[House Report 112-316]
[From the U.S. Government Publishing Office]
112th Congress Report
HOUSE OF REPRESENTATIVES
1st Session 112-316
======================================================================
FARM DUST REGULATION PREVENTION ACT OF 2011
_______
December 6, 2011.--Committed to the Committee of the Whole House on the
State of the Union and ordered to be printed
_______
Mr. Upton, from the Committee on Energy and Commerce, submitted the
following
R E P O R T
together with
DISSENTING VIEWS
[To accompany H.R. 1633]
[Including cost estimate of the Congressional Budget Office]
The Committee on Energy and Commerce, to whom was referred
the bill (H.R. 1633) to establish a temporary prohibition
against revising any national ambient air quality standard
applicable to coarse particulate matter, to limit Federal
regulation of nuisance dust in areas in which such dust is
regulated under State, tribal, or local law, and for other
purposes, having considered the same, report favorably thereon
with an amendment and recommend that the bill as amended do
pass.
CONTENTS
Page
Purpose and Summary.............................................. 2
Background and Need for Legislation.............................. 3
Hearings......................................................... 10
Committee Consideration.......................................... 10
Committee Votes.................................................. 11
Committee Oversight Findings..................................... 19
Statement of General Performance, Goals and Objectives........... 19
New Budget Authority, Entitlement Authority, and Tax Expenditures 19
Earmarks......................................................... 19
Committee Cost Estimate.......................................... 19
Congressional Budget Office Estimate............................. 19
Federal Mandates Statement....................................... 21
Advisory Committee Statement..................................... 21
Applicability to Legislative Branch.............................. 21
Section-by-Section Analysis of Legislation....................... 22
Changes in Existing Law Made by the Bill, as Reported............ 22
Dissenting Views................................................. 24
Amendment
The amendment is as follows:
Strike all after the enacting clause and insert the
following:
SECTION 1. SHORT TITLE.
This Act may be cited as the ``Farm Dust Regulation Prevention Act of
2011''.
SEC. 2. TEMPORARY PROHIBITION AGAINST REVISING ANY NATIONAL AMBIENT AIR
QUALITY STANDARD APPLICABLE TO COARSE PARTICULATE
MATTER.
Before the date that is one year after the date of the enactment of
this Act, the Administrator of the Environmental Protection Agency may
not propose, finalize, implement, or enforce any regulation revising
the national primary ambient air quality standard or the national
secondary ambient air quality standard applicable to particulate matter
with an aerodynamic diameter greater than 2.5 micrometers under section
109 of the Clean Air Act (42 U.S.C. 7409).
SEC. 3. NUISANCE DUST.
Part A of title I of the Clean Air Act (42 U.S.C. 7401 et seq.) is
amended by adding at the end the following:
``SEC. 132. REGULATION OF NUISANCE DUST PRIMARILY BY STATE, TRIBAL, AND
LOCAL GOVERNMENTS.
``(a) In General.--Except as provided in subsection (b), this Act
does not apply to, and references in this Act to particulate matter are
deemed to exclude, nuisance dust.
``(b) Exception.--Subsection (a) does not apply with respect to any
geographic area in which nuisance dust is not regulated under State,
tribal, or local law insofar as the Administrator finds that--
``(1) nuisance dust (or any subcategory of nuisance dust)
causes substantial adverse public health and welfare effects at
ambient concentrations; and
``(2) the benefits of applying standards and other
requirements of this Act to nuisance dust (or such subcategory
of nuisance dust) outweigh the costs (including local and
regional economic and employment impacts) of applying such
standards and other requirements to nuisance dust (or such
subcategory).
``(c) Definition.--In this section--
``(1) the term `nuisance dust' means particulate matter
that--
``(A) is generated primarily from natural sources,
unpaved roads, agricultural activities, earth moving,
or other activities typically conducted in rural areas;
``(B) consists primarily of soil, other natural or
biological materials, or some combination thereof;
``(C) is not emitted directly into the ambient air
from combustion, such as exhaust from combustion
engines and emissions from stationary combustion
processes; and
``(D) is not comprised of residuals from the
combustion of coal; and
``(2) the term `nuisance dust' does not include radioactive
particulate matter produced from uranium mining or
processing.''.
Purpose and Summary
H.R. 1633, the ``Farm Dust Regulation Prevention Act of
2011,'' was introduced by Rep. Kristi Noem on April 15, 2011.
The legislation would place limits on Clean Air Act regulation
of nuisance dust generated by farming, ranching and other
activities typically conducted in rural areas. Key provisions
of the bill:
Prohibit for one year the Environmental Protection
Agency from promulgating any new National Ambient Air Quality
Standard for coarse particulate matter.
Limit Federal regulation of nuisance dust to areas
in which it is not regulated under State, tribal, or local law,
where it causes substantial adverse public health and welfare
effects, and where the benefits of Federal regulation outweigh
the costs.
Nuisance dust is defined to mean particulate
matter that is generated primarily from natural sources,
unpaved roads, agricultural activities, earth moving, or other
activities typically conducted in rural areas, and meets other
specific criteria.
Background and Need for Legislation
Under the Clean Air Act, the Environmental Protection
Agency (EPA) has established National Ambient Air Quality
Standards (NAAQS) for particulate matter (PM). EPA initially
established such standards in 1971, and subsequently revised
those standards in 1987, 1997, and 2006. These NAAQS include
standards for ``coarse'' particulate matter, which includes
particles 10 micrometers in diameter or smaller, known as
``PM10,'' or dust. Since 1987, EPA has had a
PM10 standard that is a 24-hour standard in a 99th
percentile form set at a level of 150 micrograms per cubic
meter. EPA last revisited and decided to retain this standard
in 2006. Certain geographic areas continue to work towards
attaining the existing standard.
EPA is currently conducting a five-year review of its PM
standards, including the standards for PM10. In
April 2011, EPA released a policy assessment prepared by EPA
staff recommending that EPA either retain the current
PM10 standard or revise it to a 98th percentile form
and a level within the range of 65 to 85 micrograms per cubic
meter.
H.R. 1633 achieves two important goals. In the short term,
it provides regulatory certainty for agricultural, ranching and
rural businesses, and in the longer term it provides greater
flexibility to states and localities to manage dust in rural
parts of the nation. The bill precludes a new coarse
particulate matter standard for at least one year from the date
of enactment, and it offers regulatory relief to rural America
by recognizing that states and local communities are better
equipped to monitor and control farm dust.
The history of particulate matter regulation under the Clean Air Act
Since passage of the 1970 Clean Air Act, the EPA has
regulated particles emitted into the air. This includes fine
particulate matter, which is produced primarily by combustion
processes and atmospheric reactions, and coarse particulate
matter, which is directly emitted or re-entrained into the air.
In urban areas, coarse particulate matter is generally emitted
as a result of mechanical processes. Sources of such coarse
particles include, for example, traffic-related emissions such
as tire and brake lining materials, direct emissions from
industrial processes, and construction and demolition
activities. In contrast, in rural areas, coarse particulate
matter is more likely to consist of windblown dust and soils.
Particulate matter, without distinction to its source, is one
of the six criteria pollutants for which EPA sets and enforces
NAAQS under the Clean Air Act.
Coarse particulate matter generally deposit rapidly on the
ground or other surfaces and are not readily transported across
urban or broader areas. In contrast, fine particulate matter
from combustion and atmospheric reactions can remain suspended
in the air and be transported across distances.
The agency's initial 1971 NAAQS encompassed total suspended
particulates up to 45 micrometers in diameter. However, when
that standard was reviewed, research showed that smaller
particulates were more problematic and the standard was revised
in 1987 to address particulates 10 micrometers in diameter or
less (PM10). This new NAAQS included a 24-hour
PM10 standard of 150 micrograms per cubic meter and
an annual standard of 50 micrograms per cubic meter. The
PM10 NAAQS regulations address urban dust emitted
from industrial processes and automotive traffic, and also
address rural dust and windblown dust of natural origin.
The standards were revised again in 1997 based on research
attributing most of the adverse health impacts to fine
particulate matter 2.5 micrometers or less in diameter
(PM2.5). EPA created a separate set of NAAQS for
PM2.5. The PM2.5 standards address the
fine particulate that forms in the air from gases emitted by
combustion at power plants, factories, and motor vehicles,
especially in urban areas. The agency also solicited comment on
a proposal to eliminate the 24-hour NAAQS for PM10,
but did not eliminate that standard in the final rule.
Because the 1987 PM10 standards address both
fine and coarse particulate, and therefore duplicate the public
health protections associated with the new PM2.5
NAAQS, EPA determined that the fine and coarse fractions of
PM10 should be considered separately. EPA in its
final 1997 standards decided to use PM10 as an
indicator for only the coarse component of particulate matter.
However, the Court of Appeals for the District of Columbia
vacated EPA's decision to use PM10 as an indicator
for only the coarse component, and the 1987 standard remained
in place.
In 2006, EPA proposed revisions to its PM standards. EPA
shifted its focus to urban particulate matter, reflecting the
growing recognition that coarse particles comprised of natural
crustal soils, dust and other biologic material do not pose a
serious public health concern. EPA proposed an exemption for
``rural windblown dust and soils and PM generated by
agricultural and mining sources.'' EPA noted that the coarse
particles that people are typically exposed to in urban areas
differ appreciably from the particles typically found in non-
urban or rural areas. EPA also noted that coarse particulate
matter is associated with health effects in studies conducted
in urban areas, and the limited available health evidence more
strongly implicates coarse particles from traffic-related and
industrial sources than that from uncontaminated soil or
geologic sources.
In the final 2006 rule, EPA tightened the NAAQS for
PM2.5, and ultimately retained the 24-hour
PM10 standard of 150 micrograms per cubic meter,
while dropping the annual PM10 standard based on a
lack of evidence of longer term health problems attributable to
particulates in that size category. While the agency did not
finalize its proposed exemption for windblown dust and soils in
its final 2006 standards, it required monitoring for PM NAAQS
only in urban areas.
Current EPA regulation of farm dust
On October 25, 2011, EPA Assistant Administrator Gina
McCarthy testified that currently 41 counties in the United
States are classified as being in nonattainment with this
standard. Subsequently, an environmental organization
petitioned EPA to designate 15 additional areas as being in
nonattainment with the existing PM10 NAAQS,
reclassify 6 currently ``moderate'' nonattainment areas to
``serious'' nonattainment, which carries more stringent
compliance requirements, and require the states of Arizona,
Colorado, Montana, Nevada, New Mexico, Oklahoma, Utah and
Wyoming to revise their current state implementation plans to
adopt more stringent standards.
Each state with nonattainment areas is responsible for
creating and enforcing a SIP for coming into attainment with
the PM10 standard. These SIPs may impose dust-
limiting requirements on agricultural operations such as
harvesting, driving trucks and equipment on unpaved roads, or
moving cattle. Examples of such measures are listed in the
state implementation plans for several areas of the Southwest,
such as San Joaquin and Imperial Counties in California, and
Maricopa County in Arizona.
EPA has required that the SIPs contain specific management
practices for agricultural sources. For example, Kevin Rogers,
President of the Arizona Farm Bureau and farmer in a
PM10 nonattainment area, testified regarding costly
requirements imposed on farmers and ranchers. These may include
``tillage based on soil moisture, not working the fields in
windy conditions, modifying equipment to prevent PM generation,
speed limits on unpaved roads, planting windbreaks and
permanent cover crops, to name a few.'' He added that EPA is
currently pushing for ``mandatory restrictions against working
the fields when winds reach a certain speed.''
Illinois cattle rancher and former President of the
National Cattlemen's Beef Association Steve Foglesong testified
that ``one cattle operation located in a dust nonattainment
area in Arizona spent $400,000 to comply with the current
standard.'' A major part of the cost is associated with
spreading large amounts of water on the ground to suppress
dust--and having to do so in parts of the country where water
is a scarce resource.
Under the SIP process, states adopt measures that are
subject to EPA review and approval. SIPs must include Federally
enforceable measures and failure to submit an approvable SIP
may trigger sanctions and a Federal implementation plan. Many
areas spend years in negotiation with EPA to achieve an
approvable SIP. For example, the Imperial County Board of
Supervisors describes an ``expensive and intensive effort''
working with EPA in 2005 to develop a SIP: ``EPA finally took
action in early 2010 on the [SIP], disapproving portions of it
and seeking a variety of new and additional measures before it
would even consider approval of the 2005 plan submittal.''
The Board of Supervisors in Imperial County, California, in
a letter to the Committee, stated that while the County, in
collaboration with EPA, developed and adopted SIP provisions
affecting the farming community in 2005, in 2010 EPA took
action to disapprove portions of it and to require a variety of
new and additional measures affecting farming operations. They
stated, for example, that while the County's 2005 plan covered
all farms of 40 acres or more, which represent 97 percent of
all farmland in the Imperial Valley, EPA is now seeking to
impose measures on all farms in the county of 10 acres or more.
The Imperial County Board of Supervisors further stated in
a letter to the Committee: ``The new measures will impose even
stricter controls on our farmers, providing little or no
benefit towards Imperial County's effort to meet attainment of
the NAAQS for PM10. It seems clear that there is
absolutely no justification for imposing requirements that
would have a negative impact on the economy and employment in
the County, when the rules and controls would not change the
ability of the County to meet the standards on the few high PM
days that are caused by exceptional events or transport from a
foreign country.'' As a result of EPA's actions, the Board has
urged Congress to provide a temporary one-year prohibition on
EPA disapproval of SIPs in areas that receive less than 10
inches of precipitation per year; EPA sanctions for such areas;
and the use of Federal funds by EPA or other Federal agencies
for purposes of litigation against such jurisdictions.
EPA review of particulate matter standards
The agency is in the process of conducting its required 5-
year review of the NAAQS for particulate matter, both
PM10 and PM2.5. A proposed rule has not
yet been published.
In April 2011, EPA released its ``Policy Assessment for the
Review of the Particulate Matter National Ambient Air Quality
Standards.'' In the Assessment, EPA staff recommended the
agency either retain the current 24-hour PM10
standard of 150 micrograms per cubic meter or revise it to a
range of 65-85 micrograms per cubic meter. The agency also
recommends either retaining the current 99th percentile form or
changing it to 98th percentile--the latter effectively
permitting additional exceedances before an area is designated
nonattainment. EPA asserts that changing the form to 98th
percentile would make a standard in the upper end of the
proposed new range ``generally equivalent'' to the current
standard and form. However, a study submitted by the Coarse
Particulate Matter Coalition found that such a change would
make the NAAQS considerably more stringent, predicting that it
would cause many rural areas to exceed the standard or would
bring them to the brink of exceedance of the standard,
particularly in areas of the West, Southwest, and Midwestern
United States.
EPA has acknowledged that the scientific evidence calling
for a more stringent PM10 standard based on rural
soils is limited. The agency has not excluded the option of
retaining the current standard. Nonetheless, the fact that the
agency's record also includes multiple recommendations to
consider strengthening the current standard has created
uncertainty for the agricultural community. Farmers, ranchers,
and rural businesses have expressed concern about costlier and
more intrusive measures than those which are imposed under the
existing PM10 NAAQS. Even more significantly, rural
businesses in areas currently in attainment with the existing
standard express concern about the implications of being
designated as nonattainment areas under a new more stringent
PM10 NAAQS.
In response to concerns about expanded regulation, EPA
Administrator Lisa Jackson stated in an October 14, 2011 letter
to two U.S. Senators that ``I am prepared to propose the
retention--with no revision--of the current PM10
standards and form when it is sent to OMB for interagency
review.'' However, this statement has not adequately addressed
the concerns of many stakeholders, including the American Farm
Bureau Federation and its 51 affiliates, the National
Cattlemen's Beef Association, and over 185 agricultural and
other organizations that have written in support of H.R. 1633
because the Administrator's statement does not resolve
regulatory uncertainty.
After Administrator Jackson's statement, Assistant Air
Administrator Gina McCarthy testified: ``I believe that there
should be regulations on coarse particles, and coarse
particles, no matter where they are emitted from, can be
reduced in areas where they are causing a health burden that
they should be reduced if they can be done cost-effectively.''
When asked whether the final rule could differ from the
proposed version and include farm dust, Ms. McCarthy responded
that ``the Administrator has made her intention clear but
certainly she can't preclude the rights and responsibilities
she has under the Administrative Procedures Act and the right
to listen to comment that is received.''
If EPA does not change the existing PM10 NAAQS
during its current rulemaking process, it is possible at least
one petitioner will challenge EPA in court seeking to compel
the agency to promulgate a more stringent NAAQS. In the words
of Rep. Lee Terry, ``We are only one lawsuit away from you
[EPA] being forced to regulate dust particles from farming
activities. . . .'' When asked about the possibility, Assistant
Administrator McCarthy acknowledged the possibility of such
lawsuits and said she could do nothing to stop it. In a
subsequent panel, attorney John Walke of the Natural Resources
Defense Council, an organization that frequently sues EPA,
declined to foreclose the option of a litigation forcing a new
PM10 standard. The recent petition seeking to
designate 15 additional areas as being in nonattainment with
the existing PM10 NAAQS also demonstrates the
potential for litigation.
H.R. 1633 is needed to eliminate regulatory uncertainty,
and provide regulatory relief associated with current and
potential future regulation of dust in rural America. Without
legislation, the rulemaking process and legal challenges could
result in more stringent dust regulations and costs to
agricultural and rural businesses.
H.R. 1633--The Farm Dust Regulation Prevention Act of 2011
H.R. 1633, the ``Farm Dust Regulation Prevention Act of
2011,'' includes the following provisions:
Section 1 provides the short title of ``Farm Dust
Regulation Prevention Act of 2011.''
Section 2 prohibits EPA from proposing, finalizing,
implementing or enforcing any regulation revising the National
Ambient Air Quality Standards applicable to coarse particulate
matter for one year from the date of enactment.
Section 3 provides that ``nuisance dust'' shall not be
subject to regulation under the Clean Air Act, except to the
extent that nuisance dust in a geographic area is not currently
regulated by state, tribal or local law and the Administrator
of the Environmental Protection Agency (EPA) finds: (1)
nuisance dust causes substantial adverse public health and
welfare effects at ambient concentrations; and (2) the benefits
of applying standards and requirements of the Clean Air Act to
nuisance dust outweigh the costs (including economic and
employment impacts) of applying the standards.
Section 3 also defines ``nuisance dust'' to mean
particulate matter that (1) is generated primarily from natural
sources, unpaved roads, agricultural activities, earth moving,
or other activities typically conducted in rural areas; (2)
consists primarily of soil, other natural or biological
materials, or some combination thereof; (3) is not emitted
directly into the ambient air from combustion, such as exhaust
from combustion engines and emissions from stationary
combustion processes; and (4) is not comprised of residuals
from the combustion of coal. The term ``nuisance dust'' does
not include radioactive particulate matter produced from
uranium mining or processing.
The ``Farm Dust Regulation Prevention Act of 2011'' was
introduced on April 15, 2011, by Representatives Noem, Hurt,
Boswell, and Kissell. An Amendment in the Nature of a
Substitute was offered and favorably reported by the
Subcommittee on Energy and Power on November 3, 2011.
Supporters of the legislation
Supporters of the legislation include the Agribusiness
Association of Indiana, Agribusiness Association of Iowa,
Agricultural Council of Arkansas, Agricultural Retailers
Association, Agri-Mark Inc., Alabama Cattlemen's Association,
Alabama Pork Producers Association, All-Terrain Vehicle
Association, American Farm Bureau Federation and their 51 state
affiliates, American Feed Industry Association, American
Motorcyclist Association, American Sheep Industry Association,
American Veal Association, Americans for Prosperity, Americans
for Tax Reform, Arizona Cattle Feeders Association, Arizona
Cattle Growers Association, Arizona Cattlemen's Association,
Arizona Cotton Growers Association, Arizona Pork Council,
Arkansas Cattlemen's Association, Arkansas Pork Producers
Association, Arkansas Poultry Federation, California
Cattlemen's Association, California Pork Producers Association,
Colorado Association of Wheat Growers, Colorado Cattlemen's
Association, Colorado Corn Growers Association, Colorado Lamb
Council, Colorado Livestock Association, Colorado Pork
Producers Council, Colorado Potato Administrative Committee,
Colorado Sheep & Wool Authority, Colorado Wool Growers
Association, Council for Citizens Against Government Waste,
CropLife America, Dairy Farmers of America, Dairy Producers of
New Mexico, Dairy Producers of Utah, Dairylea Cooperative,
Florida Cattlemen's Association, Florida Nursery, Growers and
Landscape Association, Georgia Agribusiness Council, Georgia
Cattlemen's Association, Georgia Fruit and Vegetable Growers
Association, Georgia Milk Producers, Georgia Pork Producers
Association, Georgia Poultry Federation, Georgia Watermelon
Association, Idaho Cattle Association, Idaho Dairymen's
Association, Idaho Grain Producers Association, Idaho Pork
Producers Association, Idaho Potato Commission, Idaho Wool
Growers Association, Illinois Beef Association, Illinois Pork
Producers Association, Imperial County Board of Supervisors,
Imperial County Farm Bureau, Independent Cattlemen's
Association of Texas, Indiana Beef Cattle Association, Indiana
Pork, Iowa Cattlemen's Association, Iowa Pork Producers
Association, Kansas Livestock Association, Kansas Pork
Association, Kentucky Cattlemen's Association, Kentucky Pork
Producers Association, Let Freedom Ring, Livestock Marketing
Association, Louisiana Cattlemen's Association, Louisiana Pork
Producers Association, Maine Hog Growers Association, Michigan
Cattlemen's Association, Michigan Pork Producers Association,
Milk Producers Council, Minnesota Grain and Feed Association,
Minnesota Pork Producers Association, Minnesota State
Cattlemen's Association, Mississippi Cattlemen's Association,
Mississippi Pork Producers Association, Missouri Cattlemen's
Association, Missouri Corn Growers Association, Missouri Pork
Producers Association, Missouri Poultry Federation, Montana
Pork Producers Council, Montana Stockgrower's Association,
Montana Wool Growers Association, National Association of
Manufacturers, National Cattlemen's Beef Association, National
Chicken Council, National Cotton Council, National Cotton
Ginners' Association, National Council of Farmer Cooperatives,
National Federation of Independent Business, National Grain and
Feed Association, National Livestock Producers Association,
National Meat Association, National Milk Producers Federation,
National Mining Association, National Oilseed Processors
Association, National Pork Producers Council, National Potato
Council, National Renderers Association, National Stone, Sand &
Gravel Association, National Turkey Federation, Nebraska
Cattlemen's Association, Nebraska Grain and Feed Association,
Nebraska Pork Producers Council, Inc., New Hampshire Pork
Producers Council, New Mexico Cattle Growers Association, New
Mexico Farm and Livestock Bureau, New Mexico Federal Lands
Council, New Mexico Wool Growers Inc., New York Producers
Cooperative, Inc., North Carolina Agribusiness Council, Inc.,
North Carolina Cattlemen's Association, North Carolina Forestry
Association, North Carolina Horse Council, North Carolina
Peanut Growers Association, North Carolina Pork Council, North
Carolina Poultry Federation, North Carolina Soybean Producers
Association, Inc., North Carolina SweetPotato Commission, North
Dakota Corn Growers Association, North Dakota Pork Producers
Council, North Dakota Stockmen's Association, Northeast Ag and
Feed Alliance, Northeast Dairy Farmers Cooperative, Ohio
Agribusiness Association, Ohio Cattlemen's Association, Ohio
Pork Producers Council, Oklahoma Cattlemen's Association,
Oklahoma Poultry Federation, Oklahoma Pork Council, Oregon Pork
Producers Association, PennAg Industries Association,
Pennsylvania Pork Producers Strategic Investment Program,
Public Lands Council, Rocky Mountain Agribusiness Association,
Select Milk Producers, Inc., Small Business & Entrepreneurship
Council, South Carolina Cattlemen's Association, South Carolina
Pork Board, South Dakota Agri-Business Association, South
Dakota Association of Cooperatives, South Dakota Cattlemen's
Association, South Dakota Dairy Producers, South Dakota Grain &
Feed Association, South Dakota Pork Producers Council, South
Dakota Soybean Association, South Dakota Stockgrowers
Association, South Dakota Wheat Inc., South East Dairy Farmers
Association, Southeastern Livestock Network, Southern Cotton
Growers, Southern Crop Production Association, Southeast Milk
Inc., St. Albans Cooperative Creamery, Stewards of the Sequoia,
Tennessee Cattlemen's Association, Tennessee Pork Producers
Association, Texas Agricultural Cooperative Council, Texas and
Southwestern Cattle Raisers Association, Texas Association of
Dairymen, Texas Cattle Feeders Association, Texas Pork
Producers Association, The Blue Ribbon Coalition, The
Fertilizer Institute, Upstate Niagara Cooperative, USA Rice
Federation, US Beet Sugar Association, US Chamber of Commerce,
Utah Cattlemen's Association, Utah Pork Producers Association,
Utah Wool Growers Association, Virginia Agribusiness Council,
Virginia Cattlemen's Association, Virginia Grain Producers
Association, Virginia Pork Industry Association, Virginia
Poultry Federation, Washington Cattle Feeders Association,
Washington Cattlemen's Association, Washington Pork Producers,
Western Business Roundtable, West Virginia Cattlemen's
Association, Wisconsin Dairy Business Association, Wisconsin
Pork Producers, Wyoming Pork Producers, and the Wyoming Stock
Grower's Association.
Hearings
On October 25, 2011, the Subcommittee on Energy and Power
held a legislative hearing on the ``Farm Dust Regulation
Prevention Act of 2011'' and received testimony from:
Representative Kristi Noem (South Dakota),
U.S. House of Representatives;
Representative Robert Hurt (Virginia), U.S.
House of Representatives;
Gina McCarthy, Assistant Administrator for
Air and Radiation, U.S. Environmental Protection
Agency;
Steve Foglesong, Ranch Owner, Black Gold
Cattle Company and Immediate Past president, NBA, on
behalf of the National Cattlemen's Beef Association;
Kevin Rogers, President, Arizona Farm
Bureau, on behalf of the American Farm Bureau
Federation;
Pete Lien, President, Pete Lien & Sons,
Inc., on behalf of the National Stone, Sand & Gravel
Association;
Kurt E. Blase, Partner, Holland & Knight, on
behalf of the Coarse Particulate Matter Coalition;
Till von Wachter, Ph.D., Associate Professor
of Economics, Columbia University;
Gregory Wellenius, Sc.D., Assistant
Professor of Community Health, Brown University; and,
John Walke, Clean Air Director and Senior
Attorney, Natural Resources Defense Council.
Committee Consideration
H.R. 1633 was introduced on April 15, 2011 by
Representatives Kristi Noem, Robert Hurt, Leonard Boswell, and
Larry Kissell.
On October 25, 2011, the Subcommittee on Energy and Power
held a legislative hearing on H.R. 1633.
On November 3, 2011, the Subcommittee on Energy and Power
reported the bill favorably to the full committee, by roll call
vote of 12 ayes and 9 nays. During the markup, an Amendment in
the Nature of a Substitute was offered, and adopted by voice
vote. One amendment was offered and defeated, by voice vote.
On November 29 and 30, 2011, the Committee on Energy and
Commerce met in open markup session. During the markup, 9
amendments were offered of which 2 were adopted.
On November 30, 2011, the Committee ordered H.R. 1633
favorably reported to the House, as amended.
Committee Votes
Clause 3(b) of rule XII of the Rules of the House of
Representatives requires the Committee to list the record votes
on the motion to report legislation and amendments thereto. A
motion by Mr. Upton to order H.R. 1633, reported to the House,
as amended, was agreed to by a record vote of 33 yeas and 16
nays. The following reflects the recorded votes taken during
the Committee consideration, including the names of those
Members voting for and against.
Committee Oversight Findings
Pursuant to clause 3(c)(1) of rule XIII of the Rules of the
House of Representatives, the Committee made findings that are
reflected in this report.
Statement of General Performance, Goals and Objectives
H.R. 1633 prohibits EPA from revising the National Ambient
Air Quality Standards applicable to coarse particulate matter
for one year from the date of enactment, and also provides that
nuisance dust shall not be subject to Federal regulation under
the Clean Air Act, except to the extent it is not currently
regulated by State, tribal or local law, causes substantial
adverse public health and welfare effects, and the benefits of
regulation outweigh the costs.
New Budget Authority, Entitlement Authority and
Tax Expenditures
In compliance with clause 3(c)(2) of rule XIII of the Rules
of the House of Representatives, the Committee finds that H.R.
1633, the ``Farm Dust Regulation Prevention Act of 2011,''
would result in no new or increased budget authority,
entitlement authority, or tax expenditures or revenues.
Earmarks
In compliance with clause 9(e), 9(f), and 9(g) of rule XXI,
the Committee finds that H.R. 1633, the ``Farm Dust Regulation
Prevention Act of 2011,'' contains no earmarks, limited tax
benefits, or limited tariff benefits.
Committee Cost Estimate
Pursuant to clause 3(c)(3) of rule XIII of the Rules of the
House of Representatives, the following is the cost estimate
provided by the Congressional Budget Office pursuant to section
402 of the Congressional Budget Act of 1974.
December 6, 2011.
Hon. Fred Upton,
Chairman, Committee on Energy and Commerce,
House of Representatives, Washington, DC.
Dear Mr. Chairman: The Congressional Budget Office has
prepared the enclosed cost estimate for H.R. 1633, the Farm
Dust Regulation Prevention Act of 2011.
If you wish further details on this estimate, we will be
pleased to provide them. The CBO staff contact is Susanne S.
Mehlman.
Sincerely,
Douglas W. Elmendorf.
Enclosure.
H.R. 1633--Farm Dust Regulation Prevention Act of 2011
Summary: H.R. 1633 would prohibit the Environmental
Protection Agency (EPA) from issuing any new National Ambient
Air Quality Standard for particulate matter (PM) greater than
2.5 micrometers in diameter for at least one year from the date
of enactment. This legislation also would amend the Clean Air
Act (CAA) to exclude, with an exception, PM considered to be
``nuisance dust'' from regulation by the CAA. That exception
would apply to areas without any state, tribal, or local
regulation of ``nuisance dust'' if EPA finds that such dust
would cause substantial adverse effects and only if regulating
it would result in benefits that outweigh the costs, including
economic and employment impacts.
Nuisance dust would be defined in the legislation to mean
PM that is generated primarily from natural sources, unpaved
roads, agricultural activities, earth moving, or other
activities typically conducted in rural areas, and consists
primarily of soil or other natural biological materials. PM
that is emitted into the air from combustion or is produced
from uranium mining or processing would be excluded from this
definition.
CBO estimates that implementing this legislation would cost
$10 million over the 2012-2016 period, assuming appropriation
of the necessary funds. Such funding would cover EPA's costs to
carry out changes to certain existing emission control
standards, and activities to study the need and feasibility of
modifying EPA's national monitoring network for PM.
Pay-as-you-go procedures do not apply to H.R. 1633 because
the bill would not affect direct spending or revenues.
H.R. 1633 contains no intergovernmental or private-sector
mandates as defined in the Unfunded Mandates Reform Act (UMRA).
Estimated cost to the Federal Government: The estimated
budgetary impact of H.R. 1633 is shown in the following table.
The costs of this legislation fall within budget function 300
(natural resources and environment).
----------------------------------------------------------------------------------------------------------------
By fiscal year, in millions of dollars--
-------------------------------------------------------
2012 2013 2014 2015 2016 2012-2016
----------------------------------------------------------------------------------------------------------------
CHANGES IN SPENDING SUBJECT TO APPROPRIATION
Estimated Authorization Level........................... * 2 2 3 3 10
Estimated Outlays....................................... * 2 2 3 3 10
----------------------------------------------------------------------------------------------------------------
Note: *= less than $500,000.
Basis of estimate: For this estimate, CBO assumes that H.R.
1633 will be enacted in calendar year 2012 and that the
necessary amounts to implement this legislation will be
appropriated for each year. In total, CBO estimates that
implementing this legislation would cost about $10 million over
the next five years.
EPA has established two standards for PM--one for coarse
particles measuring between 2.5 and 10 micrometers and one for
fine particles that are 2.5 micrometers in diameter or less.
Currently, EPA is not planning to revise any standard related
to coarse PM. Thus, CBO estimates that implementing section 2
of this legislation to prohibit such regulation would have no
significant impact on the federal budget.
CBO estimates, however, that exempting nuisance dust from
regulation under the CAA would require EPA to revise certain
existing emission control standards, including those
regulations that target PM as well as those that affect toxic
substances in the air, to the extent that nuisance dust may be
covered by those standards. Some of those revisions would be
necessary because the agency expects some sources of PM would
petition EPA to modify certain regulations. According to EPA,
it costs on average $500,000 to revise a clean air standard;
this cost includes both the personnel and contract costs
required to revise cost and benefit models, determine new
environmental impacts, reassess monitoring and modeling data,
publish a proposal, receive and respond to public comments, and
issue a final rule for the revision. Over the next five years,
CBO expects that, under the bill, several existing standards
would be reviewed at a cost of $5 million.
In addition, CBO estimates that EPA would incur additional
costs to consider the need to reconfigure its PM national
network. That network consists of 200 sampling stations that
determine the chemical composition of PM in the ambient air.
Under the bill, EPA may need to modify that network in order to
differentiate nuisance dust from other PM and in order to
revise various emission control standards that are based on
monitoring data. Industry experts that CBO consulted note that
there is some uncertainty about the feasibility of
distinguishing nuisance dust from other PM. Consequently, CBO
expects that EPA would initially study the possibility of
updating its monitoring network before making any significant
capital expenditures. Over the 1998-2000 period, EPA spent
about $50 million annually to develop and implement
modifications to its air-sampling network to carry out
regulations related to fine PM. Thus, CBO estimates that
modifying this system to differentiate nuisance dust could be
costly; however, spending to support that effort, if needed,
would not occur until after 2016. Based on information from
EPA, we expect that the agency would spend $5 million over the
next five years to study the need and feasibility of modifying
its monitoring network.
Pay-As-You-Go considerations: None.
Intergovernmental and private-sector impact: H.R. 1633
contains no intergovernmental or private-sector mandates as
defined in UMRA.
Estimate prepared by: Federal costs: Susanne S. Mehlman;
Impact on state, local, and tribal governments: Ryan Miller;
Impact on the private sector: Amy Petz.
Estimate approved by: Theresa Gullo, Deputy Assistant
Director for Budget Analysis.
Federal Mandates Statement
The Committee adopts as its own the estimate of Federal
mandates prepared by the Director of the Congressional Budget
Office pursuant to section 423 of the Unfunded Mandates Reform
Act.
Advisory Committee Statement
No advisory committees within the meaning of section 5(b)
of the Federal Advisory Committee Act were created by this
legislation.
Applicability to Legislative Branch
The Committee finds that the legislation does not relate to
the terms and conditions of employment or access to public
services or accommodations within the meaning of section
102(b)(3) of the Congressional Accountability Act.
Section-by-Section Analysis of Legislation
Section 1-Short title
Section 1 provides the short title of ``Farm Dust
Regulation Prevention Act of 2011.''
Section 2-Temporary prohibition against revising any National Ambient
Air Quality Standard applicable to coarse particulate matter
Section 2 prohibits EPA from proposing, finalizing,
implementing or enforcing any regulation revising the National
Ambient Air Quality Standards applicable to coarse particulate
matter for one year from the date of enactment.
Section 3-Nuisance dust
Section 3 provides that ``nuisance dust'' shall not be
subject to regulation under the Clean Air Act, except to the
extent that nuisance dust in a geographic area is not currently
regulated by state, tribal or local law and the Administrator
of the Environmental Protection Agency finds: (1) nuisance dust
causes substantial adverse public health and welfare effects at
ambient concentrations; and (2) the benefits of applying
standards and requirements of the Clean Air Act to nuisance
dust outweigh the costs (including economic and employment
impacts) of applying the standards.
Section 3 also defines ``nuisance dust'' to mean
particulate matter (1) that is generated primarily from natural
sources, unpaved roads, agricultural activities, earth moving,
or other activities typically conducted in rural areas; (2)
consists primarily of soil, other natural or biological
materials, or some combination thereof; (3) is not emitted
directly into the ambient air from combustion, such as exhaust
from combustion engines and emissions from stationary
combustion processes; and (4) is not comprised of residuals
from the combustion of coal. The term ``nuisance dust'' does
not include radioactive particulate matter produced from
uranium mining or processing.
Changes in Existing Law Made by the Bill, as Reported
In compliance with clause 3(e) of rule XIII of the Rules of
the House of Representatives, changes in existing law made by
the bill, as reported, are shown as follows (new matter is
printed in italic and existing law in which no change is
proposed is shown in roman):
CLEAN AIR ACT
TITLE I--AIR POLLUTION PREVENTION AND CONTROL
Part A--Air Quality and Emission Limitations
* * * * * * *
SEC. 132. REGULATION OF NUISANCE DUST PRIMARILY BY STATE, TRIBAL, AND
LOCAL GOVERNMENTS.
(a) In General.--Except as provided in subsection (b), this
Act does not apply to, and references in this Act to
particulate matter are deemed to exclude, nuisance dust.
(b) Exception.--Subsection (a) does not apply with respect to
any geographic area in which nuisance dust is not regulated
under State, tribal, or local law insofar as the Administrator
finds that--
(1) nuisance dust (or any subcategory of nuisance
dust) causes substantial adverse public health and
welfare effects at ambient concentrations; and
(2) the benefits of applying standards and other
requirements of this Act to nuisance dust (or such
subcategory of nuisance dust) outweigh the costs
(including local and regional economic and employment
impacts) of applying such standards and other
requirements to nuisance dust (or such subcategory).
(c) Definition.--In this section--
(1) the term ``nuisance dust'' means particulate
matter that--
(A) is generated primarily from natural
sources, unpaved roads, agricultural
activities, earth moving, or other activities
typically conducted in rural areas;
(B) consists primarily of soil, other natural
or biological materials, or some combination
thereof;
(C) is not emitted directly into the ambient
air from combustion, such as exhaust from
combustion engines and emissions from
stationary combustion processes; and
(D) is not comprised of residuals from the
combustion of coal; and
(2) the term ``nuisance dust'' does not include
radioactive particulate matter produced from uranium
mining or processing.
* * * * * * *
DISSENTING VIEWS
As approved, H.R. 1633 has the potential to be interpreted
very broadly in manners that could significantly limit existing
and future Clean Air Act public health protections. At the
October 25, 2001 hearing on H.R. 1633, the Farm Dust Regulation
Prevention Act, the author of the legislation stated that the
purpose of H.R. 1633 is ``to (end) the Environmental Protection
Agency's (EPA) regulation of farm dust in rural America, while
still maintaining the protections of the Clean Air Act to the
public's health and welfare.''\1\ Farm dust examples include
the dust kicked up by a combine harvesting wheat or a pickup
truck driving down a dirt road and can be classified as coarse
particulates. Based on speculation that the EPA was considering
tightening the standards for coarse particulate matter, which
includes farm dust, the author of the bill decided to introduce
this legislation to prevent something that had yet to be even
proposed.
---------------------------------------------------------------------------
\1\Testimony of Congresswoman Kristi Noem before the Subcommittee
on Energy and Power, Legislative Hearing on H.R. 1633, the Farm Dust
Regulation Prevention Act of 2011, 112th Congress (October 25, 2011).
---------------------------------------------------------------------------
Consequently, by rushing this bill through Committee with
only one hearing and little consideration for long-term
consequences, this Committee has ignored assurances by the EPA
Administrator that EPA would not tighten the standards and also
ended up passing legislation that opens gaping holes in the
Clean Air Act through which one could drive a herd of cattle.
Legislating the Clean Air Act
The Clean Air Act Amendments of 1990 (1990 Amendments) were
the last major changes to the original Clean Air Act (CAA) of
1970. No one involved in the 1990 Amendments took these changes
lightly; many hearings, markups, amendments, and negotiations
with the Senate were held throughout the 101st Congress. Over
100 of the 166 cosponsors were Republicans. According to the
Committee on Energy and Commerce's report on the 1990
Amendments, the Subcommittees on Health and the Environment,
Energy and Power, and Oversight and Investigations held 70 days
of hearings over a 10 year period. During the 101st Congress,
when the 1990 Amendments were passed, the Subcommittee on
Health and the Environment held eight days of hearings and the
Subcommittee on Energy and Power held six hearings. Once the
1990 Amendments moved to the full Committee, an additional 10
markup sessions were held before the 1990 Amendments passed 41-
1. Members of the Committee involved in that process remember
how extensive those sessions were and what efforts were made to
incorporate suggestions from both Republicans and Democrats to
make it a stronger bill.
In addition to consideration by the Committee on Energy and
Commerce, the 1990 Amendments were referred to the Committee on
Public Works and Transportation and the Committee on Ways and
Means. When the House and the Senate met in a conference
committee, conferees included members from seven House
Committees--Energy and Commerce; Ways and Means; Education and
Labor; Interior and Insular Affairs; Merchant Marine and
Fisheries; Science, Space, and Technology; and Public Works and
Transportation. The conference committee held five sessions and
the conference report on the 1990 Amendments passed by a vote
of 401-25 in the House and 89-10 in the Senate.
The Clean Air Act Amendments of 1990 was not perfect
legislation; compromises require each side make concessions on
important issues. However, it has proved to be effective over
the years--as the Assistant EPA Administrator noted in her
testimony, ``the Gross Domestic Product of the United States
grew by more than 200 percent'' while saving approximately
160,000 lives last year by reducing premature mortality
risks.\2\ Pollutant emissions have dropped by 41 percent since
1990.\3\
---------------------------------------------------------------------------
\2\Testimony of EPA Assistant Administrator Regina McCarthy before
the Subcommittee on Energy and Power, Legislative Hearing on H.R. 1633,
the Farm Dust Regulation Prevention Act of 2011, 112th Congress
(October 25, 2011). McCarthy's testimony cited the Bureau of Economic
Analysis, National Economic Accounts, ``Table 1.1.5. Gross Domestic
Product,'' http://bea.gov/national/index.htm#gdp
\3\``Our Nation's Air--Status and Trends through 2008,'' EPA
(February 2010). http://epa.gov/airtrends/2010/report/airpollution.pdf
---------------------------------------------------------------------------
H.R. 1633, on the other hand, had only one hearing and two
markups. Where the 1990 Amendments were truly bipartisan, only
four of 120 cosponsors of H.R. 1633 are Democrats. Ten
amendments were considered for H.R. 1633 but only one
Democratic amendment was adopted and the vote from the
Subcommittee on Energy and Power occurred along partisan lines.
This is not compromise legislation. Furthermore, if this were a
simple bill amending a small part of the Clean Air Act, this
process would be of less concern. Unfortunately, ambiguity
resulting from the poor drafting of the legislation could
jeopardize the entire National Ambient Air Quality Standard
(NAAQS) for any size of particulate matter generated in rural,
suburban, or urban areas. This bill creates ambiguities and
uncertainties that some will undoubtedly try to exploit and
that will likely lead to lengthy and extensive litigation.
Ambiguously drafted bills, such as H.R. 1633, unnecessarily
cede prerogatives of the legislative branch to the other two
branches of government.
Section two of H.R. 1633 prohibits the EPA for one year
from proposing, finalizing, implementing, or enforcing ``any
regulation revising'' any primary or secondary NAAQS that
applies to particulate matter larger than 2.5 micrometers,
generally referred to as coarse particulates. Farm dust is one
kind of coarse particulate matter. Rather than simply
preventing the EPA from prospectively revising the existing
coarse particulate standard, Section 2 of this bill is written
in such a way that could be interpreted to apply to the entire
national ambient air quality standard program for particulate
matter. It could prevent (for one year) the revision of the
fine particle standards because the fine particle monitors used
to determine attainment status include in their measurements
some particles larger than 2.5 microns.\4\ Second, it could
prevent the implementation and enforcement of the existing fine
and coarse particle matter control program because the existing
NAAQS are themselves regulations revising standards applicable
to particles greater than 2.5 microns in diameter. While those
potential interpretations are not the best reading of this
section, the ambiguities in this section will likely lead to
litigation and uncertainties that better drafting could
prevent.
---------------------------------------------------------------------------
\4\Testimony of EPA Assistant Administrator Regina McCarthy before
the Subcommittee on Energy and Power, Legislative Hearing on H.R. 1633,
the Farm Dust Regulation Prevention Act of 2011, 112th Congress
(October 25, 2011).
---------------------------------------------------------------------------
Section three creates a new category of air pollution
called ``nuisance dust'' that would be completely exempt from
EPA clean air regulations. This exemption will likely lead to
significant litigation and regulatory uncertainty as polluters
try to have their emissions fit into the definition of
``nuisance dust'' and thus be exempt from regulations,
including air toxics regulations, new source performance
standards, and perhaps even regulatory provisions to reduce
pollution from power plants and mobile sources. The bill
language encourages litigation by using undefined and ambiguous
terms such as ``primarily,'' ``activities typically conducted
in rural areas,'' and ``natural'' material to define ``nuisance
dust.'' The definition does not clarify the size of ``nuisance
dust,'' meaning that nuisance dust could include fine
particles. ``Nuisance dust'' is defined broadly enough that, in
addition to farm dust, it could include other particles such as
toxins or metals released from mining or other industrial
activities. The definition exempts particulate matter generated
from ``natural sources,'' ``earth moving'' or ``other
activities typically conducted in rural areas.'' Mining
operations, road construction, or earth moving also occur in
urban settings so these types of ``nuisance dust'' could also
be exempted from regulation in urban areas as well. Finally,
even if ``nuisance dust'' is generated in a rural area that
dust is not guaranteed to stay in rural areas. Winds can carry
dust many miles and EPA sensors do not differentiate rural dust
from urban dust.
This definition is problematic because: a) nuisance dust
would include both fine and coarse particulate matter; b)
nuisance dust can be generated anywhere; and c) particulate
matter monitors do not distinguish between nuisance dust and
other types of fine or coarse particulate matter. Thus, because
all measurements of particulate matter potentially include some
nuisance dust, there are implications for all particulate
matter standards whose implementation, enforcement and
development rests on monitoring or monitored results.
A solution in search of a problem
After rumors surfaced that the EPA would attempt to impose
stricter regulations on coarse particulate matter, the EPA
Administrator worked to assuage those concerns. In March of
this year a news article quoted the Administrator that EPA had
``no plans to'' implement stricter standards. The article also
noted that, because the NAAQS is required to be reviewed every
five years and go through a public comment period,\5\ the
Administrator could not definitively say that stricter
regulations would not be implemented until after completion of
the public comment period.\6\ On October 14, 2011, before the
Subcommittee on Energy and Power's hearing on H.R. 1633, the
EPA Administrator sent a letter to the chairwoman of the Senate
Committee on Agriculture, Nutrition, and Forestry stating the
EPA's intent ``to propose the retention--with no revision--of
the current'' particulate matter standards.\7\
---------------------------------------------------------------------------
\5\This review and comment period is required under 42 USC 85
Sec. 7409(d)(1).
\6\``Bill to ban phantom EPA dust rule approved by House panel,''
November 2, 2011, Washington Post.
\7\Letter from Lisa Jackson, EPA Administrator, to Senator Debbie
Stabenow, Oct. 14, 2011, available at http://epa.gov/pm/pdfs/
20111014Stabenow.pdf.
---------------------------------------------------------------------------
Republican members of this Committee insist the legislation
is necessary despite the EPA Administrator's assurance that
stricter regulations will not be implemented. Meanwhile, the
Republican author of a similar Senate bill, a former secretary
of the Department of Agriculture, takes a different position.
In one of his weekly columns, the Senate sponsor stated, ``I
asked only for clarity from EPA, and this week Administrator
Jackson finally provided it.''\8\
---------------------------------------------------------------------------
\8\``EPA Announcement a Victory for Agriculture,'' Senator Mike
Johanns, October 17, 2011, http://johanns.senate.gov.
---------------------------------------------------------------------------
Unfortunately, Republican members of the Committee on
Energy and Commerce would not believe the letter of the EPA
Administrator to a Senate committee chairwoman even as
constituents of the bill's author questioned the need for H.R.
1633. The Sioux Falls Argus Leader wrote, ``it's disappointing
to see (the bill's author) continue her fight against a made-up
problem like the potential for farm dust regulations by the
Environmental Protection Agency.''\9\ The Yankton Daily Press &
Dakotan gave a ``THUMBS DOWN to (the bill's author), who can't
seem to find her way out of an imagined dust storm. . . . We
wish South Dakota's lone representative would stop trying to
stir the fears of farmers and ranchers and instead spend her
time fighting real problems rather than imagined ones.''\10\
---------------------------------------------------------------------------
\9\``Noem pushing ahead blindly in dust-up with EPA,'' Sioux Falls
Argus Leader, October 21, 2011.
\10\``We Say--In The Dust,'' Yankton Daily Press & Dakotan, October
21, 2011.
---------------------------------------------------------------------------
Real solutions to real problems
The Clean Air Act and the Amendments of 1990 have provided
this country with important public health benefits and proven
that the economy can grow while we reduce pollution.
Nonetheless, as a chief author of the changes made in 1990, I
admit that the CAA is showing its age and would benefit from
some carefully targeted amendments to address specific
problems. However, Republican members are not crafting real
solutions targeted at the problems they perceive in the Clean
Air Act. H.R. 1633 is ambiguous and subject to interpretations
that go far beyond the stated intent of its authors.
I have been a harsh critic of erroneous administration of
the CAA by the EPA and other failures by that agency. The way
this or similar matters should be tended to is by proper
oversight, hearings, correspondence, and careful investigative
staff work. Such due diligence is the surest way to avoid
unintended consequences which produce erroneous and surprising
repercussions from litigation to appeal unwise or incorrect
interpretations of the statute.
Members from the majority and minority have historically
been willing to engage in proper legislative oversight and fact
finding leading to thoughtful and effective amendments to
address administrative failure or administrative misbehavior by
the EPA. On many occasions in the past I have led or supported
such action by Congress and stand ready to assist in such
proper action. That approach, using the regular order, assures
a far better and more successful result to dealing with the
problem, real or imagined, before us.
The approach here assures mischief, mistakes, confusion,
and difficulty for everyone who might be affected by the
failures of H.R. 1633. If we want to make changes, let's make
the same type of effort we did 21 years ago and really examine
the specific problems and propose legislation that solves those
problems. Until that time comes, I will continue to oppose
these half thought out bills that are poorly written, contain
no new solutions, and make little effort to bring both parties
to the table to find a true, well reasoned compromise.
I am ready to help deal with this problem in a proper way.
This regrettably is not a proper way to deal with these
important and complicated problems.
John D. Dingell.
DISSENTING VIEWS FOR H.R. 1633
The Farm Dust Regulation and Prevention Act of 2011 would
substantially weaken the Clean Air Act by eliminating EPA's
authority to regulate particulate matter from a broad range of
sources and by jeopardizing existing state and federal
regulations that apply to fine and coarse particulate pollution
across all sources of that pollution. It would also block EPA
from revising the health-based air quality standard for coarse
particulate matter for one year and may block EPA from revising
the fine particulate matter standard for one year.
Although the title of the bill suggests that it covers only
dust from farms, the bill creates a broad new category of
pollution, called nuisance dust, and exempts it from the Clean
Air Act entirely without any scientific evidence that doing so
will not harm public health. The bill would exempt from the
Clean Air Act any particulate matter pollution that is emitted
from sources such as open-pit mines, mining processing plants,
sand and gravel mines, smelters, coal mines, coal-processing
plants, ferroalloy plants (which produce materials used in
steel manufacture), cement kilns, and waste and recovery
facilities. These facilities emit fine particulates, coarse
particulates, arsenic, lead, mercury, cadmium, zinc, chromium,
and other heavy metals, all of which could fall under this
bill's broad exemption from the Clean Air Act. The bill also
may exempt emissions of nitrogen oxides and sulfur dioxide from
power plants and other combustion sources, as explained below.
I. PURPOSE OF H.R. 1633
The Clean Air Act requires EPA to set National Ambient Air
Quality Standards (NAAQS) for pollutants considered harmful to
public health and the environment. NAAQS are set to determine
the amount of pollution allowed in the ambient air but do not,
in and of themselves, establish any emission control
requirements for any industry or source, including agriculture.
EPA sets NAAQS for particles that are 10 micrometers in
diameter or smaller, as these particles can travel through the
throat and nose and enter the lungs. The current standard for
PM10 (coarse particles) has been in place since 1987
to address the health effects of short-term, acute exposure to
coarse particles. EPA has also set a NAAQS for PM2.5
(fine particles). The Clean Air Act requires EPA to review the
latest science and update each NAAQS as needed every five
years. EPA is currently in the process of updating the NAAQS
for fine and coarse particles.
Both fine and coarse particulates harm health. Numerous
studies have concluded that exposure to fine particles can
cause premature death, asthma attacks and other respiratory
disease, heart attacks, and stroke.\1\ EPA's Integrated Science
Assessment for Particulate Matter examined the best peer-
reviewed scientific literature and concluded that the medical
evidence suggests a causal relationship between short term
exposure to coarse particle pollution and cardiovascular
effects, respiratory effects, and mortality.\2\ Individuals
with preexisting lung diseases such as asthma, children and
older adults are more vulnerable to these health effects from
exposure to coarse particles.\3\ EPA has concluded that that
exposure to coarse particles ``can have an important public
health impact'' because of the ``magnitude of these
subpopulations and risks identified in health studies conducted
in urban and industrial areas.''\4\
---------------------------------------------------------------------------
\1\U.S. EPA, Integrated Science Assessment for Particulate Matter
(Final Report) (Dec. 15, 2009) at 2-14-2-15.
\2\Id. at 2-18.
\3\U.S. EPA, Fact Sheet: Final Revisions to the National Ambient
Air Quality Standards for Particle Pollution (Sept. 21, 2006); U.S.
EPA, National Ambient Air Quality Standards for Particulate Matter, 71
Fed. Reg. 61178 (Oct. 17, 2006).
\4\U.S. EPA, National ambient Air Quality Standards for Particulate
Matter, 71 Fed. Reg. 61178 (Oct. 17, 2006).
---------------------------------------------------------------------------
Supporters of this bill claim that H.R. 1633 will simply
prevent the EPA from regulating coarse particles emitted from
agricultural activities for one year. At the Subcommittee
markup, Chairman Ed Whitfield stated that this bill ``provides
needed certainty that the agricultural sector and rural America
will not be burdened with costly new EPA dust regulations.''\5\
Gina McCarthy, Assistant Administrator for Air and Radiation at
EPA, testified that this bill is not necessary if the goal is
to prevent EPA from tightening the NAAQS for coarse
particles.\6\ On October 14, 2011, EPA Administrator Jackson
sent a letter to Senator Debbie Stabenow stating that EPA plans
to propose retaining, not revising, the current PM10
standard and form, which ensures that the standard will not be
revisited for five years.
---------------------------------------------------------------------------
\5\Statement of Chairman Ed Whitfield, Markup of H.R. 1633, The
Farm Dust Regulation Prevention Act of 2011, 112th Cong. (Nov. 3,
2011).
\6\Testimony of the Honorable Gina McCarthy, Assistant
Administrator for Air and Radiation, U.S. Environmental Protection
Agency, before the Subcommittee on Energy and Power, Committee on
Energy and Commerce, H.R. 1633, the Farm Dust Regulation Prevention Act
of 2011, 112th Cong. (Oct. 25, 2011).
---------------------------------------------------------------------------
In reality, despite the bill's title, H.R. 1633's primary
impact will go far beyond farm dust, which EPA does not
regulate and does not intend to regulate. Rather, the bill
broadly exempts from the Clean Air Act a wide range of non-
agricultural sources and pollution. In fact, during the full
committee markup, Rep. John Shimkus acknowledged that the bill
is intended to exempt particulate matter pollution from mining
operations.
During the full committee markup, Democrats offered several
amendments to limit the scope of the bill. Ranking Member Bobby
Rush offered an amendment to prohibit EPA from revising the
PM10 standard for one year and strike the language
exempting so-called nuisance dust from the Clean Air Act. In
addition, Rep. G.K. Butterfield offered an amendment to narrow
the definition of nuisance dust to mean ``coarse crustal or
organic particulate matter that is produced from agricultural
activities.'' These amendments were defeated.
II. SECTION-BY-SECTION ANALYSIS
A. Section 2
Section 2 of H.R. 1633 prohibits EPA from proposing,
finalizing, implementing, or enforcing any regulation revising
the NAAQS applicable to particles larger than 2.5 micrometers
for one year after the date of enactment.
The effect of this provision is ambiguous, but it could
affect the NAAQS standard for fine as well as coarse
particulate matter. If this section applies only to the
PM10 NAAQS, it has no practical effect, as EPA plans
to retain the current PM10 NAAQS and would not
revisit the standard again for five years. However, EPA has
expressed concern that this section also could apply to the
PM2.5 NAAQS because, as a practical matter,
PM2.5 monitors capture and ``count'' some particles
larger than PM2.5, and thus designations and
violations for PM2.5 in part address some larger
particles.\7\ Thus, the PM2.5 NAAQS arguably is
applicable to particles larger than PM2.5. If so,
this section would block EPA's ongoing PM2.5 NAAQS
review and rulemaking.
---------------------------------------------------------------------------
\7\EPA staff telephone communication with Democratic Committee
staff (Oct. 20, 2011).
---------------------------------------------------------------------------
Ranking Member Rush offered an amendment during the
subcommittee and full committee markups to clarify that this
section does not intend to preclude EPA from revising the
PM2.5 NAAQS if the Administrator determines that the
science merits such a revision. These amendments were defeated.
B. Section 3
This section amends the Clean Air Act and eliminates EPA's
authority under the CAA to regulate anything that constitutes
``nuisance dust,'' except in narrowly defined circumstances
that are unlikely to occur.
Definition of nuisance dust
Section 3(c) of the bill as amended in subcommittee,
defines ``nuisance dust'' as particulate matter that is
generated from ``natural sources, unpaved roads, agricultural
activities, earth moving, or other activities typically
conducted in rural areas,'' and ``consisting primarily of soil,
other natural or biological materials.'' In response to
concerns that had been raised by Democratic members, the
Majority's amendment in subcommittee also changed the bill to
clarify that nuisance dust does not include particulate matter
that is ``emitted directly into the ambient air from
combustion, such as exhaust from combustion engines and
emissions from stationary combustion processes.'' This ensures
that particulate matter ``emitted directly'' from combustion at
sources, such as power plants or mobile sources, does not fall
under the bill's exemption for nuisance dust. But this
provision also raises new questions about whether the bill
would still have the effect of exempting particulate matter
that is not ``emitted directly'' from a source but forms in the
atmosphere from reactions of nitrogen oxides and sulfur
dioxides. During the full committee markup, the majority
accepted two amendments to clarify that the definition of
nuisance dust does not include particulate matter from coal
combustion residual disposal sites and uranium mining
operations, both of which could have been exempted from the
Clean Air Act under the definition of nuisance dust.
Even with these clarifications, the definition of nuisance
dust and the exemption for nuisance dust from the Clean Air Act
remain very broad. The fact that the majority has added three
specific exclusions to its definition of nuisance dust
demonstrates that the broad and loose language in section 3
could apply well beyond farm dust to a range of industrial
activities, whether or not this is the intention of the bill's
sponsors.
The definition and exemption apply to particles of any
size, not just coarse particles, and they are not limited to
rural areas. The definition captures particulate emissions from
any source that ``typically'' is located outside of urban
areas, which can include an array of industrial operations with
significant emissions from non-combustion processes. The bill,
therefore, could hinder or prevent EPA from reducing deadly
fine particle pollution, as well as coarse particulate
pollution, in rural and urban areas across the country from a
broad range of sources. EPA emphasized this concern at the
legislative hearing.
The definition for nuisance dust includes particulate
matter primarily composed of ``natural materials'' generated
from ``earth moving'' or ``activities typically conducted in
rural areas,'' thereby applying the exemption far beyond
agricultural activities. The reference to ``earth moving''
clearly covers particulate matter from large industrial mining
operations, such as the Kennecott copper mine in Utah, which is
the largest source of particulate matter in the state. This
reference to ``earth moving'' also covers sand and gravel
mines, which can generate substantial pollution in the process
of digging, transporting, and processing the materials.\8\
---------------------------------------------------------------------------
\8\See, for example, a report prepared by the Committee on
Government Reform, Special Investigations Division Minority Staff, for
Congresswoman Hilda L. Solis and Congressman Henry A. Waxman,
Environmental Effects of Gravel Mining in Irwindale, CA: Basic
Information Is Not Available to Assess Health and Environmental Risks
to the Community (Dec. 12, 2002).
---------------------------------------------------------------------------
During the full committee markup, Ranking Member Waxman
offered an amendment to ensure that particulate matter from
mining operations would remain covered by the Clean Air Act.
This amendment was defeated.
The reference to ``activities typically conducted in rural
areas'' is undefined and could include particulate matter from
construction and demolition activities, cement kilns, coal
processing plants, ferroalloy plants, smelters, and any other
industrial operation that is ``typically conducted'' in rural
areas. The majority's exclusion for particulate matter from
combustion sources would not exclude particulate pollution from
industrial operations that generate particulate matter through
processes other than combustion, such as milling, grinding,
smelting, and other high-temperature industrial processes. This
bill would exempt all particulate matter pollution from these
sources from the entire Clean Air Act, eliminating EPA's
authority to protect public health from the effects of exposure
to this pollution except in very narrow circumstances, as
explained below.
Particulate pollution from mining, cement plants, smelters,
and other industrial activities can consist of or be
contaminated with heavy metals such as arsenic, mercury, and
other air toxics. This raises concerns that the bill could
preclude EPA from protecting public health from exposure to
toxic air pollution under section 112 of the Clean Air Act.
During the full committee markup of the bill, Rep. Kathy Castor
offered an amendment to ensure that particulate matter
containing arsenic and other heavy metals would remain covered
by the Clean Air Act. This amendment was defeated.
The majority has not presented any scientific evidence that
exempting ``nuisance dust'' as defined in the bill would not
result in significant public health effects. Researchers at
Johns Hopkins University wrote a letter to the Committee
stating that the bill ``does not take account of the available
scientific knowledge on public health risks posed by exposure
to rural PM'' and ``does not account for current or future
knowledge of health risks posed by rural PM exposure, and
rather enacts a permanent exemption of rural PM from CAA
regulation.'' The scientists conclude that this approach ``is
not supported by the scientific evidence or good professional
judgment, and is not scientifically defensible.''\9\ Rep. Anna
Eshoo offered an amendment during the full committee markup to
nullify the bill's exemption for nuisance dust if the EPA
Administrator and Clean Air Scientific Advisory Committee
determine that the bill's exemption would increase incidence of
asthma attacks, respiratory disease, cardiovascular disease, or
premature mortality. Her amendment was defeated.
---------------------------------------------------------------------------
\9\Letter to Ranking Member Henry Waxman from The Johns Hopkins
Center for a Livable Future (Nov. 1, 2011).
---------------------------------------------------------------------------
In addition to the public health impacts of exempting
nuisance dust, it is unclear how this exemption could be
accomplished as a practical matter. During the legislative
hearing on the bill, EPA Assistant Administrator Gina McCarthy
testified as follows:\10\
---------------------------------------------------------------------------
\10\McCarthy testimony.
[U]nlike the terms ``fine particle'' and ``coarse
particle,'' the term ``nuisance dust'' is not a
scientific or scientifically-defined term. It would be
very difficult to incorporate an exclusion for
``nuisance dust'' into a scientifically-based program.
This could raise practical problems. For example,
monitoring air quality is an essential element of the
ambient air quality program; it is how we determine
which areas have healthy air and which do not. It is
unclear how one could design a monitor that measured
``fine particles except for nuisance dust,'' and it is
unclear how the Agency could implement particle
pollution programs without a scientifically sound
---------------------------------------------------------------------------
monitoring network.
Air quality monitors can distinguish pollution particles by
size and, to some degree, by chemical composition. They cannot
distinguish pollution particles by source. In most cases, it
would be difficult or impossible to ascertain if a violation of
the PM10 or PM2.5 standard was due to
spikes in ``nuisance dust'' or another type of particle
pollution. Thus, it is unclear how EPA could set a health-based
standard for PM10 or PM2.5 that excludes
some particles but includes other particles, depending on the
source of the particles.
Overall, Assistant Administrator McCarthy raised concerns
about the effect of this bill on the existing health-based
standards for particle pollution. Since the existing air
quality standards do not distinguish between ``nuisance dust''
and other particles, she testified that ``the bill raises the
issue of whether the EPA could enforce or maintain existing
fine or coarse particle pollution standards.''\11\
---------------------------------------------------------------------------
\11\McCarthy testimony.
---------------------------------------------------------------------------
Limitation on EPA's authority over particle pollution
Section 3(b) of the bill describes the very narrow
conditions under which EPA may still use the Clean Air Act to
control particle pollution that is ``nuisance dust.''
This section provides that the CAA continues to apply to
nuisance dust only if three conditions apply. First, the
Administrator must find that nuisance dust causes substantial
adverse public health and welfare effects. Second, even if the
Administrator determines that nuisance dust causes substantial
harm, she also must find that the benefits of regulating
nuisance dust outweigh the costs, including impacts on
employment. Third, the Administrator only has this authority in
areas where state, local or tribal governments are not
regulating nuisance dust. Many areas either already have some
regulation applicable to something encompassed by the broad
definition of nuisance dust or could readily adopt some form of
regulation. The bill includes no requirement that such
regulation achieve any degree of health protection for the
public at large or for sensitive populations such as children
and the elderly.
The bill's supporters argue that because nuisance dust
would be regulated at the state or local level, there would be
no harm to public health. The decades of experience with air
pollution problems prior to 1970 demonstrate that states and
localities acting along are not able to adequately address air
pollution problems. As Rep. John Dingell observed during the
full committee markup, ``air moves.'' States and localities are
affected by air pollution generated by sources outside their
jurisdiction that they cannot control. In addition, in the
absence of minimum federal standards, there can be a race to
the bottom, as businesses threaten to move to other
jurisdictions with looser standards. For these reasons, it has
been widely accepted for decades that minimum federal standards
are necessary to afford a basic level of clean air to all
Americans. The Clean Air Act is founded on the principle of
cooperative federalism, in which the federal government sets
minimum standards, but decisions on how to achieve those
standards are left to states and localities, which implement
the standards. This bill would revert to the pre-1970 approach
to pollution control with respect to the pollutants and sources
that fall under the definition of nuisance dust.
During the full committee markup, Rep. Donna Christensen
offered an amendment to allow EPA to step in to address
nuisance dust if the state, local, or tribal agencies are not
regulating nuisance dust at a level requisite to protect public
health. This amendment was defeated.
For the reasons stated above, we dissent from the views
contained in the Committee's report.
Henry A. Waxman.
Edward J. Markey.
Doris O. Matsui.
Edolphus Towns.
Diana DeGette.
Eliot L. Engel.
Kathy Castor.
Bobby L. Rush.
Donna M. Christensen.
Mike Doyle.
Jan Schakowsky.
Lois Capps.
Frank Pallone, Jr.
Anna G. Eshoo.