high blood pressure,

strengthening bones, warding off heart disease and other

medical problems, developing a habit of physical activity that

carries into adulthood, and maintaining or achieving proper

weight. The AAP also cites as a major benefit of physical

activity in children and young adults the relief of stress

related to family problems, social conflicts and

school pressures. American Acad. of Pediatrics, Better

Health & Fitness Through Physical Activity (No. HE0090

1996). Furthermore, participation in team sports assists the

development of the ability to work with others and good

sportsmanship. See Land for Learning, supra, at 39.

The psychological and emotional benefits of physical

activity for minors are well-documented. To further these

benefits children should be offered a wide range of activities,

including a wealth of outdoor activities, to ensure that each

child finds suitable interests. Any deterrent to these pursuits

should be reasonably reduced. Ozone pollution can

substantially impact sensitive children, especially the

increasing numbers of those with asthma, and hinder their

participation in vital physical activity.

In the interest of taking every reasonable step to promote

the physical and mental well-being of children, the amicus

contends that the eight hour ozone standard is necessary to

ensure that children’s academic, physical, and social

development are not hindered by the adverse effects of

tropospheric ozone.

Ill. A NATIONAL STANDARD IS ESSENTIAL TO

ACHIEVE THE PUBLIC HEALTH OBJECTIVE

AND TO ENSURE A LEVEL ECONOMIC PLAYING

FIELD

North Carolina has voluntarily adopted the eight hour

standard, and is proceeding to implement it. But it is only one

of two states to take this step.’ The amicus applauds the

adoption by EPA of a national standard that adequately protects

public health, but suggests that absent uniform enforcement of

the standard, which is substantially inhibited by the Court of

Appeals decision, North Carolina’s efforts might not yield the

projected health benefits and in the process will subject the

State’s industry and consumers to an unfair financial burden.

Compliance with the eight hour standard will save the

State and its citizens and businesses millions of dollars from,

for example, worker-hours that are not lost and crops that are

not damaged. But, of course, ozone pollution knows no

political boundaries. Even North Carolina’s best efforts alone

do not guarantee the safety and health of its population, and

? Delaware also has promulgated the eight hour standard. See Del.

Admin. Code 70-100-003 § 6.2.

will not result in these projected economic benefits if sources

in nearby states are not subject to equally stringent controls.

The interstate ozone transport problem is directly

observable in the Great Smoky Mountains, which are home to

the Great Smoky Mountains National Park. The park -- truly a

national treasure -- is the most visited national park with over

nine million visitors annually. But in 1998, ozone levels in the

park exceeded the eight hour standard on 44 days -- the most of

any national park for that year. The park also recorded 52 days

of exceedances in 1999 and 22 so far this year.’ Ground-level

ozone hampers physical activity in the park and degrades

vegetation. North Carolina has proposed that the area be

designated nonattainment under the eight hour standard.‘

Ozone violations in the North Carolina mountains result

not only from sources within the State, but also from ozone

precursors that originate as near as Tennessee and as far away

as Illinois and Louisiana. North Carolina’s adoption of the

eight hour standard will not affect these foreign sources and

will not sufficiently reduce ozone levels in the mountains.

Moreover, the lack of an enforceable national eight hour

standard will deprive the State of the remedy Congress made

available under section 126 for interstate pollution abatement.

> As of August 18.

* The National Park itself is a Federal Class I Area that will receive

some special protection under the EPA’s recently promulgated Regional

Haze Regulations. See 40 C.F.R. Part 51. But other areas of the State’s vast

mountains suffer from similar ozone maladies and are protected only by the

usual Clean Air Act tools and the State’s own effort.

See 42 U.S.C. § 7426. A national standard is needed to address

this problem.

The State is gravely concerned that its leading role in the

protection of public health will negatively impact its economic

growth relative to its sister states. In order to comply with the

eight hour standard North Carolina will seek reductions in

ozone precursors from both stationary and mobile sources.

State regulators expect substantial reductions in NO,’

emissions from compliance with Title IV of the Clean Air Act

and the recent SIP revisions ordered by the EPA. See Finding

of Significant Contribution and Rulemaking for Certain States

in the Ozone Transport Assessment Group Region for Purposes

of Reducing Regional Transport of Ozone, 63 Fed. Reg. 57,356

(Oct. 27, 1998) (codified at 40 C.F.R. Parts 51, 72, 75 & 96)

(“NO,, SIP Call’). However, the State anticipates that these

reductions will not be sufficient to achieve compliance with the

eight hour standard. Thus, North Carolina’s ozone plan

ultimately will require additional controls on individual

stationary sources, mostly in and near metropolitan areas,

which controls are more stringent than those required by the

NO, SIP Call.° Although the extent of these controls has yet to

Oxides of nitrogen, or NO, are chemical precursors of ozone and

reductions in emissions of NO, result in reduced tropospheric ozone levels.

* — Through the NO, SIP Call, EPA has required 22 eastern states to

impose controls on sources of NO, that “contribute significantly to

nonattainment in, or interfere with maintenance by” other states. 42 U.S.C.

§ 7410(aX(2)(D)iX1). North Carolina joined several states in challenging

this rule. See Michigan v. United States Envtl. Protection Agency, 213 F.3d

663 (CADC 2000). North Carolina believes that interstate transport of NO,

(continued...)

be determined, the plan assuredly will result in increased costs

to industry that will be passed on at least in part to small

businesses and consumers.

The North Carolina General Assembly last year enacted

the Ambient Air Quality Improvement Act of 1999 to expand

the vehicle inspection and maintenance program to nearly

half of all the counties in the State by 2006. See 1999

N.C. Sess. Laws 328, Part III (codified in part at N.C.G.S.

§ 143-215.107A(c)). The program was refined in 2000 to allow

for the use of onboard diagnostic equipment. See 2000 N.C.

Sess. Laws 134, § 8 (to be codified at N.C.G.S. § 20-183.3). It

is expected that the incremental cost to consumers of the

inspection alone will exceed $35,000,000, at an average cost of

$13.30 per vehicle per year. This figure does not include repair

costs to the consumer resulting from the detection of emissions

equipment failures. In addition, North Carolina will seek EPA’s

approval to reduce the sulfur content of gasoline two years

prior to the national deadline. 1999 N.C. Sess. Laws 328, Part

II (codified in part at N.C.G.S. § 119-26.2) (setting 2004 as

deadline); 40 C.F.R. § 80.195; 42 U.S.C. § 7545(c)(4)(C)

(providing exemption from pre-emption). The cost to

consumers over those two years will be just short of

$100,000,000.

A national ambient ozone standard that protects the public

from the health risks evidenced in the record would alleviate

* — (...continued)

is a serious threat to public health and national standards are required to

abate this problem. The State disagrees only with EPA’s approach to the

matter, and not EPA’s goal of reducing tropospheric ozone levels.

the disparate economic consequences to states such as North

Carolina that choose to implement the eight hour standard.

CONCLUSION

For all of the foregoing reasons, the amicus respectfully

requests that this Court reverse the decision of the. Circuit

Court.

Respectfully submitted,