[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\
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    \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).
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    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.
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    \9\Letter to Ranking Member Henry Waxman from The Johns Hopkins 
Center for a Livable Future (Nov. 1, 2011).
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    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\
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    \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\
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    \11\McCarthy testimony.
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            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.