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Particulate matters

The EPA's new proposed dust regulations are causing a stir in cattle country

By Jennifer M. Latzke

Spend five minutes outside in the rural parts of the High Plains and three things will become apparent. One, there's a lot of wind. Two, where there's a lot of wind, there's often a lot of dust.

And, three, the daily work that must be done in the feedlots, fields, farms and ranches in rural America-to feed and clothe not just the United States but also the world-can't stop because of wind and dust.

And yet, the Environmental Protection Agency's current review of the National Ambient Air Quality Standards of the Clean Air Act could result in more stringent standards for coarse particulate matter. In other words, dust regulations are cropping up again, and cattlemen are starting to take notice.

Micrograms per cubic meter

The Clean Air Act requires the EPA to set Primary NAAQS for par-ticle pollution, protecting the health of sensitive populations like asthmatics, children and the elderly. The original intent was to clean up the smog and other air pollution from factories that had become a serious health problem in urban areas. There are two kinds of particulate matter that are regulated-fine particulate matter, usually from com-bustion and smoking, and coarse particulate matter, or dust.

In 1997, the standards were revised to regulate inhalable coarse particles, because harmful contaminates from high automobile traffic or other combustion actions can attach to coarse particles, and thus be inhaled and cause harm.

"Unfortunately for us, the EPA NAAQS says that standard has to be a national standard," said Tamara Thies, chief environmental counsel for the National Cattlemen's Beef Association. "We litigated this and suggested then that EPA should have regulated urban areas, and leave agriculture and rural areas alone." However, on appeal, the U.S. Supreme Court found that these standards must be the same across the nation, allowing for no separation between rural and urban areas.

"Consequently, dust is regulated in rural areas by the EPA even though there is no health data that shows rural dust is a health concern," Thies said. There are no studies that have shown that at ambient levels dust from rural areas or agricultural practices causes adverse health effects, she emphasized.

Thus, the current standard was created, which limits coarse particulate matter at 150 micrograms per cubic meter in a 24-hour period, with an allowance of only one violation per year to remain in compliance, or "attainment."

Reviewing standards

Today, though, the EPA is reviewing its particulate matter standards in its regular process. And, all signs point to the EPA proposing a new standard of 65 to 85 micrograms per cubic meter in a 24-hour period, but with an allowance of up to seven violations per year to remain in attainment.

Thies said while the EPA claims these two standards are essentially equivalent in terms of health protection, these stricter regulations would be devastating to rural economies dependent on agriculture.

NCBA contracted a study with John Richards, Ph.D., P.E., of Air Quality Control Techniques. The study looked at the effects these stringent standards would have on various regions throughout the United States, and whether they would be in attainment, or nonattainment.

The study reviewed 382 of the 990 PM10 monitors that operated in the U.S. from 2007 to 2009, primarily in the West, Southwest and Midwest. It found 42 sites currently are in nonattainment at today's levels. With increasingly stricter standards, the number of sites in nonattainment rose. And, at the proposed standard of 65 micrograms per cubic meter, the number of sites in nonattainment rose by 348 percent-from 42 to 146.

If EPA moves forward with a proposed rule as we anticipate, farmers and ranchers could be fined for driving down a dirt road, moving cattle from one pasture to the next, or tilling a field," Thies said. "EPA claims it is concerned with urban dust. Yet their current efforts to regulate dust may enable urban areas to remain in attainment but will throw dusty, rural, agricultural areas into nonattainment needlessly."

The NCBA study concluded that the proposed revised standard of 65 to 85 micrograms per cubic meter would throw rural areas that are currently in attainment into nonattainment in Arizona, Colorado, Iowa, Missouri, Montana, Nebraska, New Mexico, Texas and Wyoming. Three states with areas currently in nonattainment at the current standards would hopelessly stay in nonattainment-California, Nevada and Utah.

So, just what happens if a site is ruled in nonattainment?

"States decide what measures are to be taken by the industry within the nonattainment area borders to control dust to the level needed for attainment by the EPA," Thies said. This is important because if states have regions that are in nonattainment, they are subject to huge fines and the EPA can withhold highway finds from those states, she said. "There are big hammers to get states and areas into attainment," she added. "There are often huge fines for businesses in that area that are causing it to be in nonattainment. This is a standard that states need to comply with."

And, each state comes up with different rules for their businesses to be in attainment, Thies said. "In California, they have a big document for best management practices to control dust for all agriculture," she said. "One is so silly as to suggest farmers should till their soil at night because there's more moisture in the air to keep dust down. Another suggests driving at lower speeds down dirt roads and only so many times per day."

Collateral damage

EPA, Thies said, considers both the current and proposed coarse particulate matter standards to be equal in health protection, but the real concern is the difference in urban versus rural areas.

"By definition agriculture is dusty and it makes all the difference in the world if you're in an urban or rural area," she said. Even if the EPA allows more violations per year, the lower standard is easier for rural areas to violate beyond the seven times per year.

"If it's equal in health protection, the EPA would be justified scientifically to retain the current standard," Thies said. She added one justification EPA has brought up is that this new standard would be an easier administrative burden for offices, but that's only the case in urban, non-dusty areas.

"We're not trying to get out from protecting people's health, but we're just trying to impress upon the EPA the devastating economic impact of doing something they admit provides equal health protection," Thies said. "Cattle producers support protecting the public health. It's just that these measures the EPA is considering seem to be only looking at urban areas and ag is essentially becoming collateral damage and that's not OK."

The problem is that Congress specifically set up the EPA only to be concerned with public health-and not the economic impacts of the regulations they deem appropriate for that protection.

Regulatory review

In January, President Barack Obama issued an executive order directing federal agencies to review their regulations and decide if they need to be modified or repealed, and to devise cost-effective regulations that promote job creation and economic growth.

Sen. Pat Roberts (R-KS) said that's fine, but it's not enough. The executive order exempts independent agencies such as the EPA from compliance. And so, in early Februrary, Roberts introduced the Regulatory Responsibility for our Economy Act of 2011, aiming to close the loopholes and directing all agencies and subagencies to comply. The bill, S.358, would also require all agencies to review how their regulations would affect businesses, stakeholders and pro-mote or restrict innovation. And, it would give the public more time and opportunities to comment on any proposed regulations.

"People are drowning under a tidal wave of regulations and every business is affected by these," Roberts said. Currently, the bill has 30 co-sponsors and Roberts anticipates more.

Rulemaking process

Thies said there is a long process for the EPA to propose a rule change and that it's already laid the foundation to make its coarse particulate standards twice as stringent as the current standard. NCBA expects a final rule sometime in the first part of 2012. There's been no comment period yet, but concerned farmers and ranchers should contact their Congressional representatives with their concerns about these and other proposed regulations. They should also contact their state governments and ask them to weigh in against the revised coarse particulate standard, she said.

Also on deck are regulations to cover ammonia for the first time under NAAQS, Thies said. "And, they're doing this in a way not authorized by Congress, and so we have big problems with that," she said.

"I think what's really going on here is that EPA has regulated the smokestack industry to the gills and agriculture is next," Thies said.

Jennifer M. Latzke can be contacted at 620-227-1807, or jlatzke@hpj.com.

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