# Amicus Curiae Brief — United Haulers Ass'n v. Oneida-Herkimer

> Briefs, arguments, decisions, and more.

URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385016_0252%3A12

## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Curiae Brief
- **Published:** January 1, 2007
- **Citation:** 550 U.S. 330

## Text

a \
‘ / e
-

No. 05-1345

i ‘
)
_@®

—

— =

IN THE

Supreme Court of the United States

UNITED HAULERS ASSOCIATION, INC., et a/.,

Petitioners,
y.

ONEIDA-HERKIMER SOLID WASTE
MANAGEMENT AUTHORITY, et al,

Respondents.

On Writ oF CERTIORARI TO THE
Unirep STaTes CourRT OF APPEALS FOR THE SECOND CIRCUIT

BRIEF OF AMICUS CURIAE ENVIRONMENTAL
DEFENSE IN SUPPORT OF RESPONDENTS

Micuaet J. BEAN
Counsel of Record

JAMES T.B. TRIPP

ISABELLE SILVERMAN

J. CULLEN Howe
Environmental Defense
257 Park Avenue South
New York, New York 10010
(212) 505-2100

Counsel for Amicus Curiae

2052 66 ce

COUNSEL PRESS

(ROD) 274-3327] © ROO) 359-6859

i

TABLE OF CONTENTS

SEE wie vidne besensueias bancweessaue’s
SUMMARY OF ARGUMENT .................
SE. in cdiakannststcgeiadanatavades

I. THE PROBLEM OF WASTE DISPOSAL IN
THES UNITED STATES ........ccceeese

ll. THE COMPONENTS OF THE COUNTIES’
FLOW CONTROL REGULATIONS ......

Ill. THE RESPONDENTS’ FLOW CONTROL
REGULATIONS PROVIDE A WIDE
ARRAY OF IMPORTANT HEALTH AND
ENVIRONMENTAL BENEFITS TO
THE RESIDENTS OF ONEIDA AND
HERKIMER COUNTIES ...............

A. The Counties’ Flow Control Regulations
Provide Important Environmental and
Health Benefits to the Residents of
Oneida and Herkimer Counties. ......

B. The Respondents’ Flow Control
Ordinances Benefit the Counties’
Residents By Reducing Their Exposure
to Diesel Emissions. ..........>....

EE GA'de san bh sqaabocn bossadhedses

Page

ii

TABLE OF CITED AUTHORITIES
Page

CASES
Pike v. Bruce Church, 397 U.S. 137 (1970) ....... 3

United Hauler Association, Inc. v. Oneida-Herkimer
Solid Waste Management Authority, 438 F.3d 150
PT EES 6 6 Uae Kee ned Kee hdecaswews 5 2

STATUTES
42 U.S.C. § 6901(a)(4) (2000) ........... bite 9
WORE SUNN oo is cos ais hac. Seuleee
OTHER AUTHORITIES

Clean Air Task Force, Diesel Soot Health Impacts:
Oneida County, New York, available at
http://www.catf.us/projects/diesel /dieselhealth/
county.php?c=3606S5&site=0 ................ 13-14

Comm. on Envir. Health, Am. Acad. of Pediatrics,
Ambient Air Pollution: Health Hazards to
Children, 14 Pediatrics 1699, 1702-1707 (2004),
available at http://pediatrics.aappublications.org/
cgi/content/full/114/6/1699#RS. ............. 13

Energy Info. Admin., U.S. Dep’t of Energy, Publ’n
No. DOE/EIA-0573, Emissions of Greenhouse
Gases in the United States 2005 (2005), available
at http://www.eia.doe. gov /oiaf/1605/ggrpt/
i. pis be) Sate hawea eka de ade 15

\“

lil

Cited Authorities

Envt’l Prot. Agency, About EPA: Regions, http://
www.epa.gov/epahome/locate2.htm (last visited
TA cc sc cdehdes dcueneetnebeceens

Envt’l Prot. Agency, Clean Diesel Campaign, http:/
oe ae

National Ambient Air Quality Standards for
Particulate Matter; Proposed Rule, 71 Fed. Reg.
2620, 2627 (January 17, 2006) ...............

National Ambient Air Quality Standards for
Particulate Matter; Final Rule, 71 Fed. Reg.
61144, 61151 (October 17, 2006) .............

N.Y. Envtl. Conserv. Law § 27-0106(1) (McKinney
Ni cniek bb sh6 550 eehe wan eee seen eee

N.Y. State Dep’t of Health, EPSD/CTHP Provider
Manual for Child Health Plus 81 (2005), available
at http://www.emedny.org/ProviderManuals/
EPSDTCTHP/PDFS/EPSDT-CTHP.pdf

SSC Oeese See SECO OO CC ee Ceres Oe OO 4 OF Ge eae ae o's &

Office of Air Quality and Prot. Standards, Envt’! Prot.
Agency, 8-Hour Ground-level Ozone
Designations: Region 2: State Designations
(2004), http://www.epa.gov/ozonedesignations/

regions/region2desig.htm (last visited Dec. 5,
MEE obese bares eerie Ub Oboes “2 eee ee

Page

iv

Cited Authorities
Page

Office of Air Quality and Prot. Standards, Envt’! Prot.
Agency, 8-Hour Ground-level Ozone
Designations: Region 3: State Designations
(2004), http://www.epa.gov/ozonedesignations/
regions/region3desig.htm (last visited Dec. 5,
DE Sis ke cdc dubeukds Wash eeeay ete tens tba 16-17

Office of Air Quality and Prot. Standards, Envt’! Prot.
Agency, Fine Particle (PM 2? _ Designations: |
Region 2: State Designations (2004), http://
epa.gov/pmdesignations/regions/
region2desig.htm (last visited Dec. 5, 2006) .... 16

Office of Air Quality and Prot. Standards, Envt’! Prot.
Agency, Fine Particle (PM 2.5) Designations:
Region 3: State Designations (2004), http://
epa.gov/pmdesignations/regions/
region3desig.htm (last visited Dec. 5, 2006) .... 16

Office of Research and Dev., U.S. Envtl. Prot.
Agency, Publ’n No. EPA/600/8-90/057F, Health
Assessment for Diesel Engine Exhaust, p. 1-1
(2002), available at http://cfpub.epa.gov/ncea/
cfm/recordisplay.cfm?deid=29060. .......... 13,14

Office of Solid Waste, U.S. Envtl. Prot. Agency,
Municipal Solid Waste in the United States: 2005
Facts and Figures \-2 (2006), available at http:/
/www.epa.gov/epaoswer/non-hw/muncpl/
asses dl sphutcds didn ehetidgues 5

Vv

- Cited Authorities
Page
U.S. Dep’t of State, U.S. Climate Action Report 2002,

27-30, Fig. 3-1, Table 3-1 (2002), available at
http://www.gcrio.org/CAR2002/car2002ch3.pdf

“ we
nlite’ fa ,

y

nae —h a),

‘Oe ee 714)

: 7 s
a

ea oy

ae

|

STATEMENT OF INTEREST OF AMICUS CURIAE'

Environmental Defense is a leading national nonpiviit
organization representing more than 500,000 members
nationwide. Since its founding in 1967, Environmental
Defense has linked science, economics and law to create
innovative, equitable and cost-effective solutions to society’s
most urgent environmental problems. Environmental Defense
is dedicated to assuring that all people, including future
generations, enjoy clean air, clean water, healthy food and
flourishing ecosystems. Environmental Defense is guided by
scientific evaluation of environmental problems, and the
solutions it advocates are based on science. :

Pursuant to its mission, Environmental Defense is
interested in municipal waste management plans that
emphasize recycling and waste reduction and promote
transport of waste and recyclables by water or rail, rather
than by truck, in urban areas where these options are available
in order to reduce urban traffic congestion, minimize negative
air quality impacts, and otherwise serve human health and
environmental purposes. Because government entities are
able to take environmental considerations into account in
devising their solid waste management strategies, they are
often in the best position to design and implement
environmentally responsible solid waste management
systems. Environmental Defense supports the waste

' Pursuant to this Court’s Rule 37.6, no portion of this brief
was authored by counscl for a party, and no person or entity other
than the amicus curiae has made a monetary contribution to the
preparation or submission of this brief. The Petitioners and the
Respondents have both consented to the filing of this brief and their
respective letters of consent have been filed with the Clerk of the
Court.

2

management plan at issue here because it provides many
tangible environmental and air quality benefits to the
residents in Oneida and Herkimer Counties (the “Counties”.
Most importantly, the flow control regulations are essential
to the Counties’ successful implementation of their waste
management plan. Many other municipalities, such as New
York City, could reduce the environmental burdens of their
waste system if they could exercise increased control over
the flow of commercial sector waste.

SUMMARY OF ARGUMENT

The United States produces almost 250 million tons of
trash per year, the vast majority of which is put into landfills.
Many communities, particularly urban ones such as New York
City, have reached the point where they have to transport
their waste hundreds of miles so it can be put into landfills
with available capacity. While this has resulted in a thriving
waste transport business, it has led to a dependency on truck-
_based means of transporting this waste, with little municipal
control over the emissions from private sector trucks, most
of which pre-date any effective federal regulations,
exacerbating traffic congestion and air pollution.
Municipalities like New York City have an interest in
fostering a solid waste system that minimizes air pollution
and traffic congestion. Flow control is one of the most
effective ways of accomplishing these goals.

The purpose of this brief is not to add to the legal
arguments of respondents and other amicus parties that
support the position of the respondents that the Second
Circuit in United Hauler Association, Inc. v. Oneida-
Herkimer Solid Waste Management Authority, 438 F.3d 150
(2™ Cir. 2006) (“United Haulers II”) correctly applied the

3

balancing test that this Court enunciated in Pike v. Bruce
Church, 397 U.S. 137 (1970) in analyzing the respondents’
flow control regulations. Under this test, courts will uphold
a challenged regulation unless it places a burden on interstate
commerce that is clearly excessive when compared to the
putative local benefits. While, in our view, the Second
Circuit’s analysis is sound, and the challenged regulations
do not treat similarly situated in-state and out-of-state
business interests differently, the purpose of this brief is to
highlight the very significant environmental and
environmental justice benefits that can be derived through

properly designed municipal flow control programs.

The Second Circuit held that such local benefits included
a waste management system that encourages waste volume
- reduction, recycling and reuse and ensures the proper disposal
of hazardous waste. Environmental Defense submits this
amicus brief in support of respondents because, whether the
Court applies the Pike balancing test or any more stringent
standard to the challenged regulations, it is vitally important
that it consider the full measure of environmental benefits
that they provide to the Counties’ residents, and the benefits
that similarly enacted flow control regulations can provide
to residents in other communities.

The flow control provisions at issue here are an integral
part of the waste management plan implemented by Oneida-
Herkimer Solid Waste Management Authority (the
“Authority”). They provide for maximum levels of waste
reduction and recycling. To this end, the regulations require
that waste generators separate their recyclable material and
make it available for delivery to the Authority. Non-recyclable
waste is brought to the Authority’s transfer station. It is first
inspected to ensure that it does not contain any hazardous

4

waste and it is then transported to its ultimate disposal site
by a contractor chosen by the Authority. These regulations
are consistent with both federal and state policy concerning
waste disposal.

By encompassing these state and federal policies, the
regulations provide numerous benefits to the Counties’
residents, including minimizing the amount of waste that is
hauled by trucks, thereby reducing the amount of diesel fuel
that the Counties’ residents are exposed to; providing reliable
waste management service while protecting the public health,
safety and welfare; replacing high volume, undifferentiated
waste disposal methods with a system that matches the best
management method to each component of solid waste;
making waste reduction and recycling legally mandated top
priorities for solid waste management; establishing and
expanding markets for recyclables; and conserving vital
natural resources.

The regulations provide many environmental, economic
and social benefits. Since 1989, the Counties’ recycling rate
has increased fourfold. Over the last seventeen years over,
700,000 tons of materials have been recycled. Approximately
50% of all solid waste collected by the Authority is recycled
instead of being landfilled. Of this amount, over 370,000
tons of recyclable material have been processed and sold,
generating millions of dollars for the Authority’s solid waste
management system. It has also ensured the proper and safe
disposal of hazardous waste. Finally, because a portion of
this recycled material is sold, the regulations have realized
the additional benefit of reducing the extraction of natural
resources.

5

The respondents’ flow control regulations also provide
significant air quality and health benefits for the Counties’
residents because they minimize the number of trucks used
to transport waste, and reduce the number of miles traveled
by each truck, because solid waste is disposed of locally.
Most garbage trucks run on diesel fuel, and it is well
documented that diesel emissions are harmful to human
health and contribute substantially to local air pollution.
Diesel exhaust is a major contributor of the cancer risk from
air toxins in the United States. Exposure to diese] exhaust
can also contribute to short and long-term health hazards,
such as asthma, cardiovascular and respiratory problems,
strokes, heart attacks, lower birth weight and even premature
death.

ARGUMENT

I. THE PROBLEM OF WASTE DISPOSAL IN THE
UNITED STATES

According to the United States Environmental Protection
Agency, from 1960 to 2005, the total amount of municipal
solid waste generated annually in the United States increased
from 88 million tons to 245.7 million tons, slightly less than
one ton of trash for each American. See Office of Solid Waste,
U.S. Envtl. Prot. Agency, Municipal Solid Waste in the United
States: 2005 Facts and Figures \-2 (2006), available at http:/
/www.epa.gov/epaoswer/non-hw/muncpl/msw99.htm. This
averages to approximately 4 ‘2 pounds of trash per person
per day. Although some of this waste is recycled, the vast
majority of it is put into landfills. While the per capita
generation rate of municipal solid waste is slowly leveling
off, the total amount of solid waste that must be disposed of
each year continues to increase. See id. Unless innovative

6

approaches such as the Authority’s are adopted, continual
construction and expansion of landfill capacity will be
needed, which in turn steadily increases the consumption of
land for disposal.

Many communities, particularly high density urban areas
such as New York City, have reached the point where they
do not have the facilities to dispose of their solid waste locally
and must therefore transport the vast majority of it hundreds
of miles so it can be put in landfills with available capacity.
While this has resulted in a thriving waste transport business,
it has led to most commercial waste in New York City being
transported by private charter collection trucks to land-based
transfer facilities concentrated in low-income communities
and then exported to out-of-state facilities via private firm,
long-haul trucks. Since most of these privately operated
trucks have been in use for years and will be in use for many
more years, their diesel emissions are not effectively
regulated. This truck dependency exacerbates road congestion
and air pollution. It also negatively impacts the health of
residents in communities where these facilities are located.
In New York City hundreds of garbage trucks are clogging
already congested streets. It is not uncommon to see garbage
trucks from several different commercial waste haulers
service businesses on the same street. Municipalities such
as New York City have an interest in fostering a solid waste
system that minimizes air pollution and traffic congestion
by, among other things, encouraging marine or rail transport
as a way of reducing waste truck vehicular miles traveled.
Flow control is one of the most effective ways of
accomplishing these environmental and social goals.

Because environmental concerns are an inherent part of
waste creation and disposal, it is appropriate for municipal

7

governments to assert control over waste created in their
community, and flow control is an essential tool in ensuring
that this waste is disposed of in an environmentally
responsible manner.

Il. THE COMPONENTS OF THE COUNTIES’ FLOW
CONTROL REGULATIONS

The flow control provisions at issue here were included
in Oneida County Local Law #1 of 1990 and Herkimer
County Local Law #1 of 1990 (the “Regulations”). Pet. App.
118a-130a (Oneida County Ordinance), 13 1a-143a (Herkimer
County Ordinance). They are an integral part of the
comprehensive waste management plan implemented by the
Authority, a public benefit corporation created in the late
1980’s. In general, the Regulations establish fundamental
responsibilities for each citizen, waste generator,
municipality and hauler. To this end, they “provide for
maximum levels of waste reduction and recycling, coupled
with the development of environmentally and economically
sound programs and facilities for the remainder of the waste
stream.” JA144a.

A primary component of the Regulations is recycling and
waste reduction. The Regulations require both waste source
separation by waste generators and delivery of these
segregated materials to various county-designated public
facilities by all public and private waste haulers. By charging
for the disposal of solid waste, while accepting recyclables
at no cost, the Regulations concomitantly encourage waste
reduction and recycling. They also provide funding for a wide
range of waste reduction, recycling facilities and programs.

8

The Regulations require that every waste generator
(citizens, businesses, etc.) provide for the proper disposal of
all waste that they generate by requiring them to separate
recyclable from non-recyclable waste before collection by
waste haulers. Although waste generators may have
recyclables sent directly to a buyer outside of the Authority’s
system, if they do not make such an arrangement, they must
place recyclables at the curbside for delivery to the Authority.
JA 358a.

The Regulations further mandate that private haulers
deliver all acceptable non-recyclable materials and all
curbside recyclables generated within the Counties to the
Authority’s recycling facility. Once the recyclables are
delivered to the facility, they are processed and ultimately
sold to buyers all over the world. The Authority recycles 33
types of waste products, many of which are not commonly
recycled by other public or private waste management
programs. JA 378a-79a.

Nonrecyclable waste is brought to the Authority’s
transfer stations. The waste is inspected to ensure that it does
not contain any dangerous or hazardous materials and to
ensure that haulers and generators comply with the
Regulations’ recycling requirements. Following the
inspection, the waste is consolidated to facilitate
transportation to its ultimate disposal site by a contractor
chosen by the Authority through an open, competitive bidding
process. To ensure that this waste is disposed of in an
environmentally responsible manner, the Authority has, in
the past, selected a contractor that demonstrates “the requisite
experience and skill in the necessary technologies, and
propos[es] a plan that provides the most cost-effective

( 9

method of disposing of solid waste with maximum protection
of human health and the environment.”” JA 259a.

The Regulations are consistent with both federal and state
policy concerning solid-waste disposal. The Resource
Conservation and Recovery Act (“RCRA”), states that “the
collection and disposal of solid wastes should continue to
be primarily the function of State, regional, and local
agencies.” 42 U.S.C. § 6901(a)(4) (2000). Although RCRA
establishes national solid waste goals and standards, it places
primary responsibility on the States to develop solid waste
management plans that promote recycling, energy recovery,
resource conservation, and environmentally sound disposal
methods. 42 U.S.C. § 6943(b). Consistent with RCRA’s
mandate, New York State has established four statewide
management priorities with regard to solid waste: (1) reduce
the amount of solid waste generated; (2) reuse material for
the purpose for which it was originally intended or recycle
material that cannot be reused; (3) recover, in an
environmentally acceptable manner, energy from solid waste
that cannot be economically and technically reused and
recycled; and (4) dispose of solid waste that is not being
reused, recycled or from which energy is not being recovered,
by land burial or other methods approved by the department.
N.Y. Envtl. Conserv. Law § 27-0106(1) (McKinney 2006).
The Regulations are consistent with these federal and state
policies.

? As of October 24, 2006, the Authority’s solid waste landfill,
located in Oneida County, was completed and began receiving waste.
Starting January 1, 2007, all non-hazardous, non-recyclable waste
from the Counties will be landfilled there. Resp. Br. at 1.

10

Ill. THE RESPONDENTS’ FLOW CONTROL
REGULATIONS PROVIDE A WIDE ARRAY OF
IMPORTANT HEALTH AND ENVIRONMENTAL
BENEFITS TO THE RESIDENTS OF ONEIDA
AND HERKIMER COUNTIES.

The flow control Regulations provide numerous
environmental benefits to the residents of Oneida and
Herkimer Counties. Such benefits include minimizing the
amount of waste that is hauled by trucks, thereby reducing
the amount of diesel fuel that the Counties’ residents are
exposed to; providing reliable waste management service
while protecting the public health, safety and welfare;
replacing high volume, undifferentiated waste disposal
methods with a system that matches the best management
method to each component of solid waste; making waste
reduction and recycling legally mandated priorities for solid
waste management; establishing and expanding markets for
recyclables; and conserving vital natural resources.

A. The Counties’ Flow Control Regulations Provide
Important Environmental and Health Benefits to
the Residents of Oneida and Herkimer Counties.

In addition to reduced exposure to diesel emissions, the
respondents’ flow control regulations have resulted in other
important environmental, economic and social benefits to
the residents of Oneida and Herkimer Counties.

First and foremost, the Regulations benefit the Counties’
residents by creating a comprehensive waste management
system that matches the best management method to each
component of solid waste while making waste reduction and
recycling legally mandated priorities.

11

Together, the Counties produce approximately 300,000
tons of waste each year. Since 1988, when the Authority was
created, it has reliably and safely disposed of over 2.3 million
tons of solid waste generated in the Counties. Since the
opening of the Authority’s recycling facility in 1991, it has
removed over 700,000 tons of material from the waste stream
through recycling, or approximately one-third of the total
amount of solid waste generated. Of this amount, over
370,000 tons of recyclable material has been processed and
sold, yielding more than $13 million in revenue, and
conserving approximately two years of landfill capacity.
The avoided cost of landfilling this recyclable material at
$55/ton is over $20 million. Since 1992, the Authority has
received and composted over 180,000 tons of yard debris,
and made over 50,000 cubic yards of compost and mulch
available to the Counties’ residents. The avoided cost of
landfilling this material, at $55/ton, is over $7.5 million.
JA 359a.

Moreover, because the Counties charge “tipping fees”
for the collection and disposal of nonrecyclable waste but
do not charge such a fee for recyclables, the Regulations
provide a strong economic incentive for waste creators to
comply with the recycling mandate. These economic
incentives encourage residents, businesses and haulers to find
innovative ways to reduce the amount of waste they generate.
For example, higher tipping fees have provided an incentive
for large waste generators in the Counties, such as hotels
and industrial facilities, to seek out waste reduction and
recycling opportunities. The Authority has assisted such
efforts. JA 381a-82a.

The Authority’s recycling facility also provides the
benefit of ensuring the proper and safe disposal of hazardous

12

waste. Since 1993, the facility has received and safely
disposed of or recycled over 260,000 gallons of liquid
hazardous waste, including paint, pesticides, pool and
photographic chemicals, oil, antifreeze, and batteries.
JA 359a-60a. By properly screening all waste that comes into
.the facility, the Authority ensures that all liquid and hazardous
waste is disposed of in a manner that provides maximum
protection of human health and the environment. The benefits
of proper disposal of such waste are obvious. The safe
disposal of hazardous waste was the impetus behind the
creation of the Authority in the 1980’s, when state health
officials closed drinking water wells near several dump sites
in the Counties, twelve of which were ultimately identified
as hazardous waste disposal sites by state and federal
authorities, and one of which was named to the National
Priorities List (Superfund). Resp. Br. at 3-4.

Finally, the Regulations have realized an additional
benefit, the reduced extraction of natural resources. Most of
the recyclables are sold to companies that use the recyclable
materials as feedstock to manufacture new products, thereby
replacing the use of virgin materials in the manufacturing
process.

B. The Respondents’ Flow Control] Ordinances —
Benefit the Counties’ Residents By Reducing
Their Exposure to Diesel Emissions.

The respondents’ flow control measures also provide
important air quality and health benefits for the Counties’
residents because the regulations’ recycling requirements
reduce the amount of waste that is ultimately landfilled. Flow
control has further allowed the Counties to site their landfill
within their borders. Thus, the Regulations have the effect

13

of both minimizing the number of trucks used to transport
waste and reducing the number of miles traveled by each
truck, thereby reducing the Counties’ residents’ exposure to
harmful diesel emissions.

Most garbage truck engines run on diesel fuel. Often,
diesel garbage trucks, which can stay in use for decades, have
very old, Highly polluting engines. It is well documented that
diesel emissions are harmful to human health and contribute
substantially to local air pollution. Several organizations,
including the Environmental Protection Agency (EPA), have
designated diesel exhaust as a probable or potential human
carcinogen. Diesel exhaust is a major contributor of the
cancer risk from air toxins in the United States. Office of
Research and Dev., U.S. Envtl: Prot. Agency, Publ’n No.
EPA/600/8-90/057F, Health Assessment for Diesel Engine
Exhaust, p. 1-1 (2002), available at http://cfpub.epa.gov/
ncea/cfm/recordisplay.cfm?deid=29060. Studies show that
concentrations of toxic pollutants, such as diesel emissions,
in neighborhoods near heavily traveled highways, are
significantly higher than normal, producing a cancer risk as
high as | in 130 in some areas. Comm. on Envir. Health,
Am. Acad. of Pediatrics, Ambient Air Pollution: Health
Hazards to Children, 14 Pediatrics 1699, 1702-1707 (2004),
available at http://pediatrics.aappublications.org/cgi/content/
full/1 14/6/1699#RS.

For residents of Oneida County, the lifetime cancer risk
from diesel soot exceeds the combined risk of all other air
toxics tracked by the EPA. For these residents, the average
lifetime diesel soot cancer risk is 155 times greater than EPA’s
acceptable cancer level of | in a million. Compared to other
counties nationwide, Oneida County’s citizens have a
considerably above-average cancer risk. Clean Air Task

14

Force, Diesel Soot Health Impacts: Oneida County, New
York, available at http://www.catf.us/projects/diesel /
dieselhealth/county.php?c=36065&site=0 (using the
approved health impact modeling methodology of the EPA).
For residents of Herkimer County, the average lifetime diesel
soot cancer risk is 130 times greater than the EPA’s acceptable
cancer level. Jd. Notably, Oneida and Herkimer Counties
comply with the federal health-based ozone and PM, .
standard. In counties that are in non-attainment for those
pollutants, the average diesel soot cancer risk is even higher.
Those counties, especially, should not be further burdened
with unnecessary long-haul diesel trucks.

Besides cancer, exposure to diesel emissions
significantly contributes to short and long-term health —
hazards, such as asthma, cardiovascular and respiratory
problems, strokes, heart attacks, lower birth weight and even
premature death. Office of Research and Dev., U.S. Envtl.
Prot. Agency, Publ’n No. EPA/600/8-90/057F,
Health Assessment for Diesel Engine Exhaust, p. 1-|
(2002), available at http://cfpub.epa.gov/ncea/cfm/
recordisplay.cfm?deid=29060. Nationwide, EPA has
estimated that diesel pollution is the leading cause of
- thousands of instances of premature mortality, hundreds of
thousands of asthma attacks, millions of lost work days, and
numerous other health impacts. Envt’! Prot. Agency, Clean
Diesel Campaign, http://www.epa.gov/diesel (last visited
Dec. 2, 2006). Many epidemiological studies have
‘documented the serious health threats associated with
exposure to fine particulate matter (PM, ,) — otherwise known
as black soot. With respect to PM, , EPA has determined
that “[t}he range of health outcomes ‘linked with fine particle
exposures is also broad, including effects on the
cardiovascular and respiratory systems, and potential links

- 15

with developmental effects in children (e.g. , low birth weight)
and death from lung cancer.” National Ambient Air Quality
Standards for Particulate Matter; Proposed Rule, 71 Fed.
Reg. 2620, 2627 (January 17, 2006). See also National
Ambient Air Quality Standards for Particulate Matter; Final
Rule, 71 Fed. Reg. 61144, 61151 (October 17, 2006). In
addition, diesel engines emit nearly 40 toxic substances,
including carbon monoxide, smog-forming nitrogen oxides
and hydrocarbons.’

As mentioned above, diesel pollution is a known trigger
for asthma attacks. The New York State Department of Health
has found that asthma is a serious public health problem in
New York State and the nation. Children are especially at
risk because they breathe at a faster rate — in New York State
over 250,000 children suffer from asthma. Asthma caused
an average of 358 deaths per year in New York during the
period 1998-2000, including 12 deaths per year in children
under 14 years of age. In addition, New York residents had
an average of 42,725 asthma hospitalizations per year during
the period 1998-2000. Total Medicaid health care
expenditures for recipients with asthma in New York State
exceeded $1 billion in fiscal year 2000. N.Y. State Dep’t of
Health, EPSD/CTHP Provider Manual for Child Health

> Diesel fuel emissions also produce approximatcly 22% of the
1,958 million metric tons of carbon dioxide (CO,) released by the
transportation sector. Energy Info. Admin., U.S. Dep't of Energy,
Publ’n No. DOE/EIA-0573, Emissions of Greenhouse Gases in the
United States 2005 (2005), available at http://www.eia.doe.gov/oiaf/
1605/ggrpt/index.html. Such CO, cmissions, in turn, constitute the
dominant man-made greenhouse gas associated with climate change.
U.S. Dep't of State, U.S. Climate Action Report 2002, 27-30, Fig. 3-
1, Table 3-! (2002), available at http://www.gcrio.org/CAR2002/
car2002ch3.pdf.

16

Plus 81 (2005), available at http://www.emedny.org/
ProviderManuals/EPSDTCTHP/PDFS/EPSDT-CTHP.pdf.

The Counties’ flow control measures also provide
important air quality benefits to people living and working
in counties where diesel long-haul trucks, carrying solid
waste from the Counties, pass through on their long journey
to out-of-county landfills such as landfills in Virginia or
Pennsylvania. Long-hau! diesel trucks on their way to
landfills in Pennsylvania or Virginia could travel through
counties in New York, New Jersey, Delaware, Maryland, the
District of Columbia and Pennsylvania. This region is already
struggling with bad air quality and many counties of those
states are in non-attainment with federal health-based air
quality standards for fine particle matter (PM, ,) and ground-
level ozone standards. EPA Regions 2‘ and 35 have a total of
158 counties containing millions of people that are in non-
attainment with the federal health-based ozone standard and
80 counties that are in non-attainment with the federal health-
based fine particle (PM, .) standard. Office of Air Quality
and Prot. Standards, Envt’! Prot. Agency, 8-Hour Ground-
level Ozone Designations: Region 2: State Designations
(2004), http://www.epa.gov/ozonedesignations/regions/
region2desig.htm (last visited Dec. 5, 2006) (showing Region
2 ozone non-attainment counties); Office of Air Quality and ~
Prot. Standards, Envt’! Prot. Agency, 8-Hour Ground-level
Ozone Designations: Region 3: State Designations (2004),

* EPA Region 2 is comprised of New York, New Jersey, Puerto
Rico, and the Virgin Islands. See Envt’l Prot. Agency, About EPA:
Regions, http://www.epa.gov/epahome/locate2.htm (last visited Dec.
5, 2006).

* EPA Regions 3 is comprised of Pennsylvania, Maryland, the
District of Columbia, Delaware, Virginia and West Virginia. See id.

-

17

http://www.epa.gov/ozonedesignations/regions/
region3desig.htm (last visited Dec. 5, 2006) (showing Region
3 ozone non-attainment counties); Office of Air Quality and
Prot. Standards, Envt’! Prot. Agency, Fine Particle (PM 2.5)
Designations: Region 2: State Designations (2004), http://
epa.gov/pmdesignations/regions/region2desig.htm (last
visited Dec. 5, 2006) (showing Region 2 PM,, non-
attainment counties); Office of Air Quality and Prot.
Standards, Envt’] Prot. Agency, Fine Particle (PM 2.5)
Designations: Region 3: State Designations (2004), http://
epa.gov/pmdesignations/regions/region3desig.htm (last
visited Dec. 5, 2006) (showing Region 3 PM,, non-
attainment counties).

Hence, the Counties’ flow control measures will provide
an additional benefit of eliminating thousands of miles
unnecessarily traveled by polluting diesel long-haul trucks
inside and outside the Counties’ borders.

CONCLUSION

For the foregoing reasons, the decision of the Second
Circuit should be affirmed.

Respectfully submitted,

Micuaet J. BEAN

Counsel of Record

James T.B. Tripp

ISABELLE SILVERMAN

J. CuLteNn Howe
Environmental Defense

257 Park Avenue South
New York, New York 10010

Counsel for Amicus Curiae

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385016_0252%3A12. Public record. Not legal advice.