Amicus Curiae Brief — Environmental Defense v. Duke Energy Corporation

xii

TABLE OF AUTHORITIES — Continued

U.S. Environmental Protection Agency, Research

Triangle Park, EPA-452/R-95-005, Review of the

National Ambient Air Quality Standards for

Nitrogen Oxides: Assessment of Scientific and

Technical Information (1995) ...........cccccccecceseeseeeeseees

Willem R. M. Dassen et al., Decline in Children’s

Pulmonary Function During an Air Pollution

Episode, 36 J. Air Pollution Control Ass’n 1223

UL IUITED cincesvisenececsessishonnbossiteenncerienticsnadsssesdnduundpanedesaiente 7

W. James Gauderman et al., Association between

Air Pollution and Lung Function Growth in

Southern California Children: results from a

second cohort, 166 Am. J. Respir. & Crit. Care

ET A Sa ML eS ee

W. James Gauderman et al., The effect of air pollu-

tion on lung development from 10 to 18 years of

age, 351 New Engl. J. Med. 1057 (2004).................

William S. Linn et al., Air Pollution and Daily

Hospital Admissions in Metropolitan Los Ange-

les, 108 Envtl. Health Persp. 427 (2000) .................

World Watch Institute, World Watch Paper #94,

Cleaning the Air: A Global Agenda (1994)...............

Yun-Chul Hong et al., Effects of Air Pollutants on

Acute Stroke Mortality, 110 Envtl. Health Persp.

BI CIID cccncccnsscenenincepteinusyninntienseennetensennesteniiededldads

Page

INTEREST OF AMICI’

The American Lung Association (“ALA”), a nonprofit

organization founded in 1904, is one of the nation’s oldest

voluntary health organizations. ALA’s mission is to pre-

vent lung disease and promote lung health. ALA is active

in research, public education, and advocacy to reduce air

pollution and its accompanying threats to lung health.

ALA has published many reports on air pollution, most

notably the annual American Lung Association State of the

Air report. Through its advocacy programs, ALA has

participated in the development and enforcement of laws

and regulations related to lung health at the national,

state, and local levels, including playing a major role in

the passage of the Clean Air Act (“CAA”) Amendments of

1977 and 1990.

The American Thoracic Society (“ATS”), an interna-

tional educational and scientific organization, was founded

in 1905. ATS, and the approximately 13,000 physicians

and scientists it represents, help prevent and fight respi-

ratory disease around the globe through research, educa-

tion, patient care, and advocacy. ATS publishes a number

of scientific journals that include studies on air pollution

and health. In fact, the United States Environmental

Protection Agency (“EPA”) has consulted ATS guidelines to

characterize the adverse effects of exposure to air pollu-

tion. See, e.g., National Ambient Air Quality Standards for

’ Pursuant to Supreme Court Rule 37.6, no counsel for any party

authored this brief either in whole or in part. No persons other than the

amici made any monetary contributions to its preparation or submis-

sion. Petitioners, Respondent, and the Solicitor General of the United

States consented to this filing, and letters of consent are being submit-

ted with the brief.

Ozone, 62 Fed. Reg. 38,856, 38,860 (July 18, 1997) (codi-

fied at 40 C.F.R. §§ 50.9, 50.10).

The American Association for Cardiovascular and

Pulmonary Rehabilitation (“AACVPR”), founded in 1985,

is a national organization representing approximately

3,000 members expert in assessing the harm to human

health caused by air pollution. AACVPR and its physician

and scientist members are dedicated to reducing morbid-

ity, mortality, and disability from cardiovascular and

pulmonary diseases. AACVPR carries out its goal through

education, prevention, rehabilitation, research, and

aggressive disease management programs, including

publication of the Journal of Cardiopulmonary Rehabilita-

tion, a scientific journal that includes studies on the

health effects of air pollution.

The National Association for the Medical Direction of

Respiratory Care (“NAMDRC”) was founded in 1977 and

represents approximately 600 members working at more

than 2,000 hospitals nationwide. NAMDRC and its mem-

bers are devoted to studying, preventing, and treating

thoracic and respiratory diseases in order to carry out

their mission of reducing the morbidity and mortality of

patients with respiratory disorders. NAMDRC advances

that mission through various prevention, education, and

advocacy programs to protect lung health, such as filing

comments with EPA regarding the public health impacts of

proposed air pollutant regulations. See, e.g., National

Ambient Air Quality Standards for Particulate Matter, 71

Fed. Reg. 2,620 (proposed Jan. 17, 2006) (to be codified at

40 C.F.R. § 50).

The American College of Chest Physicians (“ACCP”),

founded in 1935, is an international medical society

3

dedicated to providing postgraduate medical education for

physicians, surgeons, and allied health professionals

involved in the diagnosis and treatment of chest diseases.

ACCP, and the more than 16,000 health care professionals

it represents, help promote the prevention and treatment

of diseases of the chest through leadership, education,

research, and communication. ACCP publishes CHEST, a

leading scientific journal featuring clinical research in

pulmonary, critical care, sleep, and chest medicine disci-

plines. ACCP also advocates before government agencies

and the courts, offering expert opinion on issues affecting

cardiopulmonary health, including the effects of air

pollution. See, e.g., New York v. U.S. Environmental

Protection Agency, 413 F.3d 3, 30 (D.C. Cir. 2005) (discuss-

ing studies on the health effects of air emissions that were

presented by amici, including ACCP).

Amici support Petitioners’ position because of the

significant negative health effects associated with in-

creased emissions from coal-fired power plants.

o

SUMMARY OF ARGUMENT

Air pollution can have severe, even fatal, health effects.

Coal-fired power plants, like those operated by Duke Energy

Corporation (“Duke”), emit dangerous air pollutants, notably

particulate matter, nitrogen oxides, and sulfur dioxide.

Exposure to these pollutants can cause a myriad of health

impacts, including premature death, increased hospitaliza-

tion for asthma, and development of chronic respiratory

diseases. Air pollution is especially harmful to children and

their developing respiratory systems. Air pollution from

power plants is also responsible for significant social welfare

4

costs, such as increased health care costs, job absences,

and missed school days.

Congress added the Prevention of Significant Deterio-

ration (“PSD”) program to the Clean Air Act (“CAA”) in

1977 specifically to protect public health and welfare from

the injurious effects of air pollution by tightening existing

pollution controls. Under the PSD program, the operator

of an emitting facility in an area that has attained na-

tional ambient air quality standards (“NAAQS”) may not

undertake a “modification” of that facility unless EPA has

issued a permit. To fulfill Congress’s goal of protecting

public health and welfare, EPA has required operators of

coal-fired power plants to obtain a PSD permit for any

plant modifications that will cause a significant increase

in annual net emissions.

However, the Fourth Circuit Court of Appeals rejected

EPA’s interpretation of what constitutes a PSD “modifica-

tion” and instead imposed a definition that will allow old

coal-fired power plants to be completely refurbished and

increase their total amount of harmful emissions, without

being required to obtain a permit from EPA. Such plant

refurbishments substantially increase the actual amount

of air pollution emitted to the surrounding community,

thereby further degrading air quality and causing signifi-

cant adverse public health and welfare effects. Contrary to

the Fourth Cir. .:’s ruling, EPA correctly implemented a

PSD program that achieves Congress’s goal of protecting

public health and welfare from the harms of increased air

pollution from power plant “modifications.”

¢

ARGUMENT

I. Air Pollution from Coal-Fired Power Plants Has

Significant and Severe Impacts on Public Health

and Welfare.

Coal-fired power plants, which are comprised of

individual electric generating units (“EGUs”), are major

sources of three pollutants specifically addressed in the

Clean Air Act: particulate matter (“PM”), nitrogen oxides

(“NO,.”), and sulfur dioxide (“SO,”). See 42 U.S.C.

§ 7403(g)(1) (2004). Not only are these pollutants harmful

themselves, but NO. and SO, also contribute to the forma-

tion of additional PM, and NO. is an essential precursor to

the creation of ozone. The emission of these pollutants, as

well as their roles in forming additional pollutants after

emission, has significant and severe impacts on public

health, even when the pollutants are present at levels

below the air quality standards mandated by the CAA. See

Staff of Senate Committee on the Environment and Public

Works, 95th Cong., A Legislative History of the Clean Air

Act Amendments of 1977, 6634-55 (Comm. Print 1978)

{hereinafter “CAA 1977 Legis. History”) (statement of the

House Committee on Interstate and Foreign Commerce)

(discussing multiple ways in which attainment of NAAQS

does not adequately protect public health).

Children are especially vulnerable to the health

impacts of air pollution because they breathe more air per

pound of body weight than adults and because most of the

human respiratory capacity is developed before the age of

eighteen.’ Moreover, because children are outside for

* Rodney R. Dietert et al., Workshop to identify critical windows of

exposure for children’s health: immune and respiratory systems work-

group summary, 108 Envtl. Health Persp. 483 (2000); Blanka Binkova

(Continued on following page)

6

longer periods of time and are usually more active when

outdoors, they inhale more polluted air than adults typi-

cally do.”

A. Health Impacts of Particulate Matter

According to EPA, PM is a “mixture of microscopic

solids and liquid droplets suspended in the air” made up of

a number of different components, including acids, chemi-

cals, metals, soils, dust, and allergens, such as pollen. U.S.

Environmental! Protection Agency, Office of Air and Radia-

tion, EPA-452/F-03-001, Particulate Pollution and Your

Health (2003), available at http://www.epa.gov/airnow/

particle/pm-color.pdf. The particles that make up PM vary

in size, but most are one-seventh to one-thirtieth the

diameter of a strand of human hair. Researchers catego-

rize PM according to size — generally speaking, coarse

particles are between 2.5 and 10 microns in diameter

(PM,,.,); fine particles are 2.5 microns in diameter or

smaller (PM,,); and ultrafine particles are smaller than

0.1 micron in diameter.‘ Because of the relatively small

size of individual particles, PM is often visible only as the

haze that forms when millions of particles in the air blur

the spread of sunlight.

et al., The effects of air pollution on children’s health and development:

a review of the evidence, WHO Regional Office for Europe (2004),

available at http://www.euro.who.int/document/EEHC/execsum pdf.

* American Academy of Pediatrics, Committee on Environmental

Health, Ambient Air Pollution: Health Hazards to Children, 114

Pediatrics 1699 (2004).

* U.S. Environmental Protection Agency, EPA/600/P-99/002aF, Air

Quality Criteria for Particulate Matter, Vol. 1, p. 2-7 to 2-37 (2004),

available at http://oaspub.epa.gov/eims/eimscomm.getfile?p_download_

id=435945.

Coal-fired power plants produce PM through both

mechanical and chemical processes. Burning coal me-

chanically produces coarse PM and larger, visible particles

by breaking or reducing large chunks of coal into smaller

ash and soot, with the material itself remaining the same

chemically.” Burning coal also emits elemental carbon,

SO,, and NO,, which chemically react with water and

other compounds in the atmosphere to form fine and

ultrafine particles of different chemical compounds.*

Because of PM’s size, these particles get trapped in

the smaller airways and alveoli of the lungs, and the fine

and ultrafine PM can pass through the alveoli into the

blood stream, traveling throughout the body.’ Although

PM may vary in size and method of formation, the interac-

tion of all sizes of PM with the body can have serious

consequences.

Exposure to PM can kill." When PM levels in the air

are high, deaths can occur immediately (i.e., on that day or

soon thereafter), or within one to two months, by inducing

heart attacks and strokes.” In addition, daily exposure to

* Id.

* Id.

* Gunter Oberdorster et al., Nanotoxicology. An Emerging Disct-

pline Evolving from Studies of Ultrafine Particles, 113 Envtl. Health

Persp. 823 (2005).

* C. Arden Pope III et al., Particulate Air Pollution and Daily

Mortality on Utah's Wasatch Front, 107 Envtl. Health Persp. 567

(1999).

* Francesca Dominici et al., On the Use of Generalized Additive

Models in Time-Series Studies of Air Pollution and Health, 156 Am. J.

Epidemiology 193 (2002); Yun-Chul Hong et al., Effects of Air Pollutants

on Acute Stroke Mortality, 110 Envtl. Health Persp. 187 (2002); Shang-

Shyue Tsai et al., Evidence for an Association Between Air Pollution

(Continued on following page)

8

PM, even at low levels, can lead to death by causing life-

threatening diseases. Unfortunately, PM does not just

make people die a few days earlier than they might other-

wise; these are premature deaths that would not have

occurred until months or years later if the air were

cleaner.”

In addition to premature death, sharp increases in PM

levels in air pollution have been linked to other serious

health effects, including increased numbers of heart

attacks (especially among the elderly and people with

cardiovascular disease),” increased hospitalization for

cardiovascular disease (including strokes and congestive

heart failure),” increased emergency room visits for

and Daily Stroke Admissions in Kaohsiung, Taiwan, 34 Stroke 2612

(2003).

Douglas W. Dockery et al., An Association Between Air Pollution

and Mortality in Six U.S. Cities, 329 New Engl. J. Med. 1753 (1993); C.

Arden Pope III et al., Particulate Air Pollution as a Predictor of

Mortality in a Prospective Study of U.S. Adults, 151 Am. J. Respir. &

Crit. Care Med. 669 (1995); Daniel Krewski et al., Reanalysts of the

Harvard Six Cities Study and the American Cancer Society Study of

Particulate Air Pollution and Mortality (Health Effects Institute 2000).

" Antonella Zanobetti et al., The Temporal Pattern of Respiratory

and Heart Disease Mortality in Response to Air Pollution, 111 Envtl.

Health Persp. 1188 (2003), Francesca Dominici et al., Airborne Particu-

late Matter and Mortality: timescale effects in four US cities, 157 Am. J.

Epidemiology 1055 (2003).

" Daniela D’Ippoliti et al., Air Pollution and Myocardial Infarction

in Rome: a case-crossover analysis, 14 Epidemiology 528 (2003);

Antonella Zanobetti & Joel Schwartz, The Effect of Particulate Air

Pollution on Emergency Admissions for Myocardial Infarction: A

Multicity Case-Crossover Analysis, 113 Envtl. Health Persp. 978 (2005).

” Kristi B. Metzger et al., Ambient Air Pollution and Cardiovascu-

lar Emergency Department Visits in Atlanta, Georgia, 1993-2000, 15

Epidemiology 46 (2004); Shang-Shyue Tsai et al., Evidence for an

Association Between Air Pollution and Daily Stroke Admissions, supra

(Continued on following page)

9

patients suffering from acute respiratory ailments,” and

inflammation of lung tissue in otherwise healthy young

adults.” In addition, scientific evidence shows that chronic

exposure to PM can shorten life one to three years by

increasing the risk of dying from lung cancer and cardio-

vascular diseases,” as well as by inflicting significant

damage to the small airways of the lungs.”

Those at the greatest risk of adverse health effects

from chronic exposure to PM pollution include children (18

years and younger), the elderly (65 years and older), people

with chronic lung diseases (such as asthma, chronic bronchi-

tis, and emphysema), people with chronic cardiovascular

note 10; Gregory Wellenius et al., Particulate Air Pollution and

Hospital Admissions for Congestwe Heart Failure in Seven United

States Cities, 97 Am. J. Cardiology 404 (2006); Gregory Wellenius et al.,

Particulate Air Pollution and the Rate of Hospitalization for Congestive

Heart Failure among Medicare Beneficiaries in Pittsburgh, Pennsyl-

vania, i161 Am. J. Epidemiology 1030 (2005).

“* Stephen Van Den Eeden et al., Final Report to the California Air

Resources Board, Contract 97-303, Particulate Air Pollution and

Morbidity in the California Central Valley: a high particulate pollution

region (2002).

* Andrew J. Ghio et al., Concentrated Ambient Air Particles Induce

Mild Pulmonary Inflammation in Healthy Human Volunteers, 162 Am.

J. Respir. & Crit. Care Med. 981 (2000).

* C. Arden Pope III, Epidemiology of Fine Particulate Air Pollution

and Human Health: bwlogical mechanisms and who's at risk?, 108

Envtl. Health Persp. 713 (2000); C. Arden Pope III et al., Lung Cancer,

Cardiopulmonary Mortality, and Long-Term Exposure to Fine Particu-

late Air Pollution, 287 J. Am. Med. Ass’n 9 (2002); C. Arden Pope III et

al., Cardiovascular Mortality and Year-round Exposure to Particulate

Air Pollution: epidemiological evidence of general pathophysiological

pathways of disease, 109 Circulation 71 (2004).

" Andrew Churg et al., Chronic Exposure to High Levels of

Particulate Air Pollution and Small Airway Remodeling, 111 Envtl.

Health Persp 714 (2003).

10

disease, and people with diabetes.“ Children are among

the most vulnerable to continual exposure to PM, begin-

ning even before they are born and shaping the future of

their bodies’ ability to function. Chronic exposure to PM

has been linked to increased risk of premature birth and

slowed lung function growth in children and teenagers.”

Short-term increases in PM levels are especially harmful

to children, causing increased severity of asthma attacks

and increased hospitalization for asthma.”

* U.S. Environmental Protection Agency, Air Quality Criteria for

Particulate Matter, supra note 4; Antonella Zanobetti & Joe] Schwartz,

Are Diabetics More Susceptible to the Health Effects of Airborne

Particles?, 164 Am. J. Respir. & Crit. Care Med. 831 (2001).

Sharon K. Sagiv et al., A Time Series Analysis of Air Pollution

and Preterm Birth in Pennsylvania, 1997-2001, 113 Envtl. Health

Persp. 602 (2005); W. James Gauderman et al., Association between Air

Pollution and Lung Function Growth in Southern California Children:

results from a second cohort, 166 Am. J. Respir. & Crit. Care Med. 76

(2002); W. James Gauderman et al., The effect of air pollution on lung

development from 10 to 18 years of age, 351 New Engl. J. Med. 1057

(2004).

* James C. Slaughter et al., Effects of Ambient Air Pollution on

Symptom Severity and Medication Use in Children with Asthma, 91

Ann. Allergy Asthma & Immunology 346 (2003); Mei Lin et al., The

Influence of Ambient Coarse Particulate Matter on Asthma Hospitaliza-

tion in Children: case-crossover and time-series analyses, 110 Envtl.

Health Persp. 575 (2002); Gary Norris et al., An Association Between

Fine Particles and Asthma Emergency Department Visits for Children

in Seattle, 107 Envtl. Health Persp. 489 (1999); Paige E. Tolbert et al.,

Air Quality and Pediatric Emergency Room Visits for Asthma in

Atlanta, Georgia, 151 Am. J. Epidemiology 798 (2000).

11

B. Health Impacts of Nitrogen Oxides

In addition to PM, coal-burning power plants produce

nitrogen oxides, or NO_, a term referring to variant combina-

tions of nitrogen and oxygen atoms in the atmosphere.”

High-temperature combustion processes, such as those

occurring in coal-fired EGUs, motor vehicles, and heavy

equipment, are the primary outdoor sources of NO, emis-

sions.” Power plant NO, emissions’ most significant

impact occurs from their role as a precursor to PM and

ozone, but NO, emissions also directly harm human

health.”

1. Ozone

Ozone is a dangerous pollutant that forms when NO,

in the air combines with volatile organic compounds in the

presence of heat and sunlight.” Recent studies have shown

that acute exposure to ground level ozone can kill. Two

studies published in 2004, one looking at ninety-five cities

*” U.S. Environmental Protection Agency, Office of Air Quality

Planning and Standards, EPA/456/F-98-005, NO.; how nitrogen oxides

affect the way we live and breathe (1998), available at http://www.epa.

gov/oar/noxfidr. pdf.

* U.S. Environmental Protection Agency, Office of Air Quality

Planning and Standards, EPA/454/R-3-005, 2003 Special Trends Report

(2003) at 17.

* U.S. Environmental Protection Agency, Office of Air and Radia-

tion, EPA-452/R-97-002, Nitrogen Oxides: Impacts on Public Health and

the Environment (1997), U.S. Environmental Protection Agency, NO_:

how nitrogen oxides affect the way we live and breathe, supra note 21.

* U.S. Environmental Protection Agency, Office of Air and Radia-

tion, Office of Air Quality Planning and Standards, factsheet, Health

and Environmental Effects of Ground-Level Ozone (1997), at http://

www.epa gov/ttn/oarpg/naaqsfin/o3health html (last viewed on July 13,

2006).

12

across the United States and the other examining twenty-

three European cities, found that even on days when ozone

levels were below the current national standards, an

increase in ozone significantly increased the risk of prema-

ture death.” Three subsequent studies reviewed other

data and confirmed that short-term exposure to high

levels of ozone can shorten life.”

Premature deaths from exposure to ozone occur

because “/o]zone is capable of causing inflammation in the

lung at lower concentrations than any other gas, ...

[which] would be a hazard to anyone with heart failure

and pulmonary congestion, and would worsen the function

of anyone with advanced lung disease.” David V. Bates,

Ambient Ozone and Mortality, 16 Epidemiology 427, 428

(2005). In addition, research indicates that chronic ozone

exposure may lead to decreased lung function in the

general population.”

* See Michelle L. Bell et al., Ozone and short-term mortality in 95

US urban communities, 1987-2000, 292 J. Am. Med. Ass’n 2372 (2004);

Alexandros Gryparis et al., Acute Effects of Ozone on Mortality from the

“Air Pollution and Health: A European Approach” Project, 170 Am. J.

Respir. & Crit. Care Med. 1080 (2004).

* Michelle L. Bell et al., A Meta-Analysis of Time-Series Studies of

Ozone and Mortality with Comparison to the National Morbidity,

Mortality, and Air Pollution Study, 16 Epidemiology 436 (2005);

Jonathan I. Levy et al., Ozone Exposure and Mortality: An Empiric

Bayes Metaregression Analysis, 16 Epidemiology 458 (2005); Kazuhiko

Ito et al., Associations Between Ozone and Daily Mortality: Analysis and

Meta-Analysis, 16 Epidemiology 446 (2005); Steven N. Goodman, The

Methodologic Ozone Effect, 16 Epidemiology 430 (2005).

* Committee of the Environmental & Occupational Health

Assembly of the American Thoracic Society, Health effects of outdoor air

pollution, 153 Am. J. Respir. & Crit. Care Med. 3, 26-27 (1996); Audrey

Galizia & Patrick L. Kinney, Long-term Residence in Areas of High

Ozone, 107 Envtl]. Health Persp. 675 (1999).

13

Scientists have long recognized the harmful health

effects of ozone exposure, including shortness of breath,

chest pain when inhaling deeply, wheezing and coughing,

increased susceptibility to respiratory infections, and

increased risk of asthma attacks.” Children, senior citi-

zens, people who work or exercise outdoors, people with

lung diseases (such as asthma, chronic bronchitis, and

emphysema), and otherwise healthy people who have an

enhanced ozone reactions are especially vulnerable to the

effects of breathing ozone.”

For people with asthma, ozone exposure is especially

harmful, increasing the need for medical treatment and for

hospitalization.” Health experts warn that air pollution,

* ATS Comm., Health Effects of Outdoor Air Pollution, supra note

27.

* Helene Desqueyroux et al., Effects of Air Pollution on Adults

with Chronic Obstructive Pulmonary Disease, 6 Archives Envtl. Health

554 (2002); Peter Héppe et al., Environmental Ozone Effects in Different

Population Subgroups, 206 Int] J. Hygiene & Envtl. Health 505 (2003),

Ralph J. Delfino et al., Emergency Room Visits for Respiratory Illnesses

Among the Elderly in Montreal: Association with Low Level Ozone

Exposure, 76 Envtl. Res. 67 (1998); John M. Peters et al., A Study of

Twelve Southern California Communities with Differing Levels and

Types of Air Pollution II: Effects on Pulmonary Function, 159 Am. J.

Respir. & Crit. Care Med. 768 (1999), George D. Thurston et al.,

Summertime Haze Air Pollution and Children with Asthma, 155 Am. J.

Respir. & Crit. Care Med. 654 (1997); Patrick L. Kinney & Mortin

Lippmann, Respiratory Effects of Seasonal Exposures to Ozone and

Particles, 55 Archives Envtl. Health 210 (2000).

* Janneane F. Gent et al., Association of Low-Level Ozone and Fine

Particles with Respiratory Symptoms in Children with Asthma, 290 J.

Am. Med. Ass’n 1859 (2003); Helene Desqueyroux et al., Short-Term

Effects of Low-Level Air Pollution on Respiratory Health of Adults

Suffering from Moderate to Severe Asthma, 89 Envtl. Res. 29 (2002);

Richard T. Burnett et al., Association Between Ozone and Hospitaliza-

tion for Respiratory Diseases in 16 Canadian Cuties, 72 Envtl. Res. 24

(1997).

14

including ozone, is “one of the most under-appreciated

contributors to asthma exacerbation.” George D. Thurston

& David V. Bates, Air Pollution as an Underappreciated

Cause of Asthma Symptoms, 290 J. Am. Med. Ass’n 1915,

1915 (2003). Even at levels currently considered safe,

children with asthma are among those most vulnerable to

ozone pollution.” A recent study suggests that year-round

exposure to ozone may be associated with an increased

risk of the development of asthma in children.” While

more research is needed to confirm this finding, research-

ers tracked 3,500 students in Southern California and

found an increased onset of asthma in children who took

part in three or more outdoor activities in communities

with high levels of ozone.”

2. Nitrogen Dioxide

In addition to forming ozone and PM, NO, emissions

from coal-fired power plants can also directly harm human

health. Most NO, enters the atmosphere as nitrogen oxide

(NO) and then readily convert to nitrogen dioxide (NO,), a

reddish-brown gas that can become an important compo-

nent of urban haze.”

EPA has determined that short-term exposure to NO,

can lead to increases in respiratory diseases in children

* Janneane F. Gent et al., Association of Low-Level Ozone and Fine

Particles with Respiratory Symptoms in Children with Asthma, supra

note 30.

* See Rob McConnell et al., Asthma in Exercising Children

Exposed to Ozone, 359 Lancet 386 (2002).

* Id.

* U.S. Environmental Protection Agency, 2003 Special Trends

Report, supra note 22.

15

five to twelve years old, as well as coughing and increased

changes in airway responsiveness and pulmonary function

in adults with chronic lung diseases.” Long-term exposure

to NO, may lead to increased susceptibility to respiratory

infection and may cause emphysema-like lesions in the

lungs.” Research has also shown that healthy adult

women who are exposed to NO, experience an increase in

the severity of their subsequent response to ozone.”

Exposure to NO, emissions is particularly harmful to

children, weakening their defenses against respiratory

infection and reducing lung function.” In fact, research

suggests that children exposed to high levels of NO, may

become more susceptible to critical infections of the

respiratory tract.”

* U.S. Environmental Protection Agency, Research Triangle Park,

EPA-452/R-95-005, Review of the National Ambient Air Quality

Standards for Nitrogen Oxides: Assessment of Scientific and Technical

Information (1995); National Ambient Air Quality Standards for

Nitrogen Dioxide: Final Decision, 61 Fed. Reg. 52,852 (October 8, 1996)

(codified at 40 C.F.R. § 50).

* U.S. Environmental Protection Agency, Review of the National

Ambient Air Quality Standards for Nitrogen, Oxides, supra note 35.

” Milan J. Hazucha et al., Lung Function Response of Healthy

Women after Sequential Exposures to NO, and O,, 150 Am. J. Respir. &

Crit. Care Med. 642 (1994).

* W. James Gauderman et al., Association Between Air Pollution

and Lung Function Growth in Southern California Children, supra note

18.

* Leonardo Trasande & George D. Thurston, The Role of Air

Pollution in Asthma and Other Pediatric Morbidities, 115 J. Allergy &

Clinical Immunology 689 (2005).

16

C. Health Impacts of Sulfur Dioxide

Sulfur dioxide (SO,), a gaseous compound formed

largely by burning coal and oil containing sulfur, is an-

other pollutant emitted from coal-fired power plants that

has significant adverse health effects.“’ For most healthy

people, SO, appears to be a temporary irritant, generally

causing comparatively minor discomfort. However, if an

individual resides near a source of continuous SO, emis-

sions, such as a coal-fired power plant, the irritant can

become a persistent aggravation.”’ For people with

asthma, short-term exposures to high levels of SO, has

been linked to rapidly worsened asthma, increasing the

need for hospitalization.

Since SO, is often present with other pollutants in the

air, especially PM and ozone, exposure to SO, provides a

good example of how a combination of air pollutants may

increase the overall adverse health effects of air pollution.

In one study, researchers exposed teenagers with asthma

to ozone alone, SO, alone, and then ozone followed by SO,,

and found that the last combination triggered bronchial

reactions.” In addition, research suggests that increased

“ U.S. Environmental Protection Agency, 2003 Special Trends

Report, supra note 22, at 43.

“ American Lung Association, Health Effects of Outdoor Air

Pollution (1996) at 18.

“ Donald Horstman and Lawrence J. Folinsbee, Sulfur dioxide-

Induced Bronchoconstriction in Asthmatics Exposed for Short Durations

under Controlled Conditions: A Selected Review, in Susceptibility to

Inhaled Pollutants (M. Utell & R. Frank eds., 1989); Jordi Sunyer et al.,

Urban air pollution and Emergency Admissions for Asthma in Four

European Cities: the APHEA Project, 52 Thorax 760 (1997).

“ See Jane Q. Koenig et al., Prior Exposure to Ozone Potentiates

Subsequent Response to Sulfur Dioxide in Adolescent Asthmatic

Subjects, 141 Am. Rev. Respir. Disease 377 (1990).

17

levels of SO, pollution in the air, in conjunction with PM,

may trigger a small but measurable loss of lung function

in children.“

D. Social Welfare Impacts of Emissions from

Coal-Fired Electric Generating Units

In addition to direct adverse health effects, air pollu-

tion caused by emissions from coal-fired power plants

produces serious social welfare impacts. The costs associ-

ated with the myriad of health effects of air pollution are

staggering. For example, air pollution from coal-fired

power plants in the Midwest has been associated with $25

billion per year in health costs.“ Air pollution also inflates

social welfare costs through increased hospital admissions.

Increases in coarse PM (PM.,,) and nitrogen dioxide (NO,)

pollution are associated with increased hospital admis-

sions for cardiovascular disease.“ Patients diagnosed with

arrhythmia or congestive heart failure are particularly

likely to be admitted to the hospital during periods of high

air pollution.” In addition to hospital admissions, in-

creased air pollution can also result in increased costs

“ Douglas W. Dockery et al., Change in Pulmonary Function in

Children Associated with Air Pollution Episodes, 32 J. Air Pollution

Control Ass’n 937 (1986); Willem R. M. Dassen et al., Decline in

Children’s Pulmonary Function During an Air Pollution Episode, 36 J.

Air Pollution Control Ass’n 1223 (1986).

“ World Watch Institute, World Watch Paper #94, Cleaning the Air:

A Global Agenda (1994) at 12.

“ William S. Linn et al., Air Pollution and Daily Hospital Admis-

sions in Metropolitan Los Angeles, 108 Envtl. Health Persp. 427 (2000).

* Jennifer K. Mann et al., Air Pollution and Hospital Admissions

for Ischemic Heart Disease in Persons with Congestive Heart Failure or

Arrhythmia, 110 Envtl. Health Persp. 1247 (2002).

18

associated with standard doctors’ office visits, treatment of

respiratory illnesses, and lost work days.“

Because of the particular vulnerability of children to

air pollution, another serious social and economic impact

resulting from air pollution is lost school days. A recent

study found that increases in ozone led to an increase in

illness-related, particularly respiratory-based, absences

from school.“ Such school absences are costly to students,

educators, and parents. Students who miss school are

likely to suffer academically and to frustrate educators’

efforts to teach them. Parents of childrun who are too sick

to go to school often face a dilemma between missing work

in order to care for their children, leaving their sick

children home alone, or locating childcare, a resource that

is extremely scarce and costly.

E. Public Health and Social Welfare Impacts

of Air Pollution in the Carolinas

Of particular importance in this case, air pollution

from coal-fired power plants harms the health and social

welfare of people living in North Carolina and South

Carolina (collectively, “the Carolinas”). EPA data for the

“ See, e.g., Miriam G. Cisternas et al., A comprehensive study of

direct aid indirect costs of adult asthma, 111 J. Allergy & Clinical

Immunology 1212 (2003) (estimating that adult asthma patients spend

an average of $5,000 annually on asthma related expenses); California

Environmental Protection Agency, Air Resources Board, Recent

Research Findings (2004) at 4, available at http://www.arb.ca.gov/

research/health/fs/pm-03fs.pdf (estimating that air pollution in Califor-

nia results in about 2.8 million lost work days per year).

* See Frank D. Gilliland et al., The Effects of Ambient Air Pollution

on School Absenteeism Due to Respiratory Illness, 12 Epidemiology 43

(2001).

19

2005 operating year show that coal-fired power plants in

North Carolina emitted 500,935 tons of SO, and 114,299

tons of NO..” In South Carolina, coal-fired power plants

emitted 217,385 tons of SO, and 53,403 tons of NO, in

2005."

Contributing to the air pollution in the Carolinas are

the eight coal-fired power plants operated by Duke that

are at issue in this case (seven are located in North Caro-

lina, and one is located in South Carolina). Data collected

by EPA show that the Duke plants emitted 310,000 tons of

SO, and 59,187 tons of NO, in 2005 — more than one-third

of the total emissions of these pollutants in the Carolinas.”

Emissions of SO,and NO, from coal-fired power plants in

* US. Environmental Protection Agency, Clean Air Markets - Data

& Maps: Where You Live, at http://cfpub.epa.gov/gdm/index.cfm?fuse

action=whereyoulive.nation (follow “North Carolina” link) (last viewed

on July 13, 2006).

*' Jd. (follow “South Carolina” link) (last viewed on July 13, 2006).

®@ U.S. Environmental Protection Agency, Clean Air Markets - Data

& Maps: Facility Emissions Report, at http://cfpub.epa.gov/gdm/index.

cfm?fuseaction=emissions.wizard (follow “Monitoring Location Level

Emissions” link) (last viewed on July 13, 2006). The EPA website

generated the following report for the eight Duke facilities at issue:

Facility Facility So, NO,

State (Name ID Year Tons Tons

NC Belews Creek /|8042 2005 96,.812.7 20.419.3

NC Buck 2720 2005 9,581.8 2,260.2

NC Cliffside 2721 2005 28,209.1 3,986.7

NC Dan River 2723 2005 4,248.3 1,611.2

NC G G Allen 2718 2005 45,4243 8,324.5

NC Marshall 2727 2005 100,540.4 |17,534.5

NC Riverbend 12731 2005 13,964.0 2,619.7

SC iW S Lee 13264 2005 |11,219.7 —‘|2,431.1

TOTAL (310,000.3 /|59,187.2

20

the Carolinas not only harm human health directly, but

they also contribute to the further formation of dangerous

PM and ozone.

Using EPA emissions data and relevant scientific

research, researchers from Abt Associates were able to

assess the direct health impacts of air pollution from

power plants in individual states.” See Abt Associates,

Inc., The Particulate-Related Health Benefits of Reducing

Power Plant Emissions (October 2000) [hereinafter “Abt

Study”), available at http://www.abtassociates.com/reports/

particulate-related.pdf. That study found that air pollution

from coal-fired power plants had a negative impact on

public health and social welfare throughout the nation.

See generally id. at 1-1 to 1-2, and 6-10. With regard to the

Carolinas, the Abt Study estimated that air pollution from

coal-fired power plants in South Carolina annually con-

tributes to approximately 800 deaths, 500 hospitalizations,

599 new cases of chronic bronchitis, and 16,600 asthma

attacks, about 200 of which lead to emergency room (“ER”)

visits. Jd. at 6-10. In North Carolina, the estimated yearly

health effects of air pollution from coal-fired power plants

are even more astounding, contributing to roughly 1,800

deaths, 1,200 hospital admissions, 1,100 cases of chronic

bronchitis, and 37,000 asthmas attacks, nearly 450 of

which lead to ER visits. Jd.

In addition to direct health effects, people living in the

Carolinas experience serious social and economic impacts

from air pollution. For example, the Abt Study estimated

* Abt Associates is a scientific research and policy analysis

consulting firm that EPA has employed to conduct research regarding

air pollution. Abt Study at i.

21

that, each year, air pollution from power plants results in

about 322,000 lost work days in North Carolina and

141,000 lost work days in South Carolina. /d. Air pollution

can also lead to days in which people do not feel able to

participate fully in their normal activities and must

restrict their behavior. See Abt Study at 5-25 (discussing

“minor restricted activity days” or MRADs). The Abt Study

estimated that each year, air pollution from power plants

leads to 721,000 restricted activity days in South Carolina

and 1,640,000 restricted activity days in North Carolina.

Id. at 6-10.

Any increase in air pollution from the Duke power

plants can only make these statistics worse in the Caroli-

nas, especially for the people living, working, learning, and

playing in communities near the plants. Moreover, air

pollution from these plants will also harm the public

health and welfare of communities that are downwind

from the emissions.”

II. The Fourth Circuit’s Interpretation of a PSD

“Modification” Is Inconsistent with Congres-

sional Intent and Would Adversely Affect Pub-

lic Health and Welfare.

Finding that air pollution had resulted in “mounting

dangers to the public health and welfare,” Congress

enacted the CAA “to protect and enhance the quality of the

™ See Abt Study at E-2 (discussing calculation of impacts due to

downwind air pollution); U.S. Environmental Protection Agency, Air

Trends: International Issues & ''.S. Air Quality, at http:/Awww.epa.gov/

airtrends/international.html (last viewed July 19, 2006) (noting that

downwind flow of air pollution in the U.S., Canada, and Mexico is “well

known and documented”).

22

Nation’s air resources so as to promote the public health and

welfare and the productive capacity of its population.” 42

U.S.C. §§ 7401(a)X(2), (b\(1) (2004). However, these congres-

sional goals are undermined by the Fourth Circuit’s holding

that EPA must use the same regulatory test to determine

whether facility “modifications” are subject to the PSD, 42

U.S.C. § 7470 (2004), and New Source Performance Stan-

dards (“NSPS”), 42 U.S.C. § 7411 (2004), programs.

In passing the Clear Air Act Amendments of 1977,

Congress understood that the “maximum feasible protec-

tion of the public health” occurs only when sources of

pollution were subjected to both the NSPS and PSD

programs.” CAA 1977 Legis. History at 6634 (finding of

the House Committee on Interstate and Foreign Com-

merce). It is illogical to interpret the term “modification”

the same in both the PSD and NSPS programs, given

Congress’s understanding in 1977 that a new program —

one specifically designed to protect public health and

welfare in areas that had attained the NAAQS - was

needed to supplement the NSPS program.

Because the NSPS program does not consider the site-

specific air quality impacts of a source’s emissions, 42

U.S.C. § 7411(b) (2004), prior to the PSD program, new

“ New source review (“NSR”) was incorporated into the CAA in

1977 to prevent new or modified sources of pollution from increasing

their emissions in a way that would further deteriorate air quality in a

community. PSD (Part C) is one component of the NSR program and

applies to new or modified sources in areas that are in attainment with

the NAAQS. The other component of NSR is nonattainment NSR (Part

D), which provides emission requirements for new or modified sources

in areas that have not attained the NAAQS. See New York v. U.S.

Environmental Protection Agency, 413 F.3d 3 at 12-13 (describing NSR

program).

23

and modified coal-fired power plants located in relatively

unpolluted areas could comply with NSPS and still emit

enough pollution to degrade local air quality, CAA 1977

Legis. History at 723-28 (statements of Sen. Muskie, chief

Senate sponsor of the 1977 amendments). See also Wiscon-

sin Elec. Power Co. v. Reilly, 893 F.2d 901, 904 (7th Cir.

1990) (noting that the NSPS program had “varying de-

grees of success in controlling pollution in different parts

of the country”). Accordingly, Congress enacted the PSD

program “to protect the public’s health” by ensuring that

emissions from new and modified facilities located in “so-

called clean air areas” would not cause regional air quality

to decline to the minimum level permitted under the

NAAQS. CAA 1977 Legis. History at 6634 (statement of

the House Committee on Interstate and Foreign Com-

merce).

Instead of requiring a PSD permit for any physical or

operational change in an emitting facility that would

result in a significant net increase in the annual emissions

of regulated pollutants, 40 C.F.R. §51.166(b) (2005)

(regulatory definition of PSD “modification”), the Fourth

Circuit’s ruling would require a PSD permit only when a

physical or operational change results in an increase in

the facility’s hourly rate of pollution emissions, 40 C.F.R.

§ 60.14(a) (2005) (regulatory definition of NSPS “modifica-

tion”). Under such a rule, old coal-fired power plants could

undergo refurbishment projects that markedly increase

their overall] annual emissions and further degrade air

quality without receiving a permit from EPA, so long as

the plants’ hourly rate of emissions remain the same. The

resulting public health harms and social welfare costs, see

generally discussion §1, supra, are antithetical to the

24

CAA’s central goal of protecting public health and welfare

by improving air quality.

The modifications of the Duke coal-fired power plants

at issue in this case are just the type of projects that

Congress intended to be subject to the PSD program.

While the refurbished Duke facilities have not increased

their hourly rate of emissions under the NSPS program,

they are located in NAAQS attainment areas and, under

the challenged regulation, would have been required to

install additional PSD pollution contgals to decrease the

total amount of pollution the upgraded EGUs will emit to

the surrounding area.” Such controls would improve, or at

least maintain, the overall air quality in the areas sur-

rounding and downwind of the plants, as well as prevent

exacerbation of the severe health effects of air pollution

already experienced by people in the Carolinas and be-

yond. See discussion § I(E), supra; see also CAA 1977

Legis. History at 4950 (Statement of Sen. Buckley) (noting

that the PSD program “lessens the danger that an upwind

State will impose its pollution on a neighbor”) and 4525

(statement of Sen. Muskie) (discussing concern of the

National Academy of Sciences “that emissions 300-miles

upwind could still contribute to problems in major cities”).

Allowing old coal-fired power plants to undertake

major renovations without being required to install the

“ Refurbished coal-fired plants will increase the amount of

pollution emitted to the atmosphere by extending their operating life,

thus forestalling the construction of new coal-fired plants that would be

subject to more stringent CAA emission requirements. Additionally,

since it also may make more economic sense to use refurbished plants

as base load sources of electric power rather than for peaking purposes,

there will be emissions of harmful air pollutants for more hours per day

and/or during off-peak hours, when before there had been none.

25

more stringent pollution controls mandated by the PSD

program undermines Congress’s goal of protecting public

health and welfare from increased air pollution. Long-term

increases in air pollution will occur when a deteriorated

Duke EGU is refurbished to extend its operational life for

another 20 years, thereby raising the levels of PM and

ozone in the air and increasing the risk of premature

death in adults and asthma hospitalizations for children

exposed to emissions from the plant. See discussion § I(A)

and (B)(1), supra. Even short-term increases in pollution

emissions, such as might occur when a Duke coal-fired

power plant operates a few hours longer each day than it

did prior to renovations, lead to increases in respiratory

diseases in children exposed to NO, as well as rapidly

worsened asthma for people exposed to SO,. See discussion

§ 1(B)(2) and (C), supra.

In addition, overall degradation of air quality due to

the increased emissions from the refurbished Duke power

plants could cause more missed school days for asthmatic

children and more lost work days for adults, particularly

in the Carolinas. See discussion § I(D) and (E), supra.

Thus, the Fourth Circuit’s ruling would inhibit, instead of

promote, the “productive capacity” of the surrounding

community. 42 U.S.C. § 7401(b)(1) (2004).

Allowing coal-fired power plants to undergo changes

that increase their net annual emission of pollution

without undergoing PSD review contravenes the legisla-

tive purpose of the PSD program - to prevent deterioration

of air quality in order to protect public health and welfare

better. See Alabama Power Co. v. Costle, 636 F.2d 323, 401

(D.C. Cir. 1979) (finding that the intent of the PSD provi-

sions “is succinctly stated by the title of that part: ‘Preven-

tion of Significant Deterioration of Air Quality’”) (citing 42

26

U.S.C. § 7470). The occurrence and severity of adverse

health effects caused by air pollution, and the economic

and social welfare costs that accompany them, are directly

related to the total amount of harmful pollutants inhaled.

See generally discussion § I, supra. Accordingly, the goals

of the CAA are best implemented though programs that

reduce the overall emission of harmful pollutants. Con-

trary to the Fourth Circuit’s holding, Congress has clearly

enacted, and EPA has correctly implemented, a PSD

program that serves to protect the public health and

welfare from the harms of increased air pollution.

¢

CONCLUSION

For the foregoing reasons, the Court should reverse

the Fourth Circuit Court of Appeals’ decision.

Respectfully submitted,

Hope M. Bascock, Director

Counsel of Record

KrisTI M. SMITH, Staff Attorney

INSTITUTE FOR PUBLIC REPRESENTATION

Georgetown University Law Center

600 New Jersey Avenue, N.W., Suite 312

Washington, D.C. 20001

Phone: 202-662-9535

Fax: 202-662-9634

Attorneys for Amici