19–006 

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 


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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. 


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• 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, trafficrelated 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 


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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 existVerDate Mar 15 2010 06:43 Dec 07, 2011 Jkt 019006 PO 00000 Frm 00004 Fmt 6659 Sfmt 6602 E:\HR\OC\HR316.XXX HR316

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ing 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 


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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, 


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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 


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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 


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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 

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sociation, 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. 


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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. 


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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) 


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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 


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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. 


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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. 


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(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. 

* * * * * * * 


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1Testimony 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). 

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. 

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. 


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2Testimony 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 

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

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 


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4Testimony 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). 5This review and comment period is required under 42 USC 85 § 7409(d)(1). 

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. 

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 deVerDate Mar 15 2010 06:43 Dec 07, 2011 Jkt 019006 PO 00000 Frm 00026 Fmt 6604 Sfmt 6604 E:\HR\OC\HR316.XXX HR316

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6 ‘‘Bill to ban phantom EPA dust rule approved by House panel,’’ November 2, 2011, Washington Post. 7Letter from Lisa Jackson, EPA Administrator, to Senator Debbie Stabenow, Oct. 14, 2011, 

available at http://epa.gov/pm/pdfs/20111014Stabenow.pdf. 8 ‘‘EPA Announcement a Victory for Agriculture,’’ Senator Mike Johanns, October 17, 2011, 

http://johanns.senate.gov. 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. 

finitively 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

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

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

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. 


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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. 


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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 healthbased 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, 


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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). 5Statement of Chairman Ed Whitfield, Markup of H.R. 1633, The Farm Dust Regulation Prevention Act of 2011, 112th Cong. (Nov. 3, 2011). 6Testimony 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). 

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

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. 

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 socalled 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. 


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7 EPA staff telephone communication with Democratic Committee staff (Oct. 20, 2011). 

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. 

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 


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8See, 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). 

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 noncombustion 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

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 


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33 

9Letter to Ranking Member Henry Waxman from The Johns Hopkins Center for a Livable 

Future (Nov. 1, 2011). 10McCarthy testimony. 

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. 

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

[U]nlike the terms ‘‘fine particle’’ and ‘‘coarse particle,’’ 

the term ‘‘nuisance dust’’ is not a scientific or scientificallydefined 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 healthbased 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 


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34 

11McCarthy testimony. 

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

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. 


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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. 

Æ 


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