On Thursday, December 8, 2011, the House is scheduled to consider H.R. 1633, the Farm Dust Regulation Prevention Act of 2011.  The bill was introduced by Rep. Kristi Noem (R-SD) on April 15, 2011, and referred to the Committee on Energy and Commerce.  On November 29, 2011, a mark-up was held and the bill was reported, as amended, by a vote of 33-16. 

H.R. 1633 will be considered under a rule that provides one hour of general debate equally divided and controlled by the chair and ranking minority member of the Committee on Energy and Commerce.  Additionally, the rule makes in order eight amendments, each debatable for ten minutes, and provides for one motion to recommit with or without instructions. 

H.R. 1633 would prohibit the Environment Protection Agency (EPA) from proposing, finalizing, implementing, or enforcing any regulation revising the National Ambient Air Quality Standard applicable to coarse particulate matter under the Clean Air Act for at least one year from the date of enactment. 

The bill would amend the Clean Air Act (CAA) by exempting nuisance dust (i.e. farm dust) from references to “particulate matter.”   H.R. 1633 would also limit the EPA’s regulation of nuisance dust to geographical areas where:

• Nuisance dust is not already regulated under state, tribal, or local law;
• The nuisance dust causes substantial adverse public health and welfare effects at ambient concentrations; and
• The benefits of applying standards and other requirements of the Act to nuisance dust outweigh the costs (including local and regional economic and employment impacts) of applying such standards and other requirements to nuisance dust. 

H.R. 1633 would define “nuisance dust” 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;
• Consists primarily of soil, other national or biological materials, or some combination thereof;
• Is not emitted directly into the ambient air from combustion, such as exhaust from combustion engines and emissions from stationary combustion processes; and
• Is not comprised of residuals from the combustion of coal. 

The bill would also reaffirm that the term “nuisance dust” does not include radioactive particulate matter produced from uranium mining or processing.

According to the House Committee on Energy and Commerce House Report 112-316, under the CAA, the 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 99^th 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 98^th percentile form and a level within the range of 65 to 85 micrograms per cubic meter.

H.R. 1633 would 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.

According to the Congressional Budget Office (CBO), implementing H.R. 1633 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.

Amendment No. 1—Rep. Rush (D-IL):  This amendment would clarify that nothing in the bill would prohibit the EPA Administrator from enforcing NAAQS for PM 2.5.  The amendment would also allow the EPA to regulate nuisance dust anywhere. 

Amendment No. 2—Del. Christensen (D-VI):  This amendment would allow the EPA the authority under the CAA to regulate nuisance dust if the Administrator determines that the state, local, or tribal laws are not meeting a “level requisite to protect public health.”

Amendment No. 3—Rep. Crawford (R-AR):  This amendment would direct the EPA Administrator to consult with the Secretary of Agriculture when modifying NAAQS with respect to nuisance dust.

Amendment No. 4—Rep. Markey (D-MA):  This amendment would alter the definition of nuisance dust to include “particulate matter containing arsenic or other heavy metals that are hazardous to human health.”

Amendment No. 5—Rep. Waxman (D-CA):  This amendment would alter the definition of nuisance dust so that particulate pollution produced from mining activities is not included, thus remaining subject to the CAA. 

Amendment No. 6—Rep. Flake (R-AZ):  This amendment would include a Sense of Congress that would read:  “It is the sense of the Congress that the Administrator of the EPA should implement an approach to excluding so-called ‘‘exceptional events’’, or events that are not reasonably controllable or preventable, from determinations of whether an area is in compliance with any NAAQS applicable to coarse particulate matter that—(1) maximizes transparency and predictability for states, tribes, and local governments; and (2) minimizes the regulatory and cost burdens states, tribes, and local governments bear in excluding such events.”

Amendment No. 7—Reps. Schock (R-IL) and Capito (R-WV):  This amendment would require the EPA to take agriculture jobs and the economic impact on the agriculture industry into account before they issue any new regulations relating to agriculture.  The amendment would require that if a proposed regulation was found to cause the loss of more than 100 agriculturally related jobs or a decrease in more than $1,000,000 in agriculturally related economic activity, then EPA would have to give notice to the state’s Congressional Delegation, Governor, and Legislature, and also hold a public hearing in the impacted state.

Amendment No. 8—Rep. Green (D-TX):  This amendment would require the EPA to report to Congress on the increase or decrease in the number of jobs as a result of enactment of the bill.