Misleading Legislation Uses Nonexistent EPA "Farm Dust" Regulations as Cover to Block Health Safeguards for Industrial Pollution

Under the fundamentally misleading title of the “Farm Dust Regulation Prevention Act of 2011,” identical bills have been introduced in both the House [pdf] and Senate [pdf] to block the Environmental Protection Agency from updating health standards for coarse particle or soot pollution, under the legislative guise of blocking nonexistent and unplanned EPA regulation of so-called “farm dust.”

These anti-science bills would deny Americans the right to know if the air is safe to breathe by blocking a scientific and health review of soot standards—before review has even begun. Worse, these bills would force EPA to ignore harmful soot pollution emitted overwhelmingly by industrial polluters like coal-burning power plants, incinerators, chemical plants, and oil refineries, along with diesel vehicles. Not farms, which the bills use as cynical cover for abolishing review of health standards for industrial pollution.

Let’s be clear. There are no EPA farm dust regulations. There are no such proposed regulations. There are no EPA intentions for such regulations. EPA Administrator Lisa Jackson has specifically disavowed such intentions in Congressional testimony when quizzed by suspicious Congressmen.

The only suggestion of EPA regulating farm dust is in the misleading title of these fundamentally flawed and irresponsible bills. Irresponsible because the bills shut down the scientific process of reviewing medical evidence to identify levels of coarse particle pollution levels that are harmful to human health.

Flawed and misleading because that coarse particle pollution comes overwhelmingly from industrial polluters, not farmers. Who says so? The Bush administration in 2006, when EPA last reviewed the protectiveness of health standards for coarse particle pollution.

In its 2006 review of the science on soot pollution (the very type of study that these bills would block), the Bush Administration found [pdf] that the following activities are the major sources of this type of soot pollution (table 2-2):

• Fly ash from coal combustion;
• Industrial processes;
• Tire and paving materials from roads;
• Mining and mineral processes; and
• Construction and demolition activities.

Where were the bills then targeting (nonexistent) EPA regulations under a Republican administration for (not) regulating farm dust? That’s the identical situation today under a Democratic administration, yet the response has been Congressional hysteria and a central plank in Representative Eric Cantor’s Pollution Plan. Where were similar bills during the past 4 decades in which EPA dutifully has set coarse particle pollution standards as the Clean Air Act requires, without once imposing or suggesting federal limits on “farm dust”?

In the forty-plus years since the bi-partisan Clean Air Act was adopted, Congress never has stepped in to shut down the scientific review process telling Americans how much air pollution is harmful to our health. Congress never has even contemplated shutting down that process over an urban myth rooted in misunderstanding, at best, and mistrust and ulterior motives, at worst.

What do these bills do? These bills attack clean air standards for soot pollution that EPA has not even proposed, much less adopted. The legislation would prohibit EPA from reviewing air quality standards for so-called “coarse particle pollution” or PM10, often known as soot. (The particles are called “PM10” because they are microscopic particles that measure between 2.5 and 10 microns in diameter – no more than seven times smaller than the diameter of one human hair.) The bills prevent EPA even from examining new science or proposing new standards for soot pollution. Even if EPA and independent scientists found that current levels of soot pollution from any and all polluters were dangerous to our health or our children’s health, the dirty soot bills would prevent the agency from setting standards to protect Americans. In doing so, the legislation would expose our families to the dangerous health impacts from this pollution.

Revealingly, the governing legal prohibition in the bills does not even mention agricultural operations or farm dust, stating:

[EPA] 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.

This language plainly blocks proposal, finalization, implementation, or enforcement of any updated health standards for soot pollution regardless of whether that pollution comes from power plants or incinerators or oil refineries or chemical plants.

Calling this legislation the “Farm Dust Regulation Prevention Act of 2011” is like characterizing legislation to block health-based standards for smog pollution as the “Boy Scout Bonfire Regulation Prevention Act of 2011,” when EPA does not and will not limit smog-forming pollution from Boy Scouts bonfires. When the process of merely identifying unhealthy levels of smog pollution does not impose limits on any entity. And when the biggest emitters of smog-forming pollution are coal-burning power plants, oil refineries and other large industrial polluters – corporate entities that the bill would shield from cleaning up pollution that is hazardous.

But casting a bill that blocks health standards for soot pollution from power plants and oil refineries as salvation for "farm dust" is worse than calculated misrepresentation. Worse because the stratagem co-opts and scares farmers with a leading falsehood, while letting the biggest polluters responsible for the soot pollution hide behind that falsehood, cackling over their windfall from cynical Washington politics.

What is soot pollution and its health consequences? Soot – also known as coarse particulate pollution or PM10 – can trigger asthma attacks, heart attacks, strokes, and even death. Soot pollution is a mixture of materials such as metals, organics, smoke and acids. The mixture is often embedded with toxic substances and infiltrates the airways and lungs, often penetrating past the body’s natural defensive systems. Soot pollution of this size is emitted by a variety of pollution sources, including power plants, oil refineries and diesel engines. When inhaled, these particles can cause serious health problems, including [pdf]:

• Hospital admissions for heart disease;
• Increased hospital admissions and doctors’ visits for respiratory disease;
• Increased respiratory symptoms in children;
• Decreased lung function; and
• Even premature death in people with heart or lung disease.

What does the Clean Air Act require to protect Americans from soot pollution? Under the Clean Air Act, protecting Americans against harmful air pollution like smog and soot involves a two stage process. The first stage requires EPA to identify levels of air pollution that are unhealthy for humans, based upon the best medical and scientific evidence. EPA then establishes permissible concentrations of that pollution in the air that are necessary to protect public health with an adequate margin of safety.

The second stage involves EPA and states identifying the sources of that pollution that are appropriate to control, based upon considerations such as the magnitude of those industries' contributions to the problem, the cost-effectiveness of controls, and the availability and technological feasibility of controls. Only at this second stage are specific polluters identified for control by states and EPA. Even then, federal control measures adopted by EPA cover large and ubiquitous sources of industrial pollution, and have never covered “farm dust.”

The House and Senate soot bills prohibit EPA from conducting this first stage – the health standard-setting process. The bills bar EPA from identifying – and telling Americans – how much soot pollution in the air is unhealthy. In other words, these amendments bar EPA from telling the truth to Americans about the safety of the air we breathe, instead forcing the government to lie to us.

EPA does not require pollution reductions from any specific sources or sectors pursuant to this standard-setting process. Precisely for this reason, the claim that EPA is attempting to set standards for “farm dust” is profoundly wrong.  

It is the health standard-setting process that EPA Assistant Administrator for Air, Gina McCarthy, described in an April letter responding to Senator Mike Johanns (R-N.E.). McCarthy noted that clean air standards “are set to protect public health from outdoor air pollution and are not focused on any specific category of sources or any particular activity (including activities related to agriculture or rural roads).”

Anyone familiar with the Clean Air Act would read into that unremarkable response nothing more than a summary explanation of the Act’s health standard-setting process, which deals exclusively with levels of air pollution that are harmful to Americans, regardless of their source. McCarthy was simply describing the way the law has worked for over forty years and the way it is required to work.

Senator Johanns, on the other hand, reacted to McCarthy’s response with paranoia and mistrust, reading into McCarthy's matter-of-fact description of the stage 1 standard-setting process a hidden, unspoken EPA agenda to use the stage 2 control measure process to regulate farm dust.

Subsequently, Johanns introduced the irresponsible bill [pdf] to block EPA from setting health standards protecting Americans against industrial soot pollution. Following an interview with Senator Johanns, Politico reported that he said the quoted passage from McCarthy’s letter left “ambiguous whether EPA particulate matter controls would include dust on farms”:

“I think they are playing this both ways and we want certainty,” Johanns said. “So it’s not that I don’t believe them, it’s very simply they don’t have their act together.”

The Senator is just wrong. He does not understand the way the law works and has worked for over forty years.

For whatever reason, Johanns is so ready to believe that EPA officials “don’t have their act together” that he ignores the most obvious, accurate explanation: EPA is not being cagey, but correctly describing how the law has always required the agency to set clean air standards – based on the best medical and scientific evidence indicating what standards are necessary to protect public health with an adequate margin of safety.

This means that soot pollution health standards will not regulate “farm dust” nor impose any restrictions on farms. When it comes to the law’s second stage, when control measures for particular pollution sources are identified, EPA never has adopted pollution control obligations for “farm dust.” Finally, in response to distrustful and paranoid inquiries from Congress, EPA Administrator Lisa Jackson has expressly said EPA has no intention of imposing limits on “farm dust.” (subscription required)

The Clean Air Act already excludes air pollution caused by natural events. The Act already excludes from compliance with clean air standards so-called “exceptional events” that are caused by natural events that affect air quality and are not reasonably controllable or preventable. Natural events include things like high winds, wildfires, dust storms, volcanoes and natural disasters. Air pollution caused or exacerbated by these qualifying activities already is exempt from compliance with health-based clean air standards for soot pollution. In fact, EPA has specifically identified “emissions from mining and agricultural activities” [pdf] as the types of things that could constitute “exceptional events” and that would be specifically exempted when determining if states attain air quality standards. Special statutory treatment of “exceptional events” thus ensures that air pollution exacerbated by natural events such as dust storms or high winds is not considered when assessing compliance with national health standards for soot pollution or other pollutants.

Where is EPA in the soot standard-setting process? EPA has not even proposed, much less finalized, new standards to replace the current soot standards. The agency is currently studying the science behind the soot standards with the assistance of EPA’s independent expert science advisors, as required by the Clean Air Act. The congressional soot bills would shut down this scientific process — but just during the remainder of the Obama administration, another patent indication of the bills' politicized motivations. After comprehensively reviewing the relevant science and medical literature, the law requires EPA to issue a proposal, even if it proposes to keep soot standards exactly the same.

EPA has set standards for soot pollution since 1971. EPA last re-examined standards for coarse and fine soot pollution in 2006, at which time the agency decided to keep the coarse particle standards at the same level as they were set in 1997. Preliminary documents [pdf] from EPA’s current review note that the agency thinks it would be appropriate to retain existing coarse particle standards at the current level. (e.g., ES-2)

So what caused the “farm dust” myth? In an April policy assessment reviewing the PM10 soot pollution standards, EPA staff scientists and the agency’s outside science advisors “consider[ed] the potential appropriateness” of changing the form of the current PM10 standard from a 99th percentile form to a 98th percentile form. [pdf, 3-32]. The assessment document explained this would make the standard “more reflective of the health risks posed by elevated pollutant concentrations,” i.e., “spikes,” and make the PM10 standard consistent with the 98th percentile form of the 1997 PM2.5 standard. [pdf, 3-32]

Additionally, the assessment suggested a possible change in the level of the standard to between 65-85 µg/m3. The document said [pdf] such a change either would be “generally equivalent” to the current standard (at 75-80), slight less protective (at 85), or slightly more protective (65-75), depending upon whether EPA Administrator Jackson even decided to propose changes at a later date. Moreover, the assessment did not recommend any particular standard or form for the Administrator's adoption.

As noted, EPA and external scientists believed that the discussed changes would make a revised standard essentially equivalent to the current coarse particle standards. Lobbyists for various trade association, such as the National Beef Cattlemen’s Association, disagreed — but openly acknowledged EPA scientists’ belief that a potential revised standard would be “essentially ‘equivalent for health protection” compared to the current standard.

This created an honest difference of opinion over whether the mere suggestion of a combined change in the level and form of the PM10 standard would or would not affect the standard's stringency.

Who is right? I don't know. And let's be real: neither does Congress. There were no hearings before these bills were introduced. And ask yourself whether the congressional offices that are co-sponsoring these bills really even understand these issues: do these offices know which competing view is correct about the consequence of a combined change in the level of the PM10 standards by 65-85  µg/m3, in conjunction with a format shift from the 99th percentile to the 98th percentile?

The worst that can be said of EPA staff and the agency’s science advisors is that they were terribly naïve about the hysterical lobbying and political maelstrom that would result from just discussing these possible changes.

Cutting through the hysteria and disinformation, what matters is that EPA Administrator Jackson has not purported to resolve this difference of opinion one way or the other. There has not been so much as an EPA proposal to alter the current coarse particle standard. And yet dozens of Congressmen and Senators just know that EPA is trying to regulate farm dust, and they want to shut down a scientific process to inform Americans what amount of soot pollution is unhealthy.

This obscure difference of opinion is the genesis of the farm dust urban myth.

This disagreement over minutiae so obscure that it makes even my expert eyes glaze over, this is what industry lobbyists transmogrified into the specter of a black helicopter-led plot by the federal government swooping onto the fields of helpless farmers to limit “farm dust.”

During my nearly twenty years as a Clean Air Act attorney, I have never seen a more cynical, fraudulent misrepresentation of the facts and law to back an industry lobbying campaign that yielded equally disingenuous Congressional legislation.

Tobacco lobbyists and pathological liars should tip their hats out of professional regard for this masterful industry lobbying campaign. A campaign that turned the preliminary discussions by an unknown advisory body about obscurities concerning primarily industrial soot pollution – into fact-free hysteria over farm dust regulation. Which then produced legislation co-sponsored by multiple members of the United States Congress to block a scientific process to set health standards protecting all Americans from industrial pollution.

These bills could be a poster child for Americans' exasperation with Congress: rather than solving real problems for Americans, the legislation targets nonexistent regulations that do not address a nonexistent problem and that are based on nonexistent intentions.

But the bills cause very real damage, since the legislation would block a forty-plus year Clean Air Act obligation to identify clean air standards necessary to protect Americans' health with an adequate margin of safety. The bills would deny Americans their right to know something as basic as whether the air is safe to breathe. The bills would allow dangerous industrial pollution from the nation's biggest polluters to hide behind a deceptive industry lobbying campaign to scare farmers and ranchers with an urban myth about an EPA bogeyman.

The example of these soot pollution bills, more than any in the 112th Congress, shows the extent to which some in Congress appear willing to ignore science, misrepresents facts and the law, and harm public health – all in order to carry out the wishes of corporate lobbyists.

Ridiculous urban myths that once were limited to paranoid corners of the Internet or the rantings of Glenn Beck now are being introduced as congressional legislation. My colleague Jon Devine, for example, has written about another urban myth involving an Internet conspiracy that EPA was about to regulate spilled milk the same way they do oil spills.

Some members of Congress, like Senator Tim Johnson (D-S.D.) have the courage and integrity to call these soot bills what they are, “ridiculous and an attempt to scare farmers.” But too many members are seduced or cowed by the legislation’s title and misunderstanding, at best. At worst, some members may be looking for yet another club to bludgeon EPA, a partisan cudgel to force more principled representatives to take hard but honest votes, or cynical cover to deregulate the biggest industrial polluters.  

What has become of our Congress if multiple members will introduce legislation based upon such gross falsehoods propagated by calculating industry lobbyists? If senators and representatives will deny all Americans the protectiveness, the honesty, of a common good as basic as clean air by co-opting the all-American image of the hard-working farmer to allow oil refineries and incinerators and hazardous chemical facilities to pump more toxic pollution into American communities?

The coming weeks may provide an answer to these questions. The just-introduced Republican jobs package includes Senator Johanns’ “Farm Dust Regulation Prevention Act of 2011” (subscription req’d) – because blocking nonexistent EPA regulations will produce jobs?

Johanns has vowed to attach his bill as an amendment to any legislative vehicle he can, including legislation that Congress must adopt to fund the entire federal government for the remainder of fiscal year 2012. House Republicans have scheduled a legislative hearing later this month to push the “Farm Dust Regulation Prevention Act of 2011” through the House, continuing their march through the dirty agenda in the Cantor Pollution Plan.

These efforts reflect a concerted determination to weaken the Clean Air Act and force Americans to live with less protective clean air standards against industrial pollution.

All in service of a dirty air legislative deception.