US Supreme Court Briefs

No. 99-1426



IN THE SUPREME COURT OF THE UNITED STATES


AMERICAN TRUCKING ASSOCIATIONS, INC., ETAL.,
Petitioners,
V.


CAROL M. BROWNER, ADMINISTRATOR OF THE ENVIRONMENTAL PROTECTION AGENCY, ETAL.,
Respondents,


BRIEF OF AMICIUS CURIAE THE
STATE OF NORTH CAROLINA IN SUPPORT OF
CROSS RESPONDENTS

Filed SEPT ii, 2000


This is a replacement cover page for the above referenced brief filed at the U.S. Supreme Court. Original cover could not be legibly photocopied


TABLE OF CONTENTS
TABLE OF AUTHORITIES iii
INTEREST OF THE AMICUS 2


A. THE STATE PLAYS A PRIMARY ROLE IN THE PROTECTION OF ITS NATURAL RESOURCES AND
THE HEALTh OF ITS CmzENs 2


B. THE STATE HAS A PARTICUlAR INTEREST IN THE PROTECTION OF THE HEALTh OF CHILDREN IN
THESTATE 4
SUMMARY OF ARGUMENT 6
ARGUMENT 7

I. THE EIGHT HOUR STANDARD IS REQUIRED TO BEST PROTECT THE PHYSICAL HEALTH
OF CHILDREN 8

II. GROUND-LEVEL OZONE IS DETRIMENTAL TO
CHILD DEVELOPMENT 11

m. A NATIONAL STANDARD IS ESSENTIAL TO
ACHIEVE THE PUBLIC HEALTH OBJECTIVE
AND TO ENSURE A LEVEL ECONOMIC
PLAYING FIELD 13
CONCLUSION 17


ii

4
iii

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 bane denied,
195 F.3d 4 (CADC 1999) 1, 8, 10

Georgia v. Tennessee Copper Co., 206 U.S. 230,
27S.Ct.618,51L.Ed.1038(1907) 2

Hancock v. Train, 426 U.S. 167, 96 S. Ct. 2006,
48L.Ed. 2d555 (1976) 2

Huron Portland Cement Co. v. City of Detroit,
362 U.S. 440, 80 5. Ct. 813, 4 L. Ed. 2d 852 (1960) 2

Lassiter v. Department of Social Services, 452
U.S. 18, 101 S.Ct.2153,68L.Ed.2d640(1981) 4

Michigan v. United States Envtl. Protection Agency,
213F.3d663(CADC2000) 15

Missouriv. Jenkins, 515 U.S. 70, 115 S. Ct. 2038,
132L. Ed.2d63 (1995) 4

O'Connor v. Donaldson, 422 U.S. 563, 95 5. Ct. 2486,
45L.Ed.2d396(1975) 2

Troxel v. Granville, 120 S. Ct. 2054, 147 L. Ed. 2d 49
(2000) 4
This page intentionally left blank.


iv

STATUTES &

ADMINISTRATIVE MATERIALS
FEDERAL
42 U.S.C. 7401 (a)(3) 2
42 U.S.C. 7409(b)(1) 10, 11
42 U.S.C. 7410(a)(2)(D)(i)(I) 15
42U.S.C.7426 15
42 U.S.C. 7545(c)(4)(C) 16
40C.F.R.PartSI 14
40C.F.R.80.195 16

National Ambient Air Quality Standards for Ozone,
62 Fed. Reg. 38,856 (July 18, 1997) (codified at
40 C.F.R. Part 50) 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
atN.C.G.S. 119-26.2 & 143-215.107A(c)) 16
V


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

atN.C.G.S. 20-183.3) 16
N.C.G.S.110-91 6
N.C.G.S. 115C-84.2 5
N.C.G.S. 115C-378 5
10 N.C.A.C. 3U.0509 6
10N.C.A.C. 3U.0511 6
10 N.C.A.C. 3U.0601 6
1ON.C.A.C.3U.1402 6
10 N.C.A.C. 3U.2504 6
10 N.C.A.C. 3U.2508 6
1ON.C.A.C.14V.2204 6
1ON.C.A.C.14V.2404 6
10 N.C.A.C. 41F.0703 6
10 N.C.A.C. 41S.0609 6
15A N.C.A.C. 2D.0405 4
Del. Admin. Code 70-100-003 6.2 13





vi

MISCELLANEOU
S
In the
Supreme Court
of the United
States




American Acad, of Pediatrics, Better Health & Fitness
Through Physical Activity
(No. HE0090 1996) 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 et al.,
N.C. Dept. of Health & Human Services, to
Alan Klixnek, N.C. Div. of Air Quality
(Jan. 11, 2000) 3

N.C. Dept. of Public Instruction et al., Land for
Learning (June 1998) 5, 12

N.C. Div. of Air Quality, Eight-Hour Ozone Averages
in NC in 1999 (1999) 3

U.S. Envtl. Protection Agency, Air Quality
Criteria for Ozone and Related Photochemical
Oxidants (1996) 10


AMERICAN TRUCKING ASSOCIATIONS, INC.,
et al.,
Cross-Petitioners,

V.


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 A.ss 'ns, Inc. ("ATA') v. United
States Envtl. Protection Agency, 175 F.3d 1027, reh
'ggranted 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).





3
2
INTEREST OF TUE 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 5.
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 5. 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 5. 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 5. 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 countly. 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. Id. 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).





4 5


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 ISA N.CAC. 2D.0405.

B. THE STATE HAS A PARTICULAR INTEREST
IN THE PROTECTION OF THE HEALTH OF
CHILDREN IN TuE 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., Lossiter v. Department of Social
Services, 452 U.S. 18, 101 5. 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. Id. 1
15C-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





6 7


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.
I













I
The benefits to youths are of special concem 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.





8 9


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. TILE 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 I-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. Id. 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. Id. at 3 8,864/2. Implementation
of a 0.08 ppm ozone level would eliminate hundreds of
thousands of occurrences in children of




10

adverse ozone reactions in EPA's limited study area alone.'
Id. at 3 8,864/3. EPA would be abdicating its duty to
"protect the public health," 42 U.S.C. 7409(b)(l), 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
Ii

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").

II. 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.




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


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





12 13


that experiences this symptom will average nearly 4.5 such
occurrences each year. Id. 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. HEOO9O 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.

III. 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.2 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



2 Delaware also has promulgated the eight hour standard. See
Del. Adrnin. Code 70-100-003 6.2.




15
14
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 50 far this year.3 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.4

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.
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) ("NOr 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.6 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.




AsofAugust 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 efforts.
6 Through the NO~ SIP Call, EPA has required 22 eastern states to

impose controls on sources of NO~ that "contribute significantly to

nonattaimnent in, or interfere with maintenance by" other states. 42
U.S.C.

7410(a)(2)(D)(i)(I). 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...
)





16 17
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 Ifl (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 atN.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.
the disparate economic consequences to states such as
North Carolina that choose to implement the eight hour
standard.

CON(~LUSION

For all of the foregoing reasons, the a~nicus
respectfully requests that this Court reverse the decision of
the. Circuit Court.

Respectfully submitted,

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
A national ambient ozone standard that protects the
public from the health risks evidenced in the record would
alleviate





6 (...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.


of
Record September 11, 2000



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