H.R. 1633, THE FARM DUST REGULATION 

PREVENTION ACT OF 2011 

HEARING 

BEFORE THE

SUBCOMMITTEE ON ENERGY AND POWER 

OF THE

COMMITTEE ON ENERGY AND 

COMMERCE 

HOUSE OF REPRESENTATIVES 

ONE HUNDRED TWELFTH CONGRESS 

FIRST SESSION 

OCTOBER 25, 2011 

Serial No. 112–99 

( 

Printed for the use of the Committee on Energy and Commerce 

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H.R. 1633, THE FARM DUST REGULATION PREVENTION ACT OF 2011 

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76–176 PDF 2012

H.R. 1633, THE FARM DUST REGULATION 

PREVENTION ACT OF 2011 

HEARING 

BEFORE THE

SUBCOMMITTEE ON ENERGY AND POWER 

OF THE

COMMITTEE ON ENERGY AND 

COMMERCE 

HOUSE OF REPRESENTATIVES 

ONE HUNDRED TWELFTH CONGRESS 

FIRST SESSION 

OCTOBER 25, 2011 

Serial No. 112–99 

( 

Printed for the use of the Committee on Energy and Commerce 

energycommerce.house.gov 

COMMITTEE ON ENERGY AND COMMERCE 

FRED UPTON, Michigan 

Chairman 

JOE BARTON, Texas 

Chairman Emeritus 

CLIFF STEARNS, Florida 

ED WHITFIELD, Kentucky 

JOHN SHIMKUS, Illinois 

JOSEPH R. PITTS, Pennsylvania 

MARY BONO MACK, California 

GREG WALDEN, Oregon 

LEE TERRY, Nebraska 

MIKE ROGERS, Michigan 

SUE WILKINS MYRICK, North Carolina 

Vice Chairman 

JOHN SULLIVAN, Oklahoma 

TIM MURPHY, Pennsylvania 

MICHAEL C. BURGESS, Texas 

MARSHA BLACKBURN, Tennessee 

BRIAN P. BILBRAY, California 

CHARLES F. BASS, New Hampshire 

PHIL GINGREY, Georgia 

STEVE SCALISE, Louisiana 

ROBERT E. LATTA, Ohio 

CATHY MCMORRIS RODGERS, Washington 

GREGG HARPER, Mississippi 

LEONARD LANCE, New Jersey 

BILL CASSIDY, Louisiana 

BRETT GUTHRIE, Kentucky 

PETE OLSON, Texas 

DAVID B. MCKINLEY, West Virginia 

CORY GARDNER, Colorado 

MIKE POMPEO, Kansas 

ADAM KINZINGER, Illinois 

H. MORGAN GRIFFITH, Virginia 

HENRY A. WAXMAN, California 

Ranking Member 

JOHN D. DINGELL, Michigan 

Chairman Emeritus 

EDWARD J. MARKEY, Massachusetts 

EDOLPHUS TOWNS, New York 

FRANK PALLONE, JR., New Jersey 

BOBBY L. RUSH, Illinois 

ANNA G. ESHOO, California 

ELIOT L. ENGEL, New York 

GENE GREEN, Texas 

DIANA DEGETTE, Colorado 

LOIS CAPPS, California 

MICHAEL F. DOYLE, Pennsylvania 

JANICE D. SCHAKOWSKY, Illinois 

CHARLES A. GONZALEZ, Texas 

JAY INSLEE, Washington 

TAMMY BALDWIN, Wisconsin 

MIKE ROSS, Arkansas 

JIM MATHESON, Utah 

G.K. BUTTERFIELD, North Carolina 

JOHN BARROW, Georgia 

DORIS O. MATSUI, California 

DONNA M. CHRISTENSEN, Virgin Islands 

KATHY CASTOR, Florida 

SUBCOMMITTEE ON ENERGY AND POWER

ED WHITFIELD, Kentucky 

Chairman 

JOHN SULLIVAN, Oklahoma 

Vice Chairman 

JOHN SHIMKUS, Illinois 

GREG WALDEN, Oregon 

LEE TERRY, Nebraska 

MICHAEL C. BURGESS, Texas 

BRIAN P. BILBRAY, California 

STEVE SCALISE, Louisiana 

CATHY MCMORRIS RODGERS, Washington 

PETE OLSON, Texas 

DAVID B. MCKINLEY, West Virginia 

CORY GARDNER, Colorado 

MIKE POMPEO, Kansas 

H. MORGAN GRIFFITH, Virginia 

JOE BARTON, Texas 

FRED UPTON, Michigan (ex officio) 

BOBBY L. RUSH, Illinois 

Ranking Member 

JAY INSLEE, Washington 

KATHY CASTOR, Florida 

JOHN D. DINGELL, Michigan 

EDWARD J. MARKEY, Massachusetts 

ELIOT L. ENGEL, New York 

GENE GREEN, Texas 

LOIS CAPPS, California 

MICHAEL F. DOYLE, Pennsylvania 

CHARLES A. GONZALEZ, Texas 

HENRY A. WAXMAN, California (ex officio) 

(II) 

(III) 

C O N T E N T S 

Page 

Hon. Ed Whitfield, a Representative in Congress from the Commonwealth 

of Kentucky, opening statement ......................................................................... 1 

Prepared statement .......................................................................................... 3 

Hon. Mike Pompeo, a Representative in Congress from the State of Kansas, 

opening statement ................................................................................................ 9 

Hon. Bobby L. Rush, a Representative in Congress from the State of Illinois, 

opening statement ................................................................................................ 9 

Hon. Fred Upton, a Representative in Congress from the State of Michigan, 

opening statement ................................................................................................ 10 

Prepared statement .......................................................................................... 12 

Hon. Joe Barton, a Representative in Congress from the State of Texas, 

opening statement ................................................................................................ 13 

Hon. Pete Olson, a Representative in Congress from the State of Texas, 

opening statement ................................................................................................ 13 

Hon. Henry A. Waxman, a Representative in Congress from the State of 

California, opening statement ............................................................................. 13 

WITNESSES

Hon. Kristi L. Noem, a Representative in Congress from the State of South 

Dakota, opening statement ................................................................................. 15 

Prepared statement .......................................................................................... 18 

Hon. Robert Hurt, a Representative in Congress from the Commonwealth 

of Virginia ............................................................................................................. 23 

Prepared statement .......................................................................................... 25 

Regina McCarthy, Assistant Administrator for Air and Radiation, Environmental Protection Agency .................................................................................... 46 

Prepared statement .......................................................................................... 48 

Answers to submitted questions ...................................................................... 354 

Steve Foglesong, Ranch Owner, Black Gold Cattle Company, on behalf of 

National Cattlemen’s Beef Association .............................................................. 149 

Prepared statement .......................................................................................... 152 

Answers to submitted questions ...................................................................... 357 

Kevin Rogers, President, Arizona Farm Bureau Federation, on behalf of 

American Farm Bureau Federation ................................................................... 218 

Prepared statement .......................................................................................... 220 

Answers to submitted questions ...................................................................... 363 

Pete Lien, President, Peter Lien & Sons, Inc., on behalf of National Stone, 

Sand & Gravel Association .................................................................................. 234 

Prepared statement .......................................................................................... 236 

Answers to submitted questions ...................................................................... 366 

Kurt E. Blase, Partner, Holland & Knight, on behalf of Coarse Particulate 

Matter Coalition. .................................................................................................. 250 

Prepared statement .......................................................................................... 252 

Answers to submitted questions ...................................................................... 367 

Till von Wachter, Associate professor of economics, Columbia University ......... 259 

Prepared statement .......................................................................................... 261 

John Walke, Senior Attorney and Clean Air Director, National Resources 

Defense Council .................................................................................................... 265 

Prepared statement .......................................................................................... 267 

Answers to submitted questions ...................................................................... 369 

Gregory Wellenius, Assistant Professor of Epidemiology, Brown University ..... 327 

Prepared statement .......................................................................................... 329 

Page

IV 

SUBMITTED MATERIAL

H.R. 1633, A Bill to establish a temporary prohibition against revising any 

natinoal ambient air quality standard applicable to coarse particulate matter, to limit Federal regulation of nuisance dust in areas in which such 

dust is regualted under State, tribal, or local law, and for other purposes, 

submitted by Mr Whitfield .................................................................................. 6 

Letters, dated October 3, 2011, October 12, 2011, October 14, 2011, and 

October 17, 2011, to committee and subcommittee leadership and Mrs. 

Noem in support of H.R. 1633, submitted by Mr. Gardner .............................. 37 

‘‘Guide to Agricultural PM10 Best Management Practices: Agriculture Improving Air Quality,’’ Second Edition, 2008, Governor’s Agricultural Best 

Management Practices Committee, State of Arizona, submitted by Mr. 

Gardner ................................................................................................................. 70 

Report, ‘‘Livestock Best Management Practices to Reduce PM10,’’ undated, 

State of Arizona, submitted by Mr. Gardner ..................................................... 101 

Letter, dated October 24, 2011, from Arvin Ganesan, Associate Administrator, 

Environmental Protection Agency, to Mr. Rush, submitted by Mr. Rush ....... 143 

(1) 

H.R. 1633, THE FARM DUST REGULATION 

PREVENTION ACT OF 2011 

TUESDAY, OCTOBER 25, 2011 

HOUSE OF REPRESENTATIVES, SUBCOMMITTEE ON ENERGY AND POWER, COMMITTEE ON ENERGY AND COMMERCE, Washington, DC. 

The subcommittee met, pursuant to call, at 10:06 a.m., in room 

2322 of the Rayburn House Office Building, Hon. Ed Whitfield 

(chairman of the subcommittee) presiding. 

Members present: Representatives Whitfield, Sullivan, Shimkus, 

Walden, Terry, Burgess, Bilbray, Scalise, McMorris Rodgers, Olson, 

McKinley, Gardner, Pompeo, Griffith, Barton, Upton (ex officio), 

Rush, Markey, and Waxman (ex officio). 

Staff present: Allison Busbee, Legislative Clerk; Cory Hicks, Policy Coordinator, Energy and Power; Heidi King, Chief Economist; 

Ben Lieberman, Counsel, Energy and Power; Mary Neumayr, Senior Energy Counsel; Alison Cassady, Democratic Senior Professional Staff Member; Kelley Greenman, Democrat Legislative Associate; Caitlin Haberman, Democratic Policy Analyst; and Alexandra 

Teitz, Democrat Senior Counsel, Energy and Environment. 

OPENING STATEMENT OF HON. ED WHITFIELD, A REPRESENTATIVE IN CONGRESS FROM THE COMMONWEALTH OF KENTUCKY 

Mr. WHITFIELD. This hearing will come to order. 

Today we will discuss H.R. 1633, the Farm Dust Regulation Prevention Act of 2011. In most respects, this hearing will be similar 

to many of the others our subcommittee has held this year. As you 

know, we have jurisdiction over EPA’s Clean Air Act regulations, 

and we have an obligation to the American people to ensure that 

new regulations do not impose burdensome costs or obstruct job 

creation, particularly at a time when our unemployment is high, 

our economy is struggling and uncertainty is widespread. 

EPA’s unprecedented wave of stringent and inflexible regulations 

pose a serious threat to the economy, on job creation, in our opinion, which is why we have held an unprecedented number of hearings on the plethora of regulations issued by EPA. The only difference between today’s hearing and most of the others is the target of the EPA regulation at issue. Many of the previous hearings 

dealt with rules most directly impacting manufacturing and energy 

production. Today, we discuss EPA’s particulate matter standards 

and their potential impact on family farms and small businesses in 

rural America. 

2 

EPA is in the process of revising its National Ambient Air Quality Standards for particulate matter. This includes PM10, which is 

coarse particulate matter, also known as dust. Although EPA has 

said it will not propose changes to its existing dust standard, there 

are several reasons for uncertainty about the outcome of EPA’s ongoing review. EPA has discussed further regulation of farm dust 

since 1996. Most of us believe that the current PM10 standard of 

150 micrograms per cubic meter is sufficient and should not be 

changed, especially given the absence of evidence that farm dust 

poses a health threat. 

In April 2011, EPA issued a policy assessment that recommends 

this standard either be unchanged or lowered to 65 to 85 

micrograms per cubic meter. The assessment also recommends a 

change in the way compliance is measured. Any changes to the current standard would almost certainly force States and localities to 

impose additional restraints on farming and other operations in 

rural America in order to comply. 

It is possible that EPA will ultimately retain the current PM10

standard in its pending review, but it should be noted that the last 

time EPA considered revising its standard for PM10 in 2006, the 

final version did not adopt an exemption for agricultural dust that 

had been on the table at an earlier stage. 

[The prepared statement of Mr. Whitfield follows:] 

3 


76176.001
4 


76176.002
5 

[H.R. 1633 follows:] 

6 


76176.003
7 


76176.004
8 


76176.005
9 

Mr. WHITFIELD. At this time I would like to recognize the gentleman from Kansas, Mr. Pompeo, who is a sponsor, I believe, of 

this legislation, for 1 minute. 

OPENING STATEMENT OF HON. MIKE POMPEO, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF KANSAS 

Mr. POMPEO. Thank you, Mr. Chairman. Thank you for holding 

this hearing on H.R. 1633. 

You know, I represent an agricultural State and my district has 

lots of production agriculture. It is part of who we are. The issues 

that these folks face are like a lot of other small businesses—crushing regulations and tax burdens, but some have a very different 

flavor like this one. 

The issue we are talking about today, the effort to regulate farm 

dust as a particulate pollutant, is one of the most concerning and 

potentially most burdensome regulations coming from Washington, 

D.C., in my 10 months here so far. Now, the EPA’s recent announcement that it currently has no intention of imposing new regulations on dust sounds to me like a purely political and likely temporary decision and frankly doesn’t give our farmers in Kansas or 

across the country the certainty they need. The fact remains that 

EPA staff has suggested tightening this regulation, and that tightening of the regulation would include farm dust. 

Like many other sectors in our economy, we need long-term planning. We need the ability for farmers to know what they can and 

can’t do. That is why I am proud to be a cosponsor of the Farm 

Dust Regulation Prevention Act, and I am pleased to have Congresswoman Noem and Congressman Hurt here this morning to 

testify about it. Thank you both for being here. 

With that, I yield back my time. 

Mr. WHITFIELD. Thank you very much, and I will yield back the 

balance of my time as well, and I recognize Mr. Rush for 5 minutes 

for his opening statement. 

OPENING STATEMENT OF HON. BOBBY L. RUSH, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF ILLINOIS 

Mr. RUSH. I want to thank you, Mr. Chairman, and I also want 

to thank all the distinguished witnesses who will be here at today’s 

hearing and testifying. 

Mr. Chairman, we are here to discuss the Farm Dust Regulation 

Prevention Act of 2011, even though last week EPA made the decision that it would not propose any changes to the current standard 

of 10 PM or 10 micrometers for coarse particulate matter. The 

basis of today’s hearing is H.R. 1633, the bill introduced by Representative Kristi Noem of South Dakota, who we are pleased to 

welcome to the subcommittee for her testimony today. 

H.R. 1633 would bar EPA from revising its rules for coarse particulates for 1 year. It would also create a permanent exemption for 

‘‘nuisance’’ dust from farms and country roads. I look forward to 

hearing from Assistant Administrator of the Office of Air and Radiation, Gina McCarthy, as well as other stakeholders testifying to 

better understand the impact that this proposed legislation will 

have on the Clean Air Act as well as on public health. 

10 

In particular, I have concerns over section 3 of H.R. 1633, which 

states that the Clean Air Act does not apply to, again, I will quote, 

‘‘nuisance’’ dust and would eliminate EPA’s authority under the 

Clean Air Act to regulate anything that constitutes nuisance dust 

except narrowly defined circumstances. As currently drafted, nuisance dust is defined as particulate matter that is, one, generated 

from natural sources, unpaved roads, agricultural activities, earthmoving or other activities typically conducted in rural areas, or, 

two, consisting primarily of soil, other natural or biological materials or wind-blown dust. However, the phrase ‘‘other activities 

typically conducted in rural areas’’ is much too broad and could potentially include industrial activities that are commonly located 

outside of urban areas that will be exempt from the Clean Air Act 

regulation including power plants, ethanol refineries, mines and 

smelters, and pulp and paper mills. Section 3 raises serious concerns over whether EPA could continue to implement fine and 

coarse particle pollution programs or whether the EPA could ever 

adopt or implement revised fine or coarse particle standards. 

However, H.R. 1633 takes certain types of particulate matter out 

of the entire Clean Air Act altogether. This bill could potentially 

forever prohibit EPA from regulating mercury from coal-fired 

power plants based on the argument that mercury is emitted as 

particulate matter from coal-fired power plants and burning coal to 

generate electricity is an activity typically occurring in rural areas. 

Additionally, as written, section 3 is not limited to stationary 

sources so H.R. 1633 calls into question EPA’s ability to set tailpipe 

emission standards for new vehicles or engines to limit their fine 

particulate pollution as well as the ability to enforce existing particulate standards for new vehicles or engines. 

So I think it is important, Mr. Chairman, to clarify the bill’s language to avoid unintended consequences to the overall Clean Air 

Act. 

Mr. Chairman, I look forward to hearing from all of the panelists 

on the merits and necessity of H.R. 1633, and with that, I yield 

back the balance of my time. 

Mr. WHITFIELD. Thank you, Mr. Rush. 

At this time I would recognize the full committee chairman, Mr. 

Upton of Michigan, for 5 minutes. 

OPENING STATEMENT OF HON. FRED UPTON, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF MICHIGAN 

Mr. UPTON. Well, thank you, Mr. Chairman. 

Today’s hearing looks at a source of major concern to the ag sector and rural America, which is EPA’s regulation of coarse particulate matter, otherwise known as dust. 

H.R. 1633, the Farm Dust Regulation Prevention Act of 2011, 

provides relief from this regulatory threat, and I welcome two of 

the cosponsors of this bipartisan legislation, Kristi Noem of South 

Dakota and Robert Hurt of Virginia, who are here today. 

The very last thing that our struggling economy needs is new 

costs and regulatory burdens on farmers and small businesses 

across rural America. They already face indirect consequences from 

EPA’s costly regulatory agenda, and now they are rightfully concerned about the threat of direct regulation of their operations. 

11 

The EPA recently announced that it plans to propose retaining 

the existing standard for coarse particulate matter, and I appreciate those assurances. But like the stakeholders that we will hear 

from today, I am not at all satisfied with this step for the simple 

reason that regulatory uncertainty will remain. 

EPA’s proposal could change throughout the review process. The 

ag community’s concerns may not be fully addressed. And even if 

the final standard contains no changes, it is always subject to court 

challenge. For these reasons, EPA’s insistence that it does not plan 

to change the rule is far from a guarantee that such a change 

would never come to pass. 

In the face of this ongoing regulatory uncertainty, this legislation 

makes good sense. The bill is targeted. It prevents EPA from setting a new coarse particulate matter standard for 1 year, and it 

also makes clear that State, tribal, and local governments have authority to regulate so-called nuisance dust common across rural 

America. The State and local emphasis is appropriate for dust, 

which is a local issue. 

The bill gives EPA authority to regulate nuisance dust in the absence of State or local action, and after both costs and benefits are 

taken into account. That is common sense and it protects the interests of our vital rural economy. 

I commend our colleagues for putting together their legislation 

on the table. If EPA is serious that it does not intend to regulate 

farm dust, it should embrace this legislation. 

I yield to the gentleman from Texas, Mr. Barton. 

[The prepared statement of Mr. Upton follows:] 

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76176.006
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OPENING STATEMENT OF HON. JOE BARTON, A 

REPRESENTATIVE IN CONGRESS FROM THE STATE OF TEXAS 

Mr. BARTON. Well, thank you, Congresswoman Noem and Congressman Hurt for introducing this and being here. We are beginning to have some dust storms like we had back in the 1930s. We 

had a very bad one in Lubbock, Texas, last week. There are differences of opinion as to the cause of the storms but it appears that 

we are in a cycle where the weather conditions are such that we 

are going to have dryer weather and a little bit warmer temperatures and so we are going to have dust storms. 

EPA back in 2006 suggested that we shouldn’t regulate farm 

dust. I wish the EPA would dust that proposal off and institute it 

instead of even thinking about regulating farm dust. As the chairman just said, this legislation is preemptive in nature and I would 

hope that we can move it very expeditiously. We don’t want to have 

a re-creation of the 1930s, and because of farm practices and some 

of the dam projects that have been constructed, we shouldn’t, but 

we also don’t want to overreact and regulate something that God 

himself or herself can’t regulate. 

So with that, I would yield the balance of the time to Mr. Olson 

of Texas. 

OPENING STATEMENT OF HON. PETE OLSON, A 

REPRESENTATIVE IN CONGRESS FROM THE STATE OF TEXAS 

Mr. OLSON. I thank my colleague from Texas. 

Mr. Chairman, I thank you for holding this hearing on H.R. 

1633, the Farm Dust Regulation and Prevention Act, of which I am 

a proud cosponsor. 

This hearing is critically important to my home State of Texas. 

Texas has been battling and unprecedented drought. In my hometown of Sugar Land, we are almost 2 feet behind our annual rainfall. In addition, wildfires have burned 3.6 million Texas acres. 

Texas farmers and ranchers have been hit particularly hard by the 

drought and the fires. And to think that the EPA is attempting to 

regulate farm dust now or in the future is simply out of touch with 

reality. This move would impose devastating, unjustified and burdensome regulations on farmers and ranchers already struggling in 

this economy to provide food for an ever-growing population. 

Mr. Chairman, as you know, farmers and ranchers are the backbone of America. We must give them the tools and certainty to plan 

for the future so they can succeed. 

I welcome all of our witnesses here today, particularly my colleagues from South Dakota and Virginia. I look forward to your 

testimony. I yield back. 

Mr. WHITFIELD. Thank you very much. 

At this time I recognize the ranking member of the full committee, Mr. Waxman of California, for 5 minutes. 

OPENING STATEMENT OF HON. HENRY A. WAXMAN, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF CALIFORNIA 

Mr. WAXMAN. Thank you very much, Mr. Chairman. 

Today’s hearing considers yet another bill to allow more air pollution, more asthma and more heart attacks, and once again, it is 

14 

a bait and switch. The bill’s sponsors say the legislation is narrowly targeted to help farmers. In fact, the bill is drafted broadly 

and has sweeping anti-environment effects. 

We are going to hear today that we must pass H.R. 1633 to stop 

EPA from regulating farming. This isn’t just nonsense. It is pure 

fantasy. EPA does not regulate farming practices to reduce dust 

and has expressed no intention of doing so in the future. EPA has 

set standards for the levels of coarse particulate matter in the ambient air because there is scientific evidence that this pollution 

causes serious health effects. Coarse particulate matter, or PM10, is produced by uncontrolled burning of coal and oil, construction 

and demolition activities, mining, and unpaved roads, as well as 

farm activities. Once EPA sets the standards for ambient levels of 

air pollution, it is up to the States and localities to determine how 

to meet them. It is the States and localities, not EPA, that decide 

which sources must reduce pollution and by how much. 

EPA set the current PM10 standards in 1987, during the Reagan 

administration. As required by the Clean Air Act, EPA has recently 

reviewed the science supporting those standards. Based on that review, the Administrator recently announced that she intends to 

propose making no change to the Reagan-era PM10 standards. Now 

we are being told that we need to pass this bill because EPA could 

change its mind and do something the agency has said it has no 

intention of doing. 

If we adopt this standard for legislation, there is no end to the 

bad ideas we could legislate. Should we pass a law saying the 

United States cannot invade Canada? Or one preventing the government from outlawing apple pie? 

We are facing real and serious problems that are happening right 

now. Millions of Americans are out of work; our economy is stalling; fires, floods and droughts are afflicting our Nation. We need 

to spend our time addressing these real challenges, not squandering it on imaginary problems. 

But even though this bill stops something that won’t happen anyway, that doesn’t mean the bill has no effect. H.R. 1633 is so broadly worded, it could invalidate EPA’s existing standards for both fine 

and coarse particulates. This would have a devastating effect on 

clean air requirements and public health. 

The biggest problem is in section 3, which is not limited to farm 

activities, rural areas, ambient air quality standards or coarse particulate matter. It says the Clean Air Act does not apply to anything that meets the bill’s definition of ‘‘nuisance dust,’’ unless a 

narrow exception applies, and the definition of nuisance dust is 

sweeping. It includes ‘‘windblown dust,’’ which is undefined and not 

limited to rural areas, and it includes any particulate matter ‘‘generated from activities typically conducted in rural areas.’’ 

Well, mining is typically conducted in rural areas, and mining 

operations have huge equipment that can generate large quantities 

of particulate air pollution. Seventy percent of the Nation’s power 

plants are located in rural areas. The particulate matter generated 

by power plants includes not only fine and coarse particulate matter, but also particles of mercury and lead and acid particles that 

form from nitrogen oxides and sulfur dioxides. Children in rural 

areas typically take the bus to school, and diesel buses generate 

15 

particulate pollution. Under this bill, EPA could have no authority 

to regulate any of this pollution. 

Now, the bill’s sponsors will argue that they don’t intend to exempt mines, power plants or school buses from regulation under 

the Clean Air Act. But as we have seen with so many other bills 

this Congress, the bill language doesn’t match the stated intent. It 

is the legislative language that matters, and the language could result in a massive increase in dangerous air pollution. 

This year, the subcommittee has reported bills to allow more carbon pollution, more air pollution from offshore drilling, more air 

pollution from power plants, more air pollution from industrial boilers and incinerators, and more air pollution from cement kilns. Today’s bill is more of the same. Americans want their kids to 

breathe clean and healthy air, not another bill to let polluters off 

the hook. 

Thank you, Mr. Chairman. I yield back my time. 

Mr. WHITFIELD. Thank you, and at this time I would like to recognize our members on the first panel, Congresswoman Kristi 

Noem from South Dakota and Congressman Robert Hurt of Virginia, primary sponsors of this legislation, and we genuinely appreciate your being here with us today, and I will recognize each of 

you for 5 minutes for your opening statement, and Congresswoman 

Noem, we will begin with you. 

STATEMENTS OF HON. KRISTI L. NOEM, A REPRESENTATIVE 

IN CONGRESS FROM THE STATE OF SOUTH DAKOTA; AND 

HON. ROBERT HURT, A REPRESENTATIVE IN CONGRESS 

FROM THE COMMONWEALTH OF VIRGINIA 

STATEMENT OF HON. KRISTI L. NOEM 

Mrs. NOEM. Sounds great. Thank you, Mr. Chairman and the 

ranking member, who is not with us right now, but the rest of the 

committee members, I appreciate you for having this hearing today 

and for letting us bring forward H.R. 1633, the Farm Dust Regulation Prevention Act of 2011. 

I introduced this commonsense bill on April 15th of this year 

with my colleagues, Representative Robert Hurt, Larry Kissell and 

Leonard Boswell, because of the regulatory uncertainty that is facing rural America. 

We certainly have challenges in front of us. My bill is a bipartisan approach to ending the EPA’s regulation of farm dust in rural 

America while still maintaining the protections of the Clean Air 

Act to the public health and welfare. It is not a Republican and it 

is not a Democrat issue. There is broad bipartisan support with 

over 100 colleagues on both sides of the aisle sponsoring this bill. 

And the committee will see in the record that there is also over 100 

agriculture- and research-based organizations who have written in 

support of the bill as well. 

As this committee knows, there is growing concern that excess 

regulations are hampering economic growth and job creation across 

the country. In my home state of South Dakota, this is a huge concern for farmers and for ranchers and small business owners who 

are struggling to stay afloat in an already stressed economy. One 

of the most overwhelming concerns that I hear about from farmers 

16 

every day and ranchers back home is the overbearing regulations 

coming out of the EPA, including the regulation of farm dust. Their 

concern is certainly not unwarranted. 

Under the Clean Air Act, the EPA is responsible for setting the 

National Ambient Air Quality Standards for certain pollutants. 

This includes particulate matter, which is broken down into both 

fine and coarse particulate matter, commonly known as dust. The 

Administrator of the EPA, Lisa Jackson, must set the National 

Ambient Air Quality Standards that States must meet or be designated as nonattainment areas. The goal of these standards is to 

protect the public from harmful pollutants like industrial soot and 

car emissions common in urban areas, which I certainly support. 

The EPA measures the amount of particulate matter, or dust, in 

the air through monitoring devices that are placed throughout the 

country. At least every 5 years, the Administrator must review 

those standards and decide if they want to keep the current standard, or potentially adopt a more stringent standard. As this committee is aware, the EPA is currently in the process and in the 

midst of another review. 

Under current law, the EPA’s standards include all kinds of dust, 

including dust generated from ag activities and the dust that is 

typical in rural America. This type of dust is naturally occurring 

and includes soil, windblown dust or dust that comes off of dirt 

roads. I call it farm dust. This is completely different than the type 

of dust typical in urban areas which has been shown to have adverse health effects. 

My legislation specifically focuses on rural dust. It allows the 

standard to apply unchanged in urban areas. Farm dust is a fact 

of life in rural America and, unlike urban dust, has not been shown 

to have a significant health concern. Including farm dust in the National Ambient Air Quality Standards regulations causes great concern and uncertainty for farmers and other resource-based industries in rural America. 

I would like to clear up the myth that EPA currently does not 

regulate farm dust. Farmers and ranchers are already subject to 

the standard for dust in nonattainment areas like Arizona. There 

are people in Arizona that certainly know the impact that this has 

on businesses. It can cost some producers in that State over $1,000 

a day to comply with dust standards. 

On September 17, 2011, a Des Moines Register story tells the 

story of Kevin Rogers, who is going to testify here later today and 

tell his personal story. He is a farmer from outside of Phoenix, Arizona. If the wind is blowing too much, he has to park his tractors, 

he has to park his combines so that he doesn’t kick up too much 

dust. As a lifelong farmer and rancher myself, I certainly understand the impact this can have when you have a job to get done 

and you have a business to run. And as Kevin puts it, ‘‘It is a difficult thing when the government is in the middle of every single 

thing that we are doing.’’ We need to put an end to regulation of 

farm dust and prevent its expansion into the future. 

Regulation of farm dust is a problem today and will be more of 

an issue if the EPA continues to have opportunities to make more 

stringent standards into the future. The inclusion of farm dust in 

the EPA’s National Ambient Air Quality Standards will continue to 

17 

be a problem until legislation is enacted to ensure that farm dust 

is treated differently. EPA is well aware that it cannot under current law differentiate between dust coming from rural areas or 

urban areas, and while officials in the EPA continue to say that 

they have no intention of regulating farm dust, the EPA does regulate farm dust and has no plan to exempt naturally occurring farm 

dust from their regulations. 

This bill certainly provides a solution. It gives us the ability to 

differentiate between naturally occurring rural dust and that that 

is typically occurring in urban areas, and also, what it does is, it 

provides immediate relief for farmers in rural areas by preventing 

any changes to the current standards for 1 year. Secondly, it provides flexibility for States, localities and tribes to regulate farm 

dust and nuisance dust themselves. 

I certainly appreciate the opportunity to testify before you today, 

and I will certainly stick around and answer any questions that the 

committee may have for me. 

[The prepared statement of Mrs. Noem follows:] 

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Mr. WHITFIELD. Thank you very much. 

Mr. Hurt, you are recognized for 5 minutes. 

STATEMENT OF HON. ROBERT HURT 

Mr. HURT. Thank you, Mr. Chairman. It is an honor to be with 

you, and I thank you for the invitation to be here to talk about 

H.R. 1633. It is an honor to be here with Representative Noem, and 

I appreciate her leadership on this as well. 

I represent Virginia’s 5th District, a primarily rural area which 

includes most of central and Southside Virginia, and is larger than 

the State of New Jersey. In the 5th District, we have a proud heritage in agriculture, manufacturing and other resource-based industries that provide good-paying jobs for thousands of Virginians. 

Dust is a necessary byproduct of the hard work the farmers and 

businesses in my rural district perform every day. These are the 

people who are struggling to survive, to grow, and to create jobs 

during this stalled economic recovery. That is why the EPA’s national standard for fugitive dust, which falls under the Clean Air 

Act’s National Ambient Air Quality Standards for coarse particulate matter is so troubling to the people that I represent. It is yet 

another example of the expansion of Federal Government and the 

uncertainty that Washington continues to impose upon our family 

farms, our small businesses and our rural communities. 

That is why H.R. 1633 is necessary. The bipartisan legislation 

will help create a better economic environment for job creation by 

replacing the current Federal standard for dust that comes from 

driving on unpaved roads, working in agricultural fields and similar activities in rural America. 

H.R. 1633 provides relief from the more stringent Federal standard for coarse particulate matter recommended in the April 2011 

policy assessment prepared by the EPA staff. It also gives States 

and localities the flexibility to set a standard for dust if they 

choose. More important, it keeps the Federal Government out of 

the business of over-regulating naturally occurring dust unless the 

EPA can prove substantial adverse public health effects caused by 

dust and can provide a rigorous cost-benefit analysis on the need 

for such regulation. 

While I applaud EPA Administrator Lisa Jackson’s recent promise that she will not propose a more stringent standard for coarse 

particulate matter, I remain concerned about the uncertainty of the 

rulemaking process where these rules can be modified. I am also 

troubled by the comments of some officials in the administration to 

discredit the issue of Federal dust regulation, including Secretary 

of Agriculture Tom Vilsack who wrote that the ‘‘regulation of farm 

dust is another frequently repeated myth.’’ After reviewing the 

EPA’s 2006 Federal standards for coarse particulate matter, which 

by definition includes dust, I respectfully disagree with the statement that this is a myth. 

I know that farmers and business owners in the 5th District disagree with this assessment of dust regulation as well. When traveling the 5th District last year, I spoke with a small business 

owner who was warned by a State regulator about the amount of 

dust that was coming off of his property. When this business owner 

questioned further about the regulator’s concern over fugitive dust, 

24 

the regulator replied that the business needed to take active measures to decrease the dust coming from the dirt driveway leading in 

and out of his facility. 

It also appears that the Sierra Club would take issue with the 

administration’s statements that Federal dust regulations are a 

myth as well. When discussing a petition it filed with the Virginia 

Air Pollution Control Board in my home State, which was ultimately dismissed, by the way, the Sierra Club alleged that the levels of dust it measured on a road in southwest Virginia were above 

the national health-based standard promulgated by the EPA. It is 

difficult to understand why the Sierra Club would take such action 

if the Federal Government mandates for fugitive dust are a myth. 

While it is true that the EPA and State regulatory agencies have 

not set up monitors at every family farm and every unpaved road, 

the Sierra Club has shown one way in which these national standards for dust regulation continue to provide uncertainty for rural 

America. 

Because of these dust regulations, rural farming and business operations can face the threat of unnecessary harassment, regulation 

and litigation by private actors or State and Federal regulators. 

Additionally, companies throughout the 5th District and the country are required to comply with the Federal standard for dust in 

order to obtain permits, such as those issued by the Virginia Department of Environmental Quality as required in its State Implementation Plan with the EPA. 

This is why Congress must act in a bipartisan fashion to pass 

H.R. 1633 and assure our farmers and our rural industries that 

naturally occurring dust will not be subject to expanded Federal 

regulation. When it comes to dust, the EPA and the Federal Government should not mandate a one-size-fits-all standard that could 

eventually lead to lost production. With unemployment rates nearing 20 percent in some areas of Virginia’s 5th District, we simply 

cannot afford to continue to perpetuate unnecessary regulations 

and uncertainty for the farmers and businesses in our rural communities. 

I thank the chairman and I thank the ranking member again for 

inviting us to appear. I thank the subcommittee for considering our 

bill. I appreciate the opportunity to testify this morning and look 

forward to any questions. 

[The prepared statement of Mr. Hurt follows:] 

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Mr. WHITFIELD. Well, thank both of you for your testimony. We 

appreciate your taking time to talk about your legislation, and I 

was delighted to hear Ms. Noem indicate that you do have bipartisan support. How many cosponsors of this bill do you have? 

Mrs. NOEM. Well, there are 100 cosponsors that are signed on to 

the bill. There also has been a lot of support shown over in the 

Senate side as well. I mean, it is a commonsense bill that we certainly recognize could be addressed—the concerns could be addressed through this legislation. 

Mr. WHITFIELD. And has a similar bill been introduced on the 

Senate side? 

Mrs. NOEM. You know, there has been a bill that has been talked 

about. I am not certain if the sponsor is continuing to pursue it. 

Mr. WHITFIELD. But when we say that EPA is not regulating 

coarse particulate matter, of course, in any nonattainment area, if 

the State does not have a State implementation plan, the Federal 

Government certainly has the authority to step in. Is that correct, 

Mr. Hurt? 

Mr. HURT. Absolutely, and I would like to maybe address some 

of the concerns raised by Mr. Rush and Mr. Waxman, that section 

3, it does allow for the Federal Government to come in but under 

circumstances that I think any American would find very reasonable, and that is, when it is proven that there are substantial 

health risks and after a cost-benefit analysis that this makes sense, 

and I think that from what I have heard across my district, that 

is exactly the kind of view that Americans and 5th District Virginians would like to see going on here in Washington. And it is 

also important to note that this does nothing to change the particulate matter 10 and PM2.5 standards, the emissions that the ranking member and Mr. Waxman discussed, would still be regulated 

under or viewed through those different standards. 

Mr. WHITFIELD. You know, it is interesting we find ourselves 

here discussing the regulation of dust. I know that there are some 

studies that say well, there’s some correlation between particulate 

matter, coarse particulate matter, and health, and then there are 

other studies that indicate there is no causal relationship whatsoever, and yet—and I know we have a gentleman from Arizona, I 

believe, in the next panel, but it is my understanding that under 

the State implementation plan of Arizona, in some instances on 

windy days the farmers are literally prevented from farming. Is 

that your understanding? 

Mrs. NOEM. Mr. Chairman, yes, it is my understanding, and that 

would be the facts that they face every single day, and I think 

there is a clear definition and difference between urban dust, which 

is the kind of dust that has been proven scientifically to create the 

adverse health effects that a lot of the questioning has come from. 

There hasn’t been that kind of scientific research and data that has 

shown the detrimental effects of this nuisance dust, which we are 

addressing in this piece of legislation. We are talking about dirt, 

soil, matter that occurs naturally through the course. Some of the 

concerns that were brought up in previous statements did happen 

to come from coal-fired plants, from mining, other situations such 

as that, scientific research has proven that that is very different 

31 

than the type of rural dust that we are talking about with this 

piece of legislation. 

Mr. HURT. If I could just comment on that, I think also one of 

the things that I have discovered in working on this legislation is 

that at some—we have standards, but at some level at the end of 

the day, if you can’t abate the dust, the only way to stop it is to 

stop production or stop driving on the roads, and what does that 

translate to? That translates to lost jobs. 

Mr. WHITFIELD. Well, one thing that I think also is beneficial in 

your legislation, my understanding under the Clean Air Act, there 

really is no definition of nuisance air so it could be whatever it 

could be. At least in this legislation make an attempt to define it, 

which may not suit everyone but that would be an area that we 

would have an opportunity to work with others to at least have a 

definition of that, which I think it is important. 

Mrs. NOEM. Yes, Mr. Chairman, I would agree. I think this piece 

of legislation the EPA should have no problem with. I really do. I 

think they should be very supportive of this because it simply says 

that they are not going to change their standards for a year, which 

they have already said that they are not going to do, and then it 

provides that definition. Rural dust and urban dust are not the 

same thing, and I think it would be very helpful to them and their 

processes and how they evaluate the ways that they approach enforcing the Clean Air Act to have that definition in place because 

they are very different, and the research behind them shows that. 

Mr. WHITFIELD. Well, some people make the argument well, EPA 

is not going to regulate it anyway so we don’t need this legislation, 

but we know for a fact that entities file a lot of lawsuits over at 

EPA, and whether EPA intends to do something or not, they frequently find themselves in lawsuits and frequently they enter into 

consent decrees in many instances agreeing with the plaintiff and 

then it becomes a court order and that is another frustrating thing. 

We find the court in many of our environmental regulations, their 

decisions as we do regulations coming out and initiated by EPA. 

Mrs. NOEM. Yes, Mr. Chairman, this bill provides certainty and 

it provides certainty to a risky business that a lot of farmers and 

ranchers engage in and the people in rural areas are trying to keep 

their doors open and provide for their families, and this shows 

them that we are going to give them the certainty they need to be 

protected from those types of sudden regulations that may come up 

because of lawsuits and environmental issues. 

Mr. WHITFIELD. Well, thank you all very much. 

At this time I recognize Mr. Rush for 5 minutes. 

Mr. RUSH. I want to thank you, Mr. Chairman, and I want to 

also thank my colleagues, Representative Noem and Representative 

Hurt, for being here today, and I want you to know that my grandfather was a farmer. I was raised in my early years on a farm, and 

I am pro-farmer, and I see you are the sponsor of this bill, and I 

want to focus my questions on the bill. 

Representative Noem, many on the minority side are concerned 

with some of the language that is not clearly defined in section 3. 

Specifically, the ‘‘nuisance dust’’ as defined by ‘‘other activities typically conducted in rural areas’’ is causing concern for me and others because it may exempt many other industrial activities from 

32 

Clean Air Act regulations. You are the sponsor of H.R. 1633, and 

is it your intention to provide exemptions for other activities not 

associated with standard agricultural practices in section 3, and if 

not, would you be amenable to modifying this language in order to 

make clear the bill’s intention? 

Mrs. NOEM. Well, thank you for the question, Representative 

Rush, and I certainly believe that the title of the bill and the language of the bill is very clear that it means to address farm dust 

and nuisance dust throughout the piece of legislation. I think that 

some of the interpretation that it goes too far and might include 

things such as coal ash and other harmful pollutants is that my bill 

simply does not exempt anything from regulations. It simply gives 

States and localities the flexibility to regulate dust in rural areas 

on their own. Now, if there are no local regulations that address 

in this place Federal regulations will certainly apply if the EPA— 

if the dust proves that it has negative health benefits and if it does 

rigorous cost-benefit analysis. So I believe the legislation as it 

stands today with the title that it has and with the language it has 

within it clearly defines nuisance dust and what is to be regulated 

and that the States and local governments certainly have the opportunity to address the concerns that may be particular in one 

area. 

Mr. RUSH. Well, you feel quite strongly that your bill is necessary 

in light of the fact that EPA has already come out and publicly 

stated that it would not propose any changes to the current standard of 10 PM or 10 micrometers for coarse particulate matter. Can 

you explain why you feel so strongly? 

Mrs. NOEM. I feel so strongly because I think the fact that if 

there is a piece of legislation out there that guarantees that EPA 

will not take any action for the next year, that that is a benefit to 

our small farmers and producers across this country. It is not that 

they wouldn’t trust the EPA, but I certainly think that they would 

appreciate knowing that there is a guarantee on no changes for the 

next year. 

The second part of this bill is that it actually does define the difference between rural dust, nuisance dust and urban dust simply 

because of some of the testimony that I gave earlier, that there is 

a big difference between the nuisance dust and that it has proven 

to not have the negative side effects and health benefits, or detrimental effects that some of the urban dust does that you referenced 

when you gave your opening statement. There is a big difference 

between those two different types of dust that occur in this country, and that definition and clarity between the two will certainly 

help the industry as well. 

Mr. RUSH. Is there any, besides industrial dust and particulate 

matter, is there any other dust classification that are exempted or 

included in your legislation? 

Mrs. NOEM. Well, I don’t believe so. As far as what this simply 

does is to put that definition into place in statute that there is a 

nuisance dust definition and what is included in that is the naturally occurring dust particles that would happen and the difference 

between urban dust, and this gives clarity to the EPA. This makes 

their job easier. They can look at each of these two different types 

of dust and know specifically how to define them and what the adVerDate Aug 31 2005 09:14 Oct 17, 2012 Jkt 037690 PO 00000 Frm 00038 Fmt 6633 Sfmt 6633 F:\112-09~1\112-99~1 WAYNE
33 

verse health effects are on those, and then it also allows them the 

opportunity to come into area if the State and local governments 

do not. 

Mr. RUSH. Thank you, Mr. Chairman. I yield back. 

Mr. WHITFIELD. Thank you, Mr. Rush. 

It is the custom of this committee that the chairman and ranking 

member will ask other Members questions, so we have completed 

that, and I want to thank you all once again for introducing the 

legislation and for—— 

Mr. WAXMAN. Mr. Chairman, you are not going to allow other 

members to ask questions of this panel? 

Mr. WHITFIELD. Would you like to ask some questions? 

Mr. WAXMAN. I would like to ask some questions. 

Mr. WHITFIELD. Without objection, then I recognize the gentleman for 5 minutes. 

Mr. WAXMAN. I just want to take issue with some of the things 

that have been said because I think you oversimplified it to the 

point where I think your conclusions are incorrect. First of all, the 

title of the bill has no legislative effect. What has legislative effect 

is the wording of the bill. And you made a couple statements, Representative Noem, that I take issue with. You said there is no proven difference between—there is a proven difference between urban 

and rural dust. 

Mrs. NOEM. I said—thank you, Representative Waxman. I appreciate that. What my statement was or should have been was that 

the scientific research is very different showing the detrimental effects of urban dust versus rural dust, that there is much different 

research data that is available on the detrimental health effects of 

urban dust as where—— 

Mr. WAXMAN. The Clean Air Act doesn’t regulate dust. The Clean 

Air Act regulates harmful pollutants, and in this case, we are talking about two kinds of pollutants. We are talking about fine particulates and coarse particulates. The standard was originally set 

when President Reagan was President, and it has been reviewed 

but the basic standard has been in place. 

Now, you said that there is no proven adverse health effect from 

rural dust. If that rural dust is produced by farm machinery, that 

could have harmful impact, couldn’t it? 

Mrs. NOEM. It could, but we could speculate all day. What I prefer to operate with is the facts that we have in front of us. 

Mr. WAXMAN. Well, the facts we have in front of us is your bill 

defines this nuisance dust which is a new term in law that you 

would propose to put in law, and it says particulate matter generated from natural sources, OK, unpaved roads, agricultural activities, earth moving or activities typically conducted in rural 

areas, and I mentioned in my opening statement that a lot of 

things are conducted in rural areas, which could add to the particulate matter which particularly in the area of fine particulates, 

there is a genuine threat to human health. 

The point that I am raising is that your intentions seem to be, 

both of you, pretty reasonable. You don’t want the dust in rural 

areas regulated, as Congressman Hurt said. If you are going to try 

to stop the dust coming from farms, you would have close down the 

farms and lose the jobs. That doesn’t make any sense at all. But 

34 

the problem is, nobody is proposing to do the things that you fear 

might happen. If you had a 1-year period of time in which there 

could be no regulation on coarse particulates coming from dust in 

the rural areas, well, that could give somebody certainty for a year. 

Nobody is planning to do it anyway. But I fear that your bill is 

drafted in a way that goes much further, and it doesn’t sound like 

that that is your intention. 

Representative Noem, I mentioned in my opening statement that 

it is a nonexistent problem and we have so many real ones that 

should be addressed. There was an editorial my staff brought to my 

attention from a newspaper. It is the largest newspaper in South 

Dakota, and it said, ‘‘There are important issues at the Federal 

level right now that will have direct impact on our States so it is 

disappointing to see Representative Kristi Noem continue her fight 

against a made-up problem like the potential for farm dust regulations by the Environmental Protection Agency. Dust has become a 

lightning rod for some Republicans, drumming up fear in farming 

communities that more Federal Government intrusion and overregulations coming to take money out of their pockets. Noem proposed legislation that would ban the EPA from regulating farm 

dust for a year, and similar legislation was advanced by Senator 

Mike Johanns. The problem is that the EPA has repeatedly and at 

every turn said it has no intention of regulating farm dust. On 

Monday it went as far as to write a letter to Congress stating it 

would not be regulating dust kicked up by combines. That should 

put the issue to rest.’’ 

With those multitude of assurances that this is a phantom issue, 

what is your response to this editorial? 

Mrs. NOEM. Well, Representative Waxman, that editor of that 

newspaper certainly doesn’t represent my farmers and ranchers 

across South Dakota, and it is clear that he doesn’t understand the 

bill, because in that editorial he didn’t address the fact that it is 

going to provide a clear definition between nuisance dust, rural 

dust and urban dust. He simply—— 

Mr. WAXMAN. Let me take exception to—— 

Mrs. NOEM. One of the—— 

Mr. WAXMAN. Excuse me. Let me take exception. You state that 

as a fact but there is nothing in the law that says this dust is from 

rural areas, this dust from urban areas, it is different. The difference is only the amount of particulate matter in the region and 

particularly if it’s nonattainment, which is not attaining what is 

the health standard. 

When I was a young member of the State assembly in California, 

I heard that there might be a freeway coming through—I ask for 

30 seconds more—and I went out of my way to make sure that we 

fought that freeway and it was stopped. It turned out they never 

intended it but the people in my district thought I stopped it anyway. That is a good thing to do politically, but when you change 

something like the Clean Air Act, a lot of unintended consequences, 

I fear for that. If there is a chance to go through this legislation, 

maybe we can change it in some way, but I fear that your bill goes 

too far. 

Thank you, Mr. Chairman. 

Mr. WHITFIELD. Mr. Waxman, your question—oh, yes, Ms. Noem. 

35 

Mrs. NOEM. Well, I just wanted to make a statement that certainly the people in South Dakota recognize, widespread they recognize the need for this piece of legislation or else I wouldn’t be 

bringing it, but they have been talking to me about it every single 

meeting that I have that people deal with rural industries in South 

Dakota. And I think when you hear the personal story of Kevin 

Rogers a little bit later you will really—— 

Mr. WAXMAN. But that is another State where there is a nonattainment. 

Mrs. NOEM. But certainly right now—— 

Mr. WAXMAN. When people are fearful, you ease the fears. 

Mr. WHITFIELD. OK. 

Mr. WAXMAN. Whether it is realistic or not. 

Mr. WHITFIELD. We all get excited about dust, but let us calm 

down here a minute. 

Mr. WAXMAN. Settle the dust. 

Mr. WHITFIELD. Yes, let us settle the dust here. 

But Mr. Waxman raised some dust, and now I would recognize 

Mr. Shimkus for 5 minutes of questions. 

Mr. SHIMKUS. Thank you, Mr. Chairman. 

A couple things. Kristi, how far is your home from a paved road? 

Mrs. NOEM. Well, my home particularly is not too far. It is about 

a quarter of a mile from a paved road. But our farm is about 8 

miles from a paved road. 

Mr. SHIMKUS. And is that chaff, as I would call it, or is it dust? 

Is it a dirt road or is it limestone rock road? 

Mrs. NOEM. Oh, it is a dirt road. It is a gravel road. 

Mr. SHIMKUS. So it is gravel, and if there is an air monitor 

placed on that gravel road, which is 8 miles from a paved road, the 

gravel road probably would not be in attainment on the PM10

standard when the big four-wheel-drive hemi pickup truck with the 

horse-drawn trailer goes down that road. Isn’t that correct? 

Mrs. NOEM. I would agree. I would say virtually every single 

field during harvest time would be in nonattainment. 

Mr. SHIMKUS. And I have a photo that I showed Administrator 

Jackson when she first testified, and I will probably pull it up later 

on, and it is this time of the year when we are finishing cutting 

of beans, and it shows a plume. Now, some people would say—oh, 

there it is, right there. That is right outside my hometown just 

north of Collinsville. Now, if you had an air monitor right behind 

that, it would probably set off. But that is not diesel, that is just 

chaff. That is organic. That is leaves, that is stalk, and that is what 

we call cutting of beans. 

Mr. WHITFIELD. Is that natural dust? 

Mrs. NOEM. Yes. 

Mr. SHIMKUS. So my point is, in rural America where the air 

monitor is could determine it, and the difference between urban 

America and rural America is that dust cloud will disperse way before it is in any concentration that would kick off. So a concern, 

and so the additional regulation imposed is a severe threat to rural 

America. You have how many agriculture groups in support of this 

bill? 

Mrs. NOEM. Over 100. 

36 

Mr. SHIMKUS. Are they just crazy? I mean, are they just meddling? They have nothing else to do than be worried about the 

EPA? 

Mrs. NOEM. Well, Representative Shimkus, if I could say one 

thing that Representative Waxman continued to say over and over 

is that dust is not currently regulated, and it is. The EPA does regulate dust, and the staff did recommend tightening those standards. So when he believes there is no concern, there is valid concern in rural America. 

Mr. SHIMKUS. Robert, do you want to add anything? 

Mr. HURT. Well, I would say a couple of things. You know, when 

we were asked whether or not we need this bill, to me, the question 

ought to be, why don’t we use our legislative prerogative to guide 

policy in this country. I think if you talk to the people I represent, 

they say for far too long the Congress has wholesale given its legislative prerogative over to agencies like the EPA who are not elected, who are not accountable to the people. So why on earth would 

not we take our responsibility as being a voice for the people seriously and what objection could one have to exercising that legislative authority that has been given to us by the people we represent? 

Going back again to some of the questions that have been asked 

about the actual standard, there is nothing unreasonable about section 3 and the standard that is proposed. It just says there must 

be shown substantial health risk and that there is a cost-benefit 

analysis that goes through and proves that the benefits outweigh 

the costs. So I don’t think anybody is suggesting that you have— 

and I in my district, my rural district, we have power plants. No 

one is suggesting that emissions from power plants be exempted in 

any way, and this bill would not do that. 

And then finally, as it relates to the fear mongering, and I take 

issue and I wish Mr. Waxman was here, I take issue with his suggestion that this is somehow politically motivated. I talk to farmers 

in my district all the time whose fears of government regulation 

are real and they translate to lower productivity and fewer jobs, 

and all they are trying to do—you know, I have a farmer in Nelson 

County, he is a fruit grower. He says, you know, I get regulated 

by the Department of Labor, Department of Transportation, the 

IRS, the USDA, the EPA. He said all I am trying to do is grow 

peaches, I have been doing that for five generations, how hard can 

it be. 

Mr. SHIMKUS. Let me reclaim my time and just recognize Cory 

for a unanimous consent request. 

Mr. GARDNER. Thank you. And I just would like to ask permission for the record to submit letters of support from well over 100 

different organizations that support H.R. 1633: NFIB, chambers of 

commerce, ag groups, farm organizations, business groups. Yield 

back my time. 

Mr. WHITFIELD. Without objection. Thank you very much. 

[The information follows:] 

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Mr. WHITFIELD. Once again, thank you all for taking time to be 

with us. We appreciate it and look forward to working with you on 

this issue. Thank you. 

At this time I will call up the Honorable Gina McCarthy, the Assistant Administrator for Air and Radiation, U.S. Environmental 

Protection Agency. Ms. McCarthy, we welcome you back to Capitol 

Hill, which I am sure you enjoy coming up here a great deal. 

Ms. MCCARTHY. It is always my pleasure, Mr. Chairman. 

Mr. STEARNS. Sorry we don’t have some refreshments for you 

this morning. 

We do appreciate your being here very much to testify on H.R. 

1633, and at this point I would recognize you for 5 minutes for your 

opening statement. 

STATEMENT OF REGINA MCCARTHY, ASSISTANT ADMINISTRATOR FOR AIR AND RADIATION, ENVIRONMENTAL PROTECTION AGENCY 

Ms. MCCARTHY. Thank you, Chairman Whitfield, Ranking Member Rush, members of the subcommittee. I appreciate the opportunity to testify on the Farm Dust Regulation Prevention Act of 

2011. This sweeping bill could roll back Clean Air Act protections 

and adversely affect public health in urban, suburban and rural 

areas. 

This bill has been sold as a narrow one. If all this bill is intended 

to do is prevent the EPA from tightening the coarse particle standard, the bill is simply unnecessary. Administrator Jackson committed in an October 14, 2011, letter that she is prepared to propose to keep the PM10 standard, or coarse particle. The National 

Ambient Air Quality Standard will remain unchanged if the Administrator’s proposal as intended is moved forward. I am hopeful 

that this announcement ends the myth that the agency plans to 

tighten the regulation of farm dust. 

Whether intended or not, we are concerned that this bill does far 

more than its sponsors have indicated. It could prevent EPA from 

regulating power plants or other major industrial sources of pollution in urban and suburban areas as well as in rural areas. This 

is because section 3A takes away Clean Air Act authority to regulate nuisance dust and then defines nuisance dust very broadly, 

and it includes particulate matter generated from activities typically conducted in rural areas. This exemption would cover both 

coarse and fine particles emitted from anywhere in the country. It 

might include pollutants like NOx and SOx that form fine particles. This would appear to preclude EPA from regulating particle 

pollution from activities such as power plants, mining operations, 

industrial operations and construction anywhere in the country because those activities are not atypical to occur in rural areas. It 

could even call into question EPA’s ability to enforce tailpipe emission standards that would limit particle pollution from cars, trucks 

and buses because those same cars, trucks and buses typically 

drive in rural areas. In other words, the farm dust bill might forever bar the EPA from limiting emissions of coarse particles, fine 

particles, sulfur dioxide, nitrogen oxide and mercury from power 

plants, industrial sources and maybe even motor vehicles. 

47 

We are also concerned that H.R. 1633 could block revision of fine 

particle standards and implementation of existing fine and coarse 

particle standards. Since the existing particle programs did not distinguish between nuisance dust and other particles, the bill raises 

the issue of whether the EPA could enforce or maintain existing 

fine or coarse particle pollution standards. The term ‘‘nuisance 

dust’’ is not a scientific term, which would make it very difficulty 

to incorporate an exclusion of nuisance dust into a scientifically 

based program. This could raise practical concerns. It is unclear 

how one would 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, and it is certainly unclear what the costs 

would be to States or local communities to put in that type of a 

monitoring system could one be designed and developed. 

The existing fine and coarse particle pollution reduction programs are important for public health. While nuisance dust sounds 

like it is merely inconvenient, it includes particle pollution that is 

harmful to public health. When we breathe, both coarse and fine 

particle pollution can reach the deepest region of our lungs and 

move past our bodies’ filtering systems. We have a health-based 

standard for particles smaller than 10 micrometers since 1987. 

That is 24 years. Coarse particles have been linked to a variety of 

adverse health effects including hospital visits related to cardiovascular and respiratory diseases and premature death. This is the 

standard that the Administrator has announced she is prepared to 

propose to retain, not propose to change. 

In 1997, EPA added a health-based standard for fine particles, 

which cause serious health effects. Nationally, EPA estimates that 

exposure to fine particles results in, among other effects, 130,000 

to 320,000 excess deaths in adults, 110,000 emergency room visits 

by children, 2.5 million cases of exacerbation of asthma, and 18 

million lost workdays each year. 

I have briefly discussed some of the potential consequences of 

H.R. 1633. As written, this bill would significantly weaken EPA’s 

authority under the Clean Air Act and significantly cause and preclude us from preventing public health protections that are necessary for the American people. If these consequences aren’t intended, it would be best to revise the bill to avoid the confusion, 

litigation and the concerns that I have raised. I hope this information that I presented as well as the Administrator’s October 14, 

2011, letter clarifies EPA’s intentions and obviates the need for this 

legislation. It is simply not necessary at this time to block the 

tightening of the PM10 standard which the Administrator has very 

clearly indicated that she has no intention at this time of proposing. 

Thank you very much. 

[The prepared statement of Ms. McCarthy follows:] 

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Mr. WHITFIELD. Ms. McCarthy, thank you for your testimony. 

You heard me say earlier that one of our concerns is that it 

doesn’t make any difference what EPA decides or doesn’t decide. 

Outside groups file lawsuits on a regular basis against EPA, and 

I think even you would admit and agree that frequently the courts’ 

decisions determine what the interpretation of the EPA act is and 

what becomes law. So what our concern is, even though Lisa Jackson says no, are you convinced that a third-party environmental 

group or some other entity would not file a lawsuit? 

Ms. MCCARTHY. Mr. Chairman, as you know, 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. I 

would, however, say that the Administrator is basing her decision 

on a wealth of scientific information. I have the Integrated Science 

Assessment right here. She has taken the advice of the Clean Air 

Act Science Advisory Committee. She has listened to the staff recommendations and she believes that the law gives her deference in 

making these determinations in terms of what the science said and 

what—— 

Mr. WHITFIELD. But you do still understand our concern about— 

how many lawsuits are pending against the EPA right now? 

Ms. MCCARTHY. There are a number of lawsuits pending but in 

the—— 

Mr. WHITFIELD. There is over 400, I believe, aren’t there? 

Ms. MCCARTHY. In the case of PM10, the administration has 

acted a number of times, first under President Reagan, second 

under President Bush and this administration. We believe the 

science is clear and we believe that the Administrator’s recommendation will hold true. 

Mr. WHITFIELD. Well, see, we agree with you. We think the 

science is clear also and that is why we think that moving forward 

with legislation would remove any ambiguity whatsoever. So that 

is where we stand on that issue. 

Now, as far as coarse particulate matter, does EPA have the authority to regulate coarse particulate matter now? 

Ms. MCCARTHY. Yes, it does, Mr. Chairman. 

Mr. WHITFIELD. And if the State implementation plan of a noncompliant area does not do so, EPA can step in. Is that correct? 

Ms. MCCARTHY. Well, the EPA would have an obligation to step 

in if a State implementation plan didn’t effectively address attainment in the way the Clean Air Act requires. 

Mr. WHITFIELD. And how many States today are regulating 

coarse particulate matter because they are in nonattainment? 

Ms. MCCARTHY. There are only a very few number of States that 

are regulating PM10. It amounts to about 41 counties. It is a very 

small area of the country at this point in time. 

Mr. WHITFIELD. Do you believe yourself from the evidence that 

you have read that coarse particulate matter does have an impact 

on a person’s health? 

Ms. MCCARTHY. I do. I do believe that, and I think the scientific 

evidence is quite clear, and we have evidence not only that coarse 

particles that are emitted in urban areas cause problems but there 

is clear scientific evidence that distinguishes what we call—what 

57 

people have called rural dust, that that also causes significant public health concerns. 

Mr. WHITFIELD. Well, if you do believe that even rural coarse 

particulate matter does impact health, why did you all decide not 

to strengthen the coarse particulate matter regulation? 

Ms. MCCARTHY. Well, the Administrator has to establish a standard that is requisite to protect public health with an adequate margin of safety. The Reagan administration NAAQS standards set in 

1987, 24 years ago, that was also revisited by the Bush administration and that is now being reconsidered by this administration, is 

actually a very sound standard. It is a standard that we believe is 

sufficient to protect public health. We believe that there is scientific uncertainty, which the Administrator has been looking at 

and considering that would lead her to retain the standard as it is 

proposed but certainly that information is rigorous enough to indicate that we should retain the current standard. 

Mr. WHITFIELD. Now, the current PM10 standard is 150 

micrograms per cubic meter. Is that correct? Is that the current 

standard? 

Ms. MCCARTHY. Yes. 

Mr. WHITFIELD. And then there is a threshold of 99 percentile. 

What does that actually mean? 

Ms. MCCARTHY. Actually, that means—and that is one of the 

issues that has been most confusing because the Clean Air Act 

Science Advisory Committee actually proposed to change the standard and the form or actually ask the Administrator to consider a 

change in the standard and the form. The 99th percentile just really means that the area could be in nonattainment if they exceeded 

or had events that brought up the level of pollution to a certain 

amount just a few times a year and it would trigger National Ambient Air Quality Standards. If you lower that percentile, it means 

it needs to be more often and more frequent in order to trigger nonattainment. 

Mr. WHITFIELD. OK. So the standard is 150 micrograms per cubic 

meter and the form is 99 percentile, so if you exceed that 1 percent 

of the time, you are OK, but if you exceed 2 percent of the time—— 

Ms. MCCARTHY. That is right. 

Mr. WHITFIELD [continuing]. You violate? 

Ms. MCCARTHY. That is right. 

Mr. WHITFIELD. Well, my time is expired. 

I recognize the gentleman, Mr. Rush, for 5 minutes. 

Mr. RUSH. I want to thank you, Mr. Chairman, and Ms. McCarthy, I want to welcome you again to this subcommittee. 

I got a little bit confused during the questioning from the chairman here. It seemed that we were discussing the Farm Dust Regulation Prevention Act but it seemed to me like he was talking about 

the EPA litigation prevention act, trying to keep EPA from being 

in court, being litigated in court, and I just don’t know, do you 

think that is what our legislative powers to keep the EPA out of 

court? 

Ms. MCCARTHY. Mr. Rush, I think that we actually are authorized to establish National Ambient Air Quality Standards. We certainly do that to the best of our ability based on the science and 

the law. Without question, it is often challenged, but without quesVerDate Aug 31 2005 09:14 Oct 17, 2012 Jkt 037690 PO 00000 Frm 00063 Fmt 6633 Sfmt 6633 F:\112-09~1\112-99~1 WAYNE
58 

tion, we win a considerable amount of time because we do our jobs 

well. 

Mr. RUSH. And I agree with you, you do do your jobs quite well. 

We heard earlier from Representative Noem that the scientific 

research shows a clear distinction between ‘‘urban dust’’ and ‘‘rural 

dust’’, and H.R. 1633 will make it simpler and easier for EPA by 

defining what nuisance dust is. Does the scientific research show 

a clear distinction between urban dust and rural dust? Also, does 

H.R. 1633 make it easier for EPA by defining nuisance dust as it 

is defined in this bill? 

Ms. MCCARTHY. The definition of nuisance dust in this bill is 

very broad, and we are very concerned that it could have significant spillover impact in terms of our ability to regulate pollution 

from sources well beyond rural areas and well beyond agricultural 

sources, and we are concerned about that impact. I would also say 

that there are significant amounts of health studies, and they become more every time we look at the data and every time we visit 

that NAAQS that show that coarse particles, whether they are generated in the rural areas or they are generated in the urban areas 

have significant health consequences. They deserve to be regulated. 

The science demands it. The law requires it. EPA does that. 

Mr. RUSH. Well, so let me just ask you, is the matter that is established in 1987 under the administration of President Reagan, 

has that standard been a threat to the farming communities in this 

Nation or has it been helpful? 

Ms. MCCARTHY. We do not believe that there is any evidence 

that farming has been in any way significantly disrupted by any 

of the National Ambient Air Quality Standards. As you know, 

when we establish a NAAQS, it is a national standard. It is not 

targeted to a specific sector or a specific geographic area. I do know 

since 1987 when this was first proposed, there have been identified 

by States and local air quality districts when they implement in 

nonattainment areas, they implement their requirements to look at 

sources and identify what sources contribute to local health consequences. There have been times when they have worked with the 

USDA, they have worked with local farmers. They have identified 

best management practices, conservation measures that those 

farms can put into place that would reduce the amount of dust that 

they admit and still allow farming to continue unabated, and there 

have been instances where we have worked in a collaborative way 

to help that effort and that outcome, and it has been an enormously successful opportunity for all of us and to make sure that 

farming can continue, that it can continue unabated and we can 

work with them to reduce the amount of dust that is emitted and 

maintain the health standards that are required to protect public 

health. 

Mr. RUSH. I only have a few more seconds. There seems to be— 

the 800-pound gorilla in the room seems to be the fear factor that 

is prevalent or that some have alluded to in previous testimony at 

today’s hearing. Can you comment on what your understanding of 

the fear factor is and how great is it, how significant is it? 

Ms. MCCARTHY. Well, we heard quite a while ago, Mr. Rush, that 

there was concern in the farming community on the basis of the 

recommendations by the Clean Air Act Science Advisory Committee 

59 

that the Administrator consider a change in the standard. What 

was misunderstood was they were asking for both a change in the 

standard as well as the form. It actually would have resulted in 

fewer counties. It would have been a little bit more flexible, not so 

much sensitive to the high levels as much as averaging a little bit 

in a way that would have provided more flexibility. We did six listening sessions with the agriculture community immediately to explain to them what the process was, that it wasn’t the recommendation of the staff, that the Administrator didn’t make a decision yet, and we also talked about all of the work that we have 

done together on farm dust since 1987 and the collaborative nature 

of that process and the impacts that hasn’t happened as a result. 

And we will continue that effort, and now that the Administrator 

has made it clear that she is not intending to propose a change in 

that standard, we are certainly hoping that it puts those fears to 

rest. 

Mr. WHITFIELD. Mr. Shimkus, you are recognized for 5 minutes. 

Mr. SHIMKUS. Thank you, and it is great to be with you, Assistant Administrator McCarthy. 

Ms. MCCARTHY. Good to see you too. 

Mr. SHIMKUS. We have a lot of fun here, and hopefully I will be 

kind and courteous, and again, I appreciate all the help that you 

have given in the past. 

A couple issues. It is true that tier 4 engine regs, which has created additional costs for the agricultural community in diesel engines. Is that correct? 

Ms. MCCARTHY. The tier 4 engine rules have been tightened and 

it does require that they look at particulate matter and other emissions—— 

Mr. SHIMKUS. So when you have diesel engines operating in 

rural America, you cannot say there is no effect on cost and production and operations when you have ratcheted down diesel engine 

emissions on the clean air applications. 

Ms. MCCARTHY. The engines that we regulate are very large engines. 

Mr. SHIMKUS. I mean, large engines are used in agricultural 

America. 

Ms. MCCARTHY. I believe that I was referring to dust issues, 

so—— 

Mr. SHIMKUS. Well, I am just trying to—— 

Ms. MCCARTHY. There are definitely requirements in the farming 

community when you have large farms that are significant individual sources of pollution and they have to achieve the same kind 

of engine standards that—— 

Mr. SHIMKUS. Right. Production agriculture is large operations 

and large engines, so I just want to put that on the record. There 

is an effect. To say there is no effect, that really can’t be stated. 

You mentioned 41 counties that you know are in this, and I have 

one of the maps. There are other counties that continue to regulate 

particulate matter on their own. Is that correct? Virginia has fugitive dust regulations in Virginia? 

Ms. MCCARTHY. I am sorry, Congressman. I am not familiar with 

that, but these are the requirements that are attributable to the 

Clean Air Act. 

60 

Mr. SHIMKUS. Just placing that into the record that there are 

States that are monitoring for dust in States on their own outside 

of the SIP and the requirements of the Clean Air Act. 

The fear factor that my friend mentioned, one of your statements 

in your opening statement said ‘‘at this time.’’ Using that terminology ‘‘at this time’’ creates a fear factor in rural America because 

tomorrow you may. The importance of legislation is to codify that 

to say not at this time, no more PM10. In fact, the letter that the 

Administrator sent to Lisa Jackson says—I mean Lisa Jackson 

sent to Debbie Stabenow, ‘‘I am prepared to propose retention with 

no revision of the current PM standard and form when it is sent 

to OMB for interagency review.’’ Now, the question is, so the Administrator must believe that PM standard as it is currently operated under the EPA, that it protects public health. Is that correct? 

Ms. MCCARTHY. Yes, adequate with an adequate margin of safety. 

Mr. SHIMKUS. And you would agree with that? 

Ms. MCCARTHY. Yes. 

Mr. SHIMKUS. Good. I want to have that on the record because 

that is part of this whole debate of the concern of ratcheting it 

down. You heard during the opening questioning, and just the difference of concentration. A lot of our experience here on the committee is focusing on concentrated amounts that affect human 

health. Do you agree that concentrated particulate matter can be 

harmful to human health? 

Ms. MCCARTHY. I believe that exposure to particulate matter can 

be—— 

Mr. SHIMKUS. In any concentration or in certain concentrations? 

Ms. MCCARTHY. It depends on both. It depends on the concentration as well as the size of the particle. 

Mr. SHIMKUS. But you just said PM10 is safe. 

Ms. MCCARTHY. No, no, I said that the National Ambient Air 

Quality Standard was appropriate as a safeguard for public health 

protection. That does not mean that I think that it is safe for exposures at all levels. Certainly our goal is to achieve the National 

Ambient Air Quality Standard that is required under the Clean Air 

Act. I am making no statement about my independent knowledge 

of health consequences associated with exposures beyond that. 

Mr. SHIMKUS. Thank you, Mr. Chairman. My time is expired. 

Mr. WHITFIELD. Yes, sir. At this time I will recognize the gentleman from California, Mr. Waxman, for 5 minutes. 

Mr. WAXMAN. Thank you, Mr. Chairman. 

Ms. McCarthy, we heard from some people that the Republicans 

want to make commonsense changes to the Clean Air Act but in 

reality, I fear they may be making some radical changes and you 

said in your opening statement the bill does far more than prevent 

a change in the coarse particulate standard. We believe it could result in far-reaching damage to the bedrock public health protections in the Clean Air Act. 

Now, this includes a broad definition of so-called nuisance dust 

that would be exempt from EPA regulation. The bill lists several 

examples of what falls under the category of nuisance dust including ‘‘earth moving.’’ The bill doesn’t limit these farms. Ms. McCarVerDate Aug 31 2005 09:14 Oct 17, 2012 Jkt 037690 PO 00000 Frm 00066 Fmt 6633 Sfmt 6633 F:\112-09~1\112-99~1 WAYNE
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thy, could the operations of a large, open pit mine fall under the 

category of earth moving? 

Ms. MCCARTHY. Yes. 

Mr. WAXMAN. In fact, during the next panel, we are going to hear 

from the Coarse Particulate Matter Coalition, an industry association that supports this bill. One of the coalition’s members is 

Kennecott Copper, which operates one of the world’s largest copper 

mines. That company would like to expand its mine with fewer air 

pollution controls. So that is one way this bill goes beyond farms. 

The bill also includes ‘‘windblown dust’’ in the definition of what 

constitutes nuisance dust. Ms. McCarthy, could all particulate air 

pollution be viewed as windblown dust and does the bill distinguish 

because particulate matter from a farm or from a factory? 

Ms. MCCARTHY. It could, and there is no such distinction in the 

bill that you have asked me to comment on. 

Mr. WAXMAN. So the dust is undefined in the bill and commonly 

applies to small particles, so all particulate air pollution might fall 

under this phrase? 

Ms. MCCARTHY. It might. 

Mr. WAXMAN. The bill further includes as nuisance dust particulate matter that is generated from ‘‘activities typically conducted in 

rural areas.’’ This is extremely broad and could capture a range of 

industrial activity that often occurs in less populated areas. Ms. 

McCarthy, what activities could be covered by this definition? 

Ms. MCCARTHY. The generation of power at a power plant, large 

industrial sources like steel plants, gravel operations, mining operations, driving diesel buses to school, diesel engines. A variety of 

the same kind of sources that you would find in rural areas can 

be found in urban areas as well. 

Mr. WAXMAN. The bill is so broadly written that it could prevent 

EPA from ensuring that school buses don’t spew dangerous air pollution in rural communities across the country. I think that is not 

common sense, I think that is ridiculous. 

Ms. McCarthy, given these broad definitions, how could this bill 

affect EPA’s ability to limit emissions of particle pollution from all 

sources, not just farms, and what are the public health implications? 

Ms. MCCARTHY. This bill, if passed as written, could have serious 

implications on the major tenets of the Clean Air Act. It could preclude us from regulating PM fines as well as coarse. It could preclude us from regulating NOx and SO2 emissions from power 

plants, from mining operations, from large industries, from mobile 

sources. It could have serious unintended consequences. 

Mr. WAXMAN. If the Republicans want to reduce or eliminate existing controls on particulate pollution from industrial activities, 

they probably have the votes to do that, but if so, let us debate that 

on the merits. Let us not pretend that this bill is about stopping 

EPA from imposing new regulations on farms. 

I hear this all the time, and I have heard it all my career. I have 

got a simple bill, totally common sense. It only deals with a problem that is on people’s minds. And then you look at the language 

and you find out that it is much broader and has a lot of consequences that we presume are unintended but they might even be 

intended. So I think we have to look at legislation as it is written, 

62 

not as how people would say it is intended because their intentions 

are not part of the law that EPA enforces. Isn’t that correct, Ms. 

McCarthy? Does EPA enforce intentions of the authors or the language of the bill? 

Ms. MCCARTHY. We have to enforce the language of the bill, Mr. 

Waxman. 

Mr. WAXMAN. Even if Congress intended something else? 

Ms. MCCARTHY. Often times, yes. 

Mr. WAXMAN. I yield back my time. Thank you, Mr. Chairman. 

Mr. WHITFIELD. At this time I will recognize Mr. Terry of Nebraska for 5 minutes. 

Mr. TERRY. Thank you. 

Ms. McCarthy, while listening here and some of the discussion 

about whether or not we should even be having this discussion and 

EPA has already said they won’t enforce the PM10 on agriculture 

was the statement I think Lisa Jackson made when I asked her 

about that and after she answered, ‘‘dust happens’’ as the answer, 

I thought that was rather flippant and insulting to our farmers. 

But the reality is, the fear exists and I do think it is real, not only 

because there was a recommendation to regulate dust on the farm 

and the roads but there has been a history with this EPA. For example, in the State Nebraska, under a proposed rule for CSAPR, 

Nebraska was not even given reasonable notice or opportunity to 

revise its implementation plan to react to requirements of the 2006 

PM2.5 NAAQS, and it wasn’t until August 2011 that Nebraska became aware that a level of emission control necessary to mitigate 

interstate transport. 

So the point is, those of us in Nebraska have already gone 

through a situation where the EPA said basically you weren’t going 

to be covered and then to our surprise we were covered, which resulted in a lawsuit. So there is a history with the EPA of making 

promises and then breaking them. 

Now, in regard to the specific of nuisance dust and PM10, the 

chairperson, Chairman Whitfield, hit on this and it has always 

been my saying that we are only one lawsuit away from you being 

forced to regulate dust particulates from farming activities or the 

roads, and in fact, there is a history with the EPA of their partners, Sierra Club and Natural Resources Defense Council, filing 

lawsuits and then you entering into a settlement agreement. 

So with that fear that I have that that is the ultimate plan here 

is to have one of your partners file suit, therefore it is not Lisa 

Jackson’s or this Administrator’s decision but the court’s decision. 

I used the fictional because that is what happens. You enter into 

a settlement agreement. So my question to you is, to your knowledge, has Lisa Jackson, you or anyone with the EPA had any discussions with Sierra Club, the NRDC or any other environmental 

group about filing lawsuits on nuisance dust from farming activities and dirt roads? 

Ms. MCCARTHY. Absolutely not. 

Mr. TERRY. No discussions? 

Ms. MCCARTHY. Absolutely not. 

Mr. TERRY. No emails? 

Ms. MCCARTHY. Absolutely not. 

Mr. TERRY. OK. 

63 

Ms. MCCARTHY. Mr. Terry, we can talk about the cross-state rule 

another time. I would really like that opportunity. But what I will 

say is that this whole issue arose because people were concerning 

about the Administrator going out and making a change in a 

standard that had never been brought to her. The rule has not 

been proposed. She has indicated what she intends to propose. It 

would go through a public process and then it would be finalized, 

and without doubt, it will be challenged. There is ample opportunity for this body to see whether the Administrator is actually 

going to live up to the letter that she wrote and whether or not the 

science and what the final rule looks like. 

Mr. TERRY. Listening to the discussions that have occurred so 

far, you would agree that basic combining harvest or plant would 

create dust that would then in that instance violate the PM10? 

Ms. MCCARTHY. Actually, that is not how it works. We actually 

rely on monitoring technologies, not modeling from individual 

sources, to establish nonattainment areas, and we don’t have farm 

dust standards. 

Mr. TERRY. But we already have an example in Virginia where 

the monitoring said that at that particular time of the truck driving over the road violated the standard, and so the reality here is 

that we are only one lawsuit away from you being forced to enforce 

the rule on farming activities, and my time is up. 

Mr. WHITFIELD. Thank you. At this time I will recognize the gentleman from Massachusetts, Mr. Markey, for 5 minutes. 

Mr. MARKEY. I thank you, Mr. Chairman, very much. 

In 1999, the public was outraged to learn that Congressman 

Tony Schnell had introduced bill 602P to allow the United States 

Postal Service to impose a 5-cent tax on every single email that 

was sent. Email action alerts were sent out with alarming instructions to read this if you intend to stay online and continue using 

email. Congressional offices were flooded by frustrated constituents. The issue even got raised at campaign debates where candidates predictably came out in opposition to this misguided 

scheme. There was just one problem. None of it was real. There 

was no bill 602P. There wasn’t even a Congressman Schnell in the 

House of Representatives. The whole thing was an Internet hoax, 

and everyone should have just moved on. 

But Republicans forged ahead. They introduced the Internet Access Charge Prohibition Act of 1999, apparently because only by 

passing actual legislation to prohibit the goals of the imaginary legislation authored by a fictitious Congressman could we prevent 

these horrible surcharges from being imposed in the real world, but 

it didn’t just do that, that piece of legislation. Then it went on further to actually include provisions which would have hurt poor and 

rural Americans to get phone service. 

So I am reminded of that legislation as we consider this bill to 

prevent the regulation of farm dust. Just like the email tax hoax, 

there is no plan to regulate farm dust any more than there is to 

regulate fairy dust. There is no attempt to accomplish that goal. 

Let me say that again: EPA has made it very clear that the socalled plan to regulate farm dust is a myth, but that hasn’t stopped 

the Republicans from moving forward with this legislation, and just 

like the email tax bill, this bill goes well beyond its stated intent 

64 

because it also blocks EPA from settings standards for the dirty 

soot that gets spewed out of coal-fired power plants, incinerators, 

refineries and chemical plants. That is the real agenda, not to stop 

something that isn’t going to happen but to then switch in the middle of their legislation to move over to something that really would 

protect the public from public health hazards. This bill should be 

relegated to the dust bin of similar urban legends along with Congressman Schnell’s imaginary email tax bill. 

Ms. McCarthy, can you tell me whether EPA has any new plan 

to specifically regulate farm dust? 

Ms. MCCARTHY. We do not. 

Mr. MARKEY. Isn’t it true that this legislation goes beyond a simple prohibition on farm dust regulations by also preventing EPA 

from regulating any dust that is generated by activities that are 

typically conducted in rural areas and any dust that can be blown 

in the wind? 

Ms. MCCARTHY. That is true, Congressman. 

Mr. MARKEY. Even if that dust is actually coming from coal-fired 

power plants or other industrial sources? 

Ms. MCCARTHY. There is a grave concern that that is part of 

what the bill might do. 

Mr. MARKEY. And finally, since I am sure that many little girls 

all over America care about this deeply, can you commit to me that 

EPA will never try to regulate fairy dust or pixie dust? Because if 

not, we may just want to amend the legislation in order to protect 

us against that threat which could be posed by the EPA or other 

regulatory agencies seeking to move into other fictional areas such 

as the legislation which is being considered here by this committee. 

Ms. MCCARTHY. After we look at the complete scientific review, 

yes. 

Mr. MARKEY. You will make sure that you do not under any circumstances? OK. Thank you. 

So I thank the chair very much and I yield back the balance of 

my time. 

Mr. WHITFIELD. At this time I recognize the gentleman from 

Texas, Dr. Burgess, for 5 minutes. 

Mr. BURGESS. Thank you, Mr. Chairman, and I thank the 

gentlelady for being here with us today and answering our questions. You brought a lot of material with you there at your left 

hand. What is that compendium of documents? 

Ms. MCCARTHY. This is the Integrated Science Assessment for 

Particulate Matter that has recently been prepared that would underpin the decision of the Administrator in terms of moving forward with updating both the PM10 and the PM2.5 standards. 

Mr. BURGESS. And there are health studies included in that? 

Ms. MCCARTHY. This is actually a peer-reviewed summary of 

peer-reviewed scientific literature that would have an impact and 

concern relative to particulate matter. 

Mr. BURGESS. So are there available then health studies that 

have found that rural dust is a health concern? 

Ms. MCCARTHY. There are many, yes. 

Mr. BURGESS. And will you leave those behind with us? 

Ms. MCCARTHY. Absolutely. 

65 

Mr. BURGESS. Has the EPA conducted a quantitative health risk 

assessment of coarse particulate matter? 

Ms. MCCARTHY. The EPA has not used that tool on coarse particulate matter, no. 

Mr. BURGESS. Is the reason for that because you don’t have 

enough scientific evidence? 

Ms. MCCARTHY. The reason for that is because coarse particulate 

matter, we don’t have the kind of monitoring data that we have 

available relative to other pollution so it doesn’t seem like it would 

be an appropriate tool to use, but we certainly have enough studies 

that look at coarse particles so that a linkage has been made in 

terms of the emissions of those particles and health impacts that 

would result. 

Mr. BURGESS. Let me ask you this. There was another subcommittee of Energy and Commerce that asked Administrator to 

share with that subcommittee any studies that show a causal or associative relationship between fine particulate matter and deaths 

at levels below what the EPA calls the lowest measured level. Now, 

apparently that request has yet to be honored so can I ask you 

today that you will endeavor to help us receive those materials that 

Administrator Jackson promised another subcommittee and this 

full committee? 

Ms. MCCARTHY. I will assure you that we will provide all of the 

health studies that are the basis of these decisions. 

Mr. BURGESS. We will get you the details on that, but I think it 

is important, and I appreciate your willingness to help us gather 

the information. 

Let me just ask you a question that is a little bit off topic for 

a moment. Now, it seems like Administrator Jackson and the EPA 

are very concerned about asthma and asthma deaths. Is that a fair 

statement? 

Ms. MCCARTHY. Yes. 

Mr. BURGESS. It seems like almost every hearing we have on almost anything, asthma deaths are brought up as one of the 

metrics. 

Ms. MCCARTHY. Well, air pollution generally the health impacts 

of most concern are usually respiratory or cardiovascular, yes. 

Mr. BURGESS. Well, one of the things that is just really perplexing to me, I am an asthma patient. I am on a long-term medication, and I also use a rescue inhaler. Now, occasionally, like anybody else, I will forget my medication. I travel a lot. And it is reassuring to know that I can go into any pharmacy in the country and 

buy Primatene Mist over the counter. I don’t have to go to the 

emergency room. I don’t have to get a doctor’s prescription for it. 

I can just simply get the medication when needed and self-administer and avert a problem. But Primatene Mist is not going to be 

available after January 1st, is it? 

Ms. MCCARTHY. That is correct. If the FDA ban continues, yes, 

that is true. 

Mr. BURGESS. Well, it is not just the FDA. I mean, EPA is playing a role in this as well because of the propellant, the vehicle, the 

CFC that actually propels the medication. 

Ms. MCCARTHY. Certainly we have been working closely with 

FDA for many years on this issue, yes. 

66 

Mr. BURGESS. But the fact remains that because of the EPA, this 

medication is no longer going to be available to me after January 

1st. 

Ms. MCCARTHY. Well, the fact remains, I think that just to clarify, this is an issue where there are CFCs that actually are used 

in these inhalers, both in the ones you get by prescription and 

there is one remaining that is over the counter that has an impact 

on ozone layer, and as part of our obligation with the Montreal Protocol—— 

Mr. BURGESS. I would submit that the volume of CFC that is released into the atmosphere from the contingent of asthma patients 

that uses an occasional rescue inhaler that they buy at 2:00 in the 

morning is vanishingly small and not responsible for the hole in 

the ozone layer. And I will tell you, my own comfort at 2:00 in the 

morning takes vastly more precedent than any potential theoretical 

enlargement of the hole in the ozone layer. I just have to say, here 

is an example of, we come in here and we talk about in lofty terms 

that we want to prevent asthma deaths, and yet at the same time 

the EPA and the FDA in concert are acting to keep the medication 

out of the hands of the patients who so desperately need them. It 

is irony to the nth degree, and I thank the chairman for allowing 

me the indulgence. 

Ms. MCCARTHY. I am happy to have the discussion and bring 

back the dialog relative to FDA’s determination as to whether or 

not this inhaler is an essential use. 

Mr. BURGESS. Look, you are not going to get me defending the 

FDA. I promise you that. But both Federal agencies are playing a 

role in this, and the fact remains, January 1st, patients all over the 

country are not going to be able to get access to their medication. 

If we are concerned about asthma, we would fix that. 

Mr. WHITFIELD. Well, thank you, Dr. Burgess, and appreciate 

your raising that issue of sometimes unintended consequences. 

At this time I recognize the gentleman from Louisiana, Mr. 

Scalise, for 5 minutes. 

Mr. SCALISE. Thank you, Mr. Chairman. I appreciate you having 

this hearing, and I want to thank my two colleagues that were presenting the legislation that we are discussing today. I strongly support the legislation and what we are trying to do is I think bring 

some certainty to an area where is tremendous uncertainty, and 

unfortunately, the uncertainty has cost jobs. It has cost a lot of 

businesses, what we are seeing over and over from businesses in 

my district and other districts. When you talk to colleagues all 

around the country, you hear the same thing over and over. It is 

not only the uncertainty but the actual threats from real regulations or potential regulations coming down from agencies like the 

EPA that are impeding their ability to create jobs, that are impeding their ability to invest in their business, and I am looking forward to the next panel because we are going to hear from some 

people who are actually on the ground dealing with this, and while 

unfortunately some of my colleagues on the other side want to 

make fun of this and, you know, want to tell jokes about fairy dust, 

this is about real American jobs that are being lost because of these 

regulations, you know, and yet some people just want to make fun 

of that. They think it is funny that people in middle America, peoVerDate Aug 31 2005 09:14 Oct 17, 2012 Jkt 037690 PO 00000 Frm 00072 Fmt 6633 Sfmt 6633 F:\112-09~1\112-99~1 WAYNE
67 

ple in rural America are looking at these regulations that are coming down and looking at the threats. 

I want to read you to some—this is off of EPA’s Web site. You 

know, you are talking about some potential diseases coming, respiratory irritation, lung function reduction, asthma, inflamed damage to lungs, aggravated lung disease, permanent lung damage, 

and I know you rattled off some other things in your opening testimony. I am not talking about dust particles. I am talking about the 

ozone ruling. These were all the same things that EPA said were 

threats that you need to have this ozone ruling, and even President 

Obama said you are out of control. He pulled it back. And so when 

you come before our committee and no matter what bill it is, if it 

is Cement MACT or Boiler MACT or dust or ozone, you rattle off 

the same things over and over about, you know, if we don’t allow 

you to go forward with this or we bring a bill to prevent some radical regulation from EPA, it is going to send more people to the 

hospital and kids are going to get asthma and, you know. Lung disease, you know, you have been beating that drum for everything, 

and even the President said that you are out of line. And so I hope, 

you know, when you all come and oppose these commonsense bills 

to just put certainty in place, to prevent some regulations from 

coming in that aren’t there now that would put people out of business, when you keep saying the same things over and over about 

threats to health, I mean, are you saying that the President doesn’t 

support public health because the President said you went too far. 

Ms. MCCARTHY. I guess I am a little confused because I think 

this bill was initiated because the Administrator actually made it 

clear that she doesn’t intend to propose a change in the PM10

standard at this time. 

Mr. SCALISE. But then you should be OK with the bill because 

the bill just says that you won’t go forward with it. You are saying 

you are not going to do it. The thing is, you have said you are not 

going to do it on other areas, not you personally but EPA has done 

this in the past, and the chairman brought this up. The chairman 

of the committee talked about these consent decrees, these consent 

agreements that some of these outside groups will come and sue 

the EPA, and we have seen it with energy production, we have 

seen it with other things, and then you all go into an agreement 

with them. It is not a law, it is not even a rule, and yet you can 

go into these consent agreements and all of a sudden there is a 

new standard on the books that nobody agreed to. It wasn’t Members of Congress that agreed to it, the elected representatives of 

the people, it was some backroom deal cut either by a judge or, 

even worse, some outside group who is a specialist interest that got 

together with you all and you all came up with some kind of new 

agreement that everybody has got to comply with, and it puts people out of business. It kills jobs in this country. And we are just 

trying to say we are going to issue a preemptive strike before you 

all are forced in that position. You might not even want to do it, 

but if they bring you to court and all of a sudden some judge gives 

some ruling, everybody in America, rural Americans, all these 

farmers have to comply with this stuff. And I am trying to say, before you cost any more jobs, because you have already cost jobs, 

whether you agree with it or not. We can bring in business owner 

68 

after business owner and job creators that can tell you thousands 

of jobs in each industry that have been lost because of EPA regulations. We are just trying to say enough is enough before this new 

one comes out. Let us stop it. What is so wrong about that when 

you look at all the outside groups who—you are looking at over 100 

farmer groups, U.S. Chamber, National Association of Manufacturers, all these farm groups. I mean, I saw a story from the Illinois 

Farm Bureau. I mean, do you think they are just making up stuff? 

Do you think they are having imaginations about fairy dust, as it 

was suggested? I mean, these are people that on the ground trying 

to just create jobs and they are scared to death of what is coming 

down the pike from EPA. 

Ms. MCCARTHY. Congressman, the language in this bill goes far 

beyond the interest that you have expressed in making sure that 

the Administrator’s decision to not propose to change the—— 

Mr. SCALISE. All right. So if you don’t like the language, then 

what you are saying is, you are OK with some kind of prohibition, 

you don’t like this—— 

Ms. MCCARTHY. All I am suggesting is that this law is not necessary. 

Mr. SCALISE. I think a lot of hard-working farmers out there 

would—— 

Ms. MCCARTHY. And the only other—— 

Mr. SCALISE [continuing]. Disagree, but I yield back. I am out of 

time. 

Mr. WHITFIELD. The gentleman’s time is expired. 

I recognize the gentleman from Colorado, Mr. Gardner, for 5 

minutes. 

Mr. GARDNER. Thank you, Mr. Chairman, and thank you, Ms. 

McCarthy for your time here today. I truly appreciate it. 

We have talked a lot today, EPA currently has a PM10 standard, 

dust standard. Is that correct? 

Ms. MCCARTHY. Yes. 

Mr. GARDNER. And that basically means 150 microns per cubic 

meter of air at the 99th percentile. Is that what it means? 

Ms. MCCARTHY. That is correct. 

Mr. GARDNER. Which means you get about 3 days over the standard average over a 3-year period and you are still in compliance. 

Is that correct? 

Ms. MCCARTHY. Yes. 

Mr. GARDNER. OK. Does that standard apply across the country? 

Ms. MCCARTHY. Yes. 

Mr. GARDNER. Are there areas of the country that are in nonattainment for PM10? 

Ms. MCCARTHY. There are. 

Mr. GARDNER. And where are these areas? 

Ms. MCCARTHY. Well, I can certainly point them out to you. For 

the most part, they are in the western part of the United States. 

I would certainly be happy to share this with you. These—— 

Mr. GARDNER. Southern California, Arizona? 

Ms. MCCARTHY [continuing]. Are the 45 areas. That is right. 

Mr. GARDNER. Thank you. Do any of these nonattainment areas 

have any agriculture production? 

69 

Ms. MCCARTHY. Yes, many of them do. I think there is—it is primarily around urban areas where we monitor we most closely. 

Mr. GARDNER. What requirements are placed on those producers 

if they farm in a nonattainment area? 

Ms. MCCARTHY. It all depends. They may not be seen as contributing significantly to the nonattainment, in which case there is no 

obligation. In areas where they have been identified, which represent a couple of counties that I know about, there are a number 

of best management practices that have been developed with USDA 

and the farming community. They tend to choose what is most appropriate off that list and implement those measures. 

Mr. GARDNER. Well, I am glad you mentioned that, because in 

fact, since there is nobody on this committee from Arizona, I do 

have where some of the nonattainment areas are. I would like to 

ask that these documents be submitted to the record, Arizona’s 

mandatory BMPs, best management practices, for rural crop agriculture and mandatory BMPs for livestock producers. 

Mr. WHITFIELD. Without objection. 

[The information follows:] 

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Mr. WHITFIELD. Thank you. 

Mr. GARDNER. And it seems that based on these documents, the 

results of the PM10 standard that are set by the EPA that you currently regulate farm dust. That is what these documents are here 

for because of the regulations on dust that occurs in agriculture, 

farm dust. Now, I understand, I live in Colorado, it is very dry. I 

would love to ban dust. It seems like that is all we do is dust. We 

have worn the coffee table out with it. But I was just curious, your 

statement, and I have heard others say it is a myth that EPA is 

trying to regulate dust but you already do. Is that correct? 

Ms. MCCARTHY. Actually, we establish health-based standards. It 

is up to the States and the local communities to determine what 

is most appropriate to regulate. 

Mr. GARDNER. But that is on dust, right? You do regulate dust? 

Ms. MCCARTHY. We establish National Ambient Air Quality 

Standards—— 

Mr. GARDNER. The answer is yes, you regulate dust? I mean, that 

is why you have these best management practices here that are 

about farm dust. 

Ms. MCCARTHY. I believe that that is a regulation in Arizona and 

it being—— 

Mr. GARDNER. So Arizona just has this regulation, not because 

of the EPA? 

Ms. MCCARTHY. No, it is very directly a linkage because of the 

health consequences associated with coarse particles, some of 

which may be from farms if they determine that there is significant—— 

Mr. GARDNER. Which is farm dust and so you are causing them 

to regulate farm dust? 

Ms. MCCARTHY. We could probably continue this for a while but 

I do not—we do not directly regulate farm dust. We have no farm 

dust regulations. What we have is National Ambient Air Quality 

Standards that regulate coarse and fine particles, which many 

businesses, industries as well as some agricultural—— 

Mr. GARDNER. So let me rephrase my question. Do you regulate 

dust from farms? Maybe that is a different question. You know, 

farm dust, maybe there is no specific category for defining farm 

dust but do you regulate dust from farms? 

Ms. MCCARTHY. I really am not trying to be evasive. Let me tell 

you how—— 

Mr. GARDNER. But, see, the problem here is that what my district sees. This district is the 11th largest ag-producing district in 

this Congress out of 435. It is not fairy dust to them. This is a very 

real issue. 

Ms. MCCARTHY. I am not suggesting this is not a serious issue. 

Mr. GARDNER. EPA also suggested that they weren’t going to regulate milk from dairies but they had to actually put something in 

there—milk spills at dairies but they had to put something in the 

Federal regulations saying they weren’t going to regulate milk 

spills. You can see the problem that we face when it comes to the 

EPA and how our farmers and ranchers are trying to deal with it. 

We have best management practices from States that are dealing 

with the regulation of dust from farms. Now, whether that is farm 

dust or not, maybe that is a point of distinction. 

137 

Ms. MCCARTHY. In areas where farm dust contributes to nonattainment and imposes health concerns in those communities, 

there is certainly both a right and an obligation to take a look at 

those issues and to see if there are cost-effective practices that can 

be put in place that would reduce the health consequences associated with those emissions. But so I don’t see anything wrong with 

that. In fact, I see that as a good practice to continue. 

Mr. GARDNER. So do you think there should be regulations on 

dust from farms? 

Ms. MCCARTHY. 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 costeffectively—— 

Mr. GARDNER. So the answer is yes—— 

Ms. MCCARTHY [continuing]. And practically. 

Mr. GARDNER [continuing]. Dust from farms ought to be regulated? 

Ms. MCCARTHY. I did not say that, no. 

Mr. WHITFIELD. The gentleman’s time is up. 

At this time I recognize Mr. Pompeo of Kansas for 5 minutes. 

Mr. POMPEO. Thank you, Mr. Chairman. Thank you, Ms. McCarthy, for being here today. 

I want to spend time on the statute but first I do want to clarify. 

Mr. Markey didn’t take this very seriously. He talked about fairy 

dust. He talked about myths and fake Congressmen and fictitious 

things. Do you agree with him? Is this a myth? Are the 100 folks 

who signed that letter in support and everybody who talks to me 

back in Kansas, are they irrational, ignorant or just sadly mislead? 

Ms. MCCARTHY. I think there are many misunderstandings here, 

and there are complexities here that people don’t understand. I certainly understand—— 

Mr. POMPEO. So they are ignorant? 

Ms. MCCARTHY [continuing]. That the agricultural community is 

concerned. I do recognize the importance of the agricultural community, and we certainly don’t want EPA to look like it is adding 

burden on the farming community when in essence the Administrator has clearly said she has no intention of proposing a change 

in this PM standard. All of that is very real. 

Mr. POMPEO. I appreciate that. So you disagree with Mr. Markey? You take this seriously? 

Ms. MCCARTHY. I take my job very seriously. 

Mr. POMPEO. I appreciate that. 

I want to talk about what the proposed legislation does and what 

it does not do. Mr. Waxman talked about this eviscerating, gutting 

the Clean Air Act. I think that is the 57th time I have heard that 

in 10 months. Everything we do guts the Clean Air Act. He talked 

about taking away, eliminating regulations. This doesn’t eliminate 

any regulation. This just gives the States the ability to do it, and 

if they don’t do it adequately, you can come in and clean up their 

mess. Isn’t that right? As I read this language, isn’t that exactly 

what it says? This doesn’t deny anybody’s ability to regulate this 

coarse particulate matter. It just says we are going to give that to 

the States, and if you don’t get it right, we will come in and make 

138 

an adverse health finding, we will do a cost-benefit analysis and 

Ms. McCarthy will come in and clean up the mess, right? 

Ms. MCCARTHY. I think that if what you are saying is right, what 

you are saying is rolling back national standards, health standards 

that are necessary for public health protection. You are talking 

about giving those to local communities or States that certainly 

don’t have the scientific or the resource wherewithal to be able to 

make this happen. So I would say in essence you are actually gutting the Clean Air Act. 

Mr. POMPEO. Wow. So you think the States are completely incapable of making sure they can take care of the health of Kansas. 

My Governor, Governor Brownback and his Kansas Department of 

Health and Environment, are incapable of protecting the health of 

their citizens? 

Ms. MCCARTHY. Actually, I would—— 

Mr. POMPEO. They don’t have the resources. You said they don’t 

have the resources or the scientific knowledge out in flyover country? 

Ms. MCCARTHY. I would say that the way in which nuisance dust 

is defined here in what you would need to do to regulate it is potentially beyond the wherewithal of EPA and our scientists at this 

point in time, and I certainly wouldn’t want that burden imposed 

on States and local communities. 

Mr. POMPEO. Last point. So I think it was Mr. Waxman and you 

had a little colloquy about all the horrors that could follow. We 

could have school buses killing children, large open pit mining exemptions, and you said that this language might prevent the EPA 

from regulating those. This really isn’t a question. This is a statement and my observation. You have never let statutory language 

get in the way of your efforts to regulate things. We have made 

things clear. We make them explicit and you run through stop 

signs. And so here we have got language which doesn’t talk about 

school buses and yet you and Mr. Waxman say that this is going 

to allow school buses to do great harm. Do you really believe that 

this language would preclude you from doing those kinds of regulation for power sources and for school buses? My question is, do you 

believe that this language would preclude you? 

Ms. MCCARTHY. I believe that it very well could. 

Mr. POMPEO. It very well could? 

Ms. MCCARTHY. Yes. 

Mr. POMPEO. So you would sit with your team and you would say 

I don’t think we can do that? 

Ms. MCCARTHY. Well, one of the issues is, I am trying to understand what it was intended to do. Was it intended to do that? 

Mr. POMPEO. Well, you said before, it doesn’t matter, right? You 

said what does the language do. I think it is very clear what the 

language does. This language grants the rights to the States to regulate this and keep their folks safe, and then if there are health 

adverse health effects and if a cost-benefit analysis is completed, 

you all can go fix it. So I think it is very clear. We are trying to 

prevent EPA from doing not what an imaginary Congressman said 

they would do and not what some silly email chain that was fraudulent centered on but what your EPA staff said they were considering. 

139 

Ms. MCCARTHY. So this bill is actually intended not just to prevent the Administrator from ever being able to advance or enhance 

regulation of farm dust or coarse particles, it is actually intended 

to roll back 24 years of history in regulating coarse particles that 

started with the Reagan administration, that continued to the 

Bush administration, that protects public health today. That is the 

intent of this bill. 

Mr. POMPEO. My time is up. It is intended to do precisely what 

it says it will do. It is intended to stop the EPA from regulating 

farm dust, and I yield back the balance of my time. 

Mr. WHITFIELD. At this time I recognize the gentleman from Virginia, Mr. Griffith, for 5 minutes. 

Mr. GRIFFITH. Thank you, Mr. Chairman. 

All right. Let us get back into this and we will pick up right 

where we left off with Mr. Pompeo, because I am trying to figure 

it out, and I don’t think that the intent of this bill is to do any of 

the things that you think it is intended or that you were trying to 

imply that Mr. Pompeo was saying it is going to do. I think it is 

regulating farm dust. That being said, would you all support this 

bill if you changed on line 15, page 3—do you have the bill in front 

of you, ma’am? 

Ms. MCCARTHY. I do have it in front of me somewhere. Yes, I 

have it. 

Mr. GRIFFITH. If you changed on line 15—and I am not speaking 

for the patrons, I am just asking. On line 15, if you change the ‘‘or’’ 

to an ‘‘and’’, wouldn’t that resolve all of your semantic problems or 

all of your language problems? 

Ms. MCCARTHY. I am really not prepared at this time to negotiate the bill. What I will say is that I think that in—— 

Mr. GRIFFITH. Just look at the plain language of the bill. If you 

put an ‘‘and’’ there, there is no way anybody on earth could interpret that that would allow mining. Isn’t that correct? 

Ms. MCCARTHY. I do not know the answer. I can certainly go 

back and take a look at it. 

Mr. GRIFFITH. All right. Let us talk about this—— 

Ms. MCCARTHY. Could I just point out, one of the confusing 

things in the definition, it is—— 

Mr. GRIFFITH. I will take back my time, ma’am. 

Ms. MCCARTHY. OK. I am sorry. 

Mr. GRIFFITH. You know, I think most of us over here were offended by the fairy dust comment, and I was concerned about it 

enough that I got Representative Hurt to bring me his language, 

and apparently in his district, there was a farmer who has already 

been warned by a State regulator. Now, you indicated you weren’t 

aware of State regulations in Virginia, and I am happy to share 

those with you, if you would like, and these are the regs, not the 

underlying law but the regs in Virginia which talk about fugitive 

dust, and I guess what I want to know is, is that based on your 

earlier testimony, my impression is, is that you have all indicated 

to the States that this is the direction that they should go in. Is 

that not correct? You have indicated to the States that they should 

be regulating fugitive dust from agricultural sites? Is that not correct? 

140 

Ms. MCCARTHY. Not that I am aware of. In fact, even in the 

coarse particulate standard, our monitoring that we base our nonattainment decisions on is focused on urban areas. It is both focused on where there is the highest levels of pollution as well as 

where there is most population exposed. So we do not focus on 

rural areas as we implement that standard. So—— 

Mr. GRIFFITH. But as you have indicated, as time goes by, if 

there a coarse particulate matter issue, you all are going to go in 

and regulate that. And I guess one of my concerns is, is that in regard to another set of regulations, not this one, back when I served 

in the Virginia legislature on the Virginia Joint Commission on Administrative Rules and Regulations, we had an issue that came up 

and it looked like it was Virginia enacting something that we just 

thought was foolish, and when we pushed on it, they said well, we 

have been told by the EPA we have to do this. This was 

stormwater management. And we said well, bring them in, and the 

EPA came in and basically said that, you know, Virginia didn’t 

have any rights even outside of the Chesapeake Bay area and that 

they were going to force us to do it one way or another. And so I 

want to know, are we dealing with the same kind of situation with 

dust? Are you all going to tell the States that they have to do this 

or you’re going to come in and tell them how to do it? 

Ms. MCCARTHY. This is a National Ambient Air Quality Standard. That means that when States are implementing the program, 

they make their own judgments about what is cost-effective in 

terms of an implementation strategy for their States, and to the extent that it is lawful, EPA respects that judgment. 

Mr. GRIFFITH. Since this bill at this time only has a 1-year time 

limit or time period in it and you all have indicated that you are 

not planning to go forward with any new regulations on agricultural dust, why the opposition? Why don’t you join in and support 

the bill? 

Ms. MCCARTHY. Actually, it has two sections. The first one is the 

one that talks about a 1-year limit, but it is really not limited to 

coarse particles. It really spills into our ability to regulate fine particles. And section 3 really attempts to exempt nuisance dust from 

regulation altogether, and because of how broadly that is defined, 

it can certainly leak into all areas of the Clean Air Act and prevent 

us from being able to maintain the kind of health standards we 

have had for decades and the protections that the American people 

expect. 

Mr. GRIFFITH. But you do understand why people, as Mr. Gardner pointed out and others, why people are a little gun-shy when 

it comes to the EPA because we have seen things that don’t make 

sense and we had had, in fairness, the States have been run roughshod at times by the EPA, and so when we hear some of these 

things, we don’t always necessarily feel comfortable with it and we 

may at some point reach a level of trust but we are always going 

to have to verify. 

Thank you. I yield back my time. 

Mr. WHITFIELD. At this time the chair recognizes the gentlelady 

Ms. McMorris Rodgers for 5 minutes from Washington State. 

Mrs. MCMORRIS RODGERS. Thank you, Mr. Chairman. I appreciate the time and I appreciate Ms. McCarthy for being here. You 

141 

know, I too am struggling with the long list of regulations that 

have been proposed by the EPA administration this year, and at 

a time when unemployment in this country is at a record high, we 

continue to face one regulation after another that is making it, if 

not difficult, impossible for people to comply. I had someone in my 

office just the other day who said Cathy, the only way we can comply with the long list of regulations coming out of EPA is to simply 

not operate, and that is the fear that our farmers and ranchers face 

right now, and it seems that the administration is moving forward 

without the scientific, proven health benefits of many of these regulations. 

Now, 5 years ago, EPA concluded that the current PMT standard 

was appropriate, and yet today in many regions, they are still 

striving to comply with that standard. And that is why it makes 

us a little perplexed as to why earlier in the year EPA was recommending a stricter standard, and so in eastern Washington, whether we are working in the fields or herding our cattle or driving 

down a dirt road, dust is going to be kicked up, and that farm dust 

is a byproduct of American labor, not an air pollutant. So I understand that the Administrator has stated that the current standard, 

which has been in effect since 1987, will be continued. However, I 

too believe that farmers and ranchers in eastern Washington need 

more certainty. So I wanted to ask you, what made EPA go from 

earlier in the year proposing to exempt agriculture and mining to 

finalizing a standard that does not exempt them? 

Ms. MCCARTHY. Actually, that was an action that the Bush administration proposed in 2005 when it was doing its NAAQS review of the PM standard. They did propose to exempt agriculture 

from regulation. On the basis of all the comments that the Bush 

administration heard, they believed that the science was strongly 

indicating that it needed to be included within the definition of 

coarse particles and they didn’t exempt it. That was not this administration, that was the Bush administration. And EPA has yet 

to propose anything. And if and when we do, the Administrator has 

made it clear what she intends to propose. When that is finalized 

if that is challenged and it goes to court, if we lose that challenge 

we re-look at the NAAQS, but you are in no immediate danger of 

actually happening. 

Mrs. MCMORRIS RODGERS. But earlier in the year, you were proposing different standards, so what made you change—— 

Ms. MCCARTHY. We actually had never proposed anything. What 

we were proposing on PM10 was to wait for the Integrated Science 

Assessment. The Clean Air Science Advisory Committee did propose that the Administrator consider changing both the standard 

and form, which really wouldn’t have made the standard more 

stringent but it would have changed levels of protection in the 

country, and when the staff looked at that, they believed that the 

data wasn’t certain enough to warrant a recommendation solely to 

revise so the staff actually proposed two recommendations, one to 

keep it and one to revise it. When the Administrator looked at that, 

as she indicated in her letter, her assessment was that the science 

wasn’t certain enough to warrant a change in the form and standard and that she was going to propose retaining that standard. 

That is how it has worked out. And there has been a lot of misVerDate Aug 31 2005 09:14 Oct 17, 2012 Jkt 037690 PO 00000 Frm 00147 Fmt 6633 Sfmt 6633 F:\112-09~1\112-99~1 WAYNE
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understanding. So I apologize, but we did not—we have not put out 

a proposal in this administration relative to PM10 or 2.5. 

Mrs. MCMORRIS RODGERS. It feels like the administration continues to flip-flop, though, on where they are going to be on possibly proposing and when they might come, and so I guess I just 

want to also—it just begs the question, why are you opposing what 

is a very simple bill to clarify and send a clear signal to our farmers and ranchers that farm dust that is stirred up while they are 

working in the fields will not be regulated? 

Ms. MCCARTHY. I tried to make it clear that that is not what this 

bill says or does. 

Mrs. MCMORRIS RODGERS. Would you be willing to—would you 

give us your recommendations on how we could write that bill? 

Ms. MCCARTHY. We would certainly provide any assistance we 

can to the committee and that the chairman asks us to provide. I 

will tell you that it is a little baffling to me, because generally I 

am here because we are proposing to do something that you disagree with. Now we are proposing to do something that you agree 

with, and I am still here. There is got to be something we can do 

that—— 

Mr. WHITFIELD. We like you, Ms. McCarthy. 

Mrs. MCMORRIS RODGERS. It is the fear of what you might do in 

this example. 

Ms. MCCARTHY. But in one case, the fear is that the Administrator will be proposing something and it is sure to happen. In this 

case, the Administrator may be proposing something and you don’t 

think it is going to happen. The Administrator has been really 

clear. She is given this discretion under the law, and she will use 

that discretion wisely and she has made it clear the direction that 

we are heading. 

Mrs. MCMORRIS RODGERS. We have heard you say many times 

today ‘‘at this point in time’’ and we don’t know when that might 

change. 

I yield back. 

Mr. RUSH. Mr. Chairman, on that note, I would, if I could, ask 

unanimous consent to enter into the record the EPA technical assistance letter requested by myself and Ranking Member Waxman. 

Mr. WHITFIELD. Without objection. 

[The information follows:] 

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Mr. WHITFIELD. Thank you so much. 

At this time I recognize the gentleman from California, Mr. 

Bilbray, for 5 minutes. 

Mr. BILBRAY. Thank you very much, Mr. Chairman. 

I was sort of taken back by comments made by the gentleman 

from Santa Monica that somehow there is no regulation on farming 

and nobody is proposing regulations on farming and that the whole 

concept of regulating farming is a myth, and I would like you to 

kind of, you know, bring me back up to speed. It has been a while 

since I have been in the clean air, you know, game. Wasn’t there 

or isn’t there an ongoing program to reduce silicone emissions in 

the western San Joaquin Valley? 

Ms. MCCARTHY. Yes, there is. 

Mr. BILBRAY. And that is PM10, ma’am, and 2.5? 

Ms. MCCARTHY. Yes, that is true. 

Mr. BILBRAY. OK. So isn’t there also an ongoing program to reduce or eliminate the use of gravel or the use of gravel roads in 

the Sierra Nevada because of the dust potential with serpentine 

being used as the gravel? 

Ms. MCCARTHY. I am not aware of that. I apologize. 

Mr. BILBRAY. OK. If you could ask your staff to take a look at 

that. 

And then the Owens Valley is a very rural, very isolated area. 

Have they abandoned their concept of particulate management in 

the Owens Valley? 

Ms. MCCARTHY. No, there are many areas in California that are 

out of attainment of those standards and that work with the agricultural and other communities to try to reduce dust. 

Mr. BILBRAY. So for the record, there has been historically intervention in a rural area by regulatory agencies to control and regulate both PM10 and 2.5? 

Ms. MCCARTHY. Yes. 

Mr. BILBRAY. OK. I just want to make that clear because the reference was like nobody has ever done this, we are not talking 

about this, and the fact is, when somebody out in the West starts 

talking about this, you know, let me tell you, the gentleman from 

Santa Monica is saying in our own State we have had extensive 

impact on ag and rural area impacts in our clean air management, 

and I think it is disingenuous to tell the rest of the country that 

these things haven’t happened and won’t happen and don’t be worried about it. I think there is a very real situation that we ought 

to be open and frank about and not try to deny the fact that there 

is a real potential, either now or in the future, that farming operations, that rural activities will be severely impacted in their traditional historical manner of operation because we are looking at addressing both of these particulate issues. Is that fair to say? 

Ms. MCCARTHY. I am sorry. I think I sort of—— 

Mr. BILBRAY. Is it fair to say that from the history of what we 

have done in other parts of this country to manage the particulate 

issue that it is unfair to tell the people in the rest of rural America 

that there is no way they are going to be impacted, no way that 

their operations may be modified? 

Ms. MCCARTHY. Ever? I certainly would never make that claim 

one way or the other. 

148 

Mr. BILBRAY. I just—farming has been curtailed in California in 

certain areas during certain times of the year. Farming has been 

impacted. The use of water and the way the water was distributed 

in a State that is dying for water has been impacted through this 

management practices on this, and I just think we need to clarify 

that, you know, there is this issue of once you justify taking action 

on the item, you do not say rural, urban has a different game. You 

do not say farming will be protected in our implementation. Everybody is thrown into the pile. There is no guarantee that traditional 

agricultural activities will not be severely impacted once you start 

implementing the programs, right? 

Ms. MCCARTHY. You look at all sources of pollution. I will say in 

terms of agriculture that how the States and local air districts have 

worked with USDA and the agriculture community has actually be 

very collaborative, and in the San Joaquin Valley, as far as I know, 

it has been enormously successful. 

Mr. BILBRAY. Well, I think that if we see the impact and a lot 

of the concerns over there, and the Owens Valley is the other one 

that still is a real issue of do we use our water to feed our cities 

and our crops or do we use the water to spray over the Owens Valley to reduce the particulate matter. That is the kind of catch-22 

that we get into. 

Ms. MCCARTHY. One of the reasons why we work with USDA is 

there are a number of strategies that the farming community can 

employ. Many of them are supported by—— 

Mr. BILBRAY. To interrupt, I want to make it clear. You made a 

statement that this impacts urban areas, and I think you want to 

correct that. It does not only urban areas. Rural areas are impacted 

severely with the PM10 and 2.5 and the potential. A nonattainment 

area does not know if it is an urban area or rural area. Nonattainment areas are managed as one proposal. 

Ms. MCCARTHY. May I clarify the point I was trying to make? 

Mr. BILBRAY. Yes. 

Ms. MCCARTHY. I am sorry. 

Mr. WHITFIELD. Go ahead. 

Ms. MCCARTHY. Very quickly. What I was talking about is how 

you identify nonattainment areas. We monitor nonattainment 

areas. We don’t model them. Our monitoring is focused on areas 

where you have both high levels as well as high population density. 

So even in the areas that you are talking about, they are surrounding high population density areas, although the rural areas 

may come in as part of the nonattainment area. 

Mr. BILBRAY. Excuse me, ma’am. The Central Valley is not an 

urban area, and the great majority is nonattainment. I yield back. 

Mr. WHITFIELD. Ms. McCarthy, you raised an interesting issue 

on the monitors. Would you provide the committee with a list of 

where monitors are located by State and how that is determined? 

Ms. MCCARTHY. Of course. 

Mr. WHITFIELD. Thank you. 

It looks like there are no more questions, so Ms. McCarthy, 

thanks very much for being with us today. We appreciate your time 

and look forward to working with you as we move forward. 

At this time I would like to call up the third panel. On the third 

panel, we have seven witnesses. First, Mr. Steve Foglesong, who is 

149 

a ranch owner of the Black Gold Cattle Company and immediate 

past President of the National Cattlemen’s Beef Association. We 

have Mr. Kevin Rogers, who is the President of the Arizona Farm 

Bureau, who is testifying on behalf of the American Farm Bureau. 

We have Mr. Pete Lien, who is the President of Pete Lien and 

Sons, Inc., who is testifying on behalf of National Stone, Sand and 

Gravel Association. We have Mr. Till von Wachter, PhD, Associate 

Professor of Economics at Columbia University. We have Mr. John 

Walke, who is Senior Attorney and Director of the Clean Air Program at the Natural Resources Defense Council. And we have 

Gregory Wellenius, who is Assistant Professor of Community 

Health at Brown University. 

So I want to thank all of you for joining us this afternoon to discuss H.R. 1633 and the regulation of particulate matter. We look 

forward to your testimony. Each one of you will be recognized for 

5 minutes for your opening statement, and so Mr. Foglesong, we 

will start with you and you will be recognized for 5 minutes, and 

be sure and turn your microphone on. 

STATEMENTS OF STEVE FOGLESONG, RANCH OWNER, BLACK 

GOLD CATTLE COMPANY, ON BEHALF OF NATIONAL 

CATTLEMEN’S BEEF ASSOCIATION; KEVIN ROGERS, PRESIDENT, ARIZONA FARM BUREAU FEDERATION, ON BEHALF 

OF AMERICAN FARM BUREAU FEDERATION; PETE LIEN, 

PRESIDENT, PETER LIEN & SONS, INC., ON BEHALF OF NATIONAL STONE, SAND AND GRAVEL ASSOCIATION; KURT E. 

BLASE, PARTNER, HOLLAND & KNIGHT, ON BEHALF OF 

COARSE PARTICULATE MATTER COALITION; TILL VON 

WACHTER, ASSOCIATE PROFESSOR OF ECONOMICS, COLUMBIA UNIVERSITY; JOHN WALKE, SENIOR ATTORNEY AND 

CLEAN AIR DIRECTOR, NATURAL RESOURCES DEFENSE 

COUNCIL; AND GREGORY WELLENIUS, ASSISTANT PROFESSOR OF EPIDEMIOLOGY, BROWN UNIVERSITY 

STATEMENT OF STEVE FOGLESONG 

Mr. FOGLESONG. There we go. Thank you for the technological 

advice. Us ranchers sometimes struggle with that. 

Mr. WHITFIELD. Well, everyone forgets. 

Mr. FOGLESONG. Oh, OK. I am feeling more comfortable all the 

time. 

Good morning, Chairman Whitfield and Ranking Member Rush 

and members of the subcommittee. Anybody that knows anything 

about cattle ranching and feeding knows that many operations are 

located where wind blows, and that makes dust a part of everyday 

life. The idea that the EPA may decide to require me and other cattle producers in every part of the country to somehow control that 

dust gives me cause to lose a lot of sleep at night. The fact is, farmers and ranchers want and need certainty about this issue. 

While I and ranchers across the United States are pleased the 

EPA has decided not to propose to lower the standard this year, we 

can’t be 100 percent sure of that outcome of the rulemaking until 

it is final. In fact, in 1996 the EPA proposed to remove the PM10

24-hour standard altogether only to bring it back in the final rule, 

and then again in 2006 the EPA proposed to exempt ag dust. That 

150 

exemption also disappeared in the final rule. In addition, even if 

the EPA retains the current dust standard, the opportunity remains for that agency to tighten it in the future. Unless Congress 

passes the Farm Dust Regulation Prevention Act, that threat remains. 

Now, I know that the EPA currently regulates dust. Cattle operations have found it very difficult and expensive to comply. One operation that I know of in Arizona spent $400,000 to comply with 

that current standard. That is $1,000 a day just to control dust. 

Most of that is to sprinkle water in those pens, and that is just the 

current standard. Just think about how much it would cost if the 

EPA were to actually lower that standard in the future. If that 

happens, the simple fact is that many farms and ranches may be 

forced out of business. 

Ranchers have been concerned about that possibility for many 

years but most recently the fear surfaced when EPA revealed it is 

considering making the dust standard essentially twice as stringent as the current standard. NCBA and the Coarse Particulate 

Matter Coalition commissioned a study on the impact of the possible new dust regulation on rural America. The study determined 

that vast areas of the Midwest, Southwest and western parts of the 

United States would be thrown into the brink of nonattainment if 

not completely into that nonattainment altogether. 

It would be one thing if there were a good reason to regulate 

farm dust, but there is not. The regulation of dust under the Clean 

Air Act is supposed to be based on scientific evidence of adverse 

health effects. Historically, there has been no such evidence of adverse health effects from dust at ambient levels but EPA has decided to regulate it anyway. Why? In 2006, EPA based its decision 

on the precautionary principle. That is right. EPA’s dust regulation 

is not based on science but on supposition. Let me explain. Particulate matter is separated into two distinct sizes and kinds of matter. 

Fine PM is combustion-driven material and the size range of 2.5 

microns and smaller, known as PM2.5. That is cigarette smoke. 

Coarse particulate matter, or dust, on the other hand, is bigger 

particles in the range of 10 microns and smaller down to 2.5 microns. PM10 includes both sizes and kinds of particles. The reason 

I mention particle size and composition is because, incredibly, the 

EPA is regulating dust using scientific studies that show adverse 

health effects that may all be caused by combustion-type fine PM, 

not dust. The studies EPA reviewed are studies looking at the 

health effects of PM10 from urban areas that are contaminated with 

combustion-type fine PM. Any adverse health effects the studies reveal may well be caused by the fine PM, not the coarse PM. 

Use of these studies to identify health effects for purposes of establishing a coarse PM dust standard is inappropriate, especially 

for rural areas, where urban contaminants are not a concern. Nevertheless, EPA uses a single standard to regulate dust in urban 

and rural areas. The contaminant issue I mentioned is just one of 

many problems with the EPA’s PM10 studies. 

I am not a scientist or a medical doctor but I want a confirmation, so we asked Dr. Jonathan Borak, Clinical Professor of Epidemiology and Public Health at Yale University School of Medicine, 

to review EPA’s health studies. Dr. Borak is a highly respected sciVerDate Aug 31 2005 09:14 Oct 17, 2012 Jkt 037690 PO 00000 Frm 00156 Fmt 6633 Sfmt 6633 F:\112-09~1\112-99~1 WAYNE
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entist and in fact was one of the founding members of EPA’s own 

Scientific Advisory Committee. He found many problems with the 

studies on which EPA relies and determined that those studies do 

not establish risk from a health basis for dust regulation. I have 

attached his comments to my testimony for the record. 

In an effort to bring a little common sense back into this process, 

cattlemen believe that the best solution is for Congress to pass the 

Farm Dust Regulation Prevention Act of 2011. Regulatory uncertainty is unnecessary and unproductive. If EPA follows though and 

does not revise the dust standard, this action would to some degree 

provide us with certainty but for no more than 5 years. It provides 

no relief to producers who are spending over $1,000 a day on dust 

control measures right now. We need immediate, permanent relief 

from Federal dust regulations on farms and cattlemen believe the 

best way to achieve that is by passing the Farm Dust Regulation 

Prevention Act. 

Thank you, sir. 

[The prepared statement of Mr. Foglesong follows:] 

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Mr. WHITFIELD. Thank you, Mr. Foglesong. 

Mr. Rogers, you are recognized for 5 minutes. 

STATEMENT OF KEVIN ROGERS 

Mr. ROGERS. Thank you, Mr. Chairman. Members of the subcommittee, my name is Kevin Rogers. I am a fourth-generation 

farmer. I farm with my family over 7,000 acres of land in Arizona. 

We produce cotton, alfalfa, wheat, barley and corn silage. I am currently the President of the Arizona Farm Bureau and I also serve 

on the USDA Air Quality Task Force, which advises the Secretary 

of Agriculture on Federal clean air policies that affect farmers. 

I am pleased today to testify on behalf of the American Farm Bureau Federation in support of H.R. 1633, the Farm Dust Regulation 

Prevention Act. My farm in Arizona lies in one of the worst areas 

for dust PM 10 in the Nation. Within the past couple of months, 

four huge naturally occurring dust clouds rose from the desert floor 

and swept over Phoenix. Also, some of that happened in Texas as 

well. It covered Tucson in southern Arizona as well. This is the 

dust that EPA regulates under the coarse particulate matter with 

the National Ambient Air Quality Standard. H.R. 1633 provides a 

reasonable and commonsense approach to controlling ambient PM 

in a way that recognizes the natural occurrence of farm dust while 

also recognizing the public health mandate the Clean Air Act requires. By excluding nuisance farm dust from regulation, the bill 

allows EPA to continue regulating manmade emissions of particulate matter while at the same time not trying to regulate natural 

occurrences. The exclusion focuses EPA’s attention on things that 

EPA can control rather than trying to regulate nature. 

The bill does not roll back any EPA protections afforded under 

the Clean Air Act. Rather, it reinforces the idea that regulatory decisions should be based on sound science. 

The record here is clear that scientific data on possible health effects of PM10, or dust, is highly uncertain. The bill provides the 

necessary flexibility for EPA to step in and regulate if the science 

more conclusively shows the naturally occurring farm dust causes 

adverse health effects. The bill recognizes the great disparity in the 

coarse PM10 ambient air quality levels from one part of the country 

to another, from rural to urban areas, by providing for State and 

local regulation of rural nuisance dust from farming areas. The bill 

allows management flexibility to deal with unique local circumstances. 

We do applaud the recent announcement by Administrator Jackson that EPA will not propose changes to the current PM10 standard. That does not mean that farm dust is not or will not be regulated under the Clean Air Act. For those of us in a coarse PM10

nonattainment area, our activities have already been regulated and 

will continue to be regulated. The Phoenix area has not been in 

compliance with the coarse PM10 NAAQS standard for many years. 

Arizona Farm Bureau participated with the State to develop a 

coarse PM10 permit to control agricultural PM10 emissions and reduce our agricultural practices that produce PM. The program developed best management practices in three different categories. 

The farmers are required to adopt one BMP in each category. The 

program was recently amended to require two BMPs from each catVerDate Aug 31 2005 09:14 Oct 17, 2012 Jkt 037690 PO 00000 Frm 00224 Fmt 6633 Sfmt 6633 F:\112-09~1\112-99~1 WAYNE
219 

egory. Now the EPA and the State, because we continue to be in 

a nonattainment area, are pushing for more restrictions and mandating restrictions against working the fields when winds reach a 

certain speed. 

All farms and ranches activities in a nonattainment area are regulated under the Clean Air Act. The program we have is a mandatory program, and all producers must participate. Those who do not 

participate in our BMP program must obtain an individual air permit, similar to those required by utilities and factories. BMPs include practices such as tillage based on soil moisture, not working 

the fields in windy conditions, modifying equipment to prevent PM 

generation, speed limits on unpaved roads, planting wind breaks 

and permanent cover crops, just to name a few. All these activities 

place restrictions on farming operations and have economic consequences. 

I can tell you that if I am required to park my tractor on windy 

days or when soil moisture is insufficient, it continues to cost me 

time and money in lost labor and productivity, or if I am required 

to have my employees drive 15 miles an hour on my farm dirt 

roads, it will greatly increase the time we must spend on these 

roads, taking time away from engaging in other more productive 

activities. Others with similar restrictions suffer similar economic 

hardships. 

The fact that Administrator Jackson has determined to retain 

the current coarse PM10 standard for the next 5 years is very good 

news, but it only addresses one part of the dust problem facing 

rural America. H.R. 1633, by excluding naturally occurring nuisance farm dust from the Clean Air Act, unless the science is more 

conclusive, warrants it, addresses the other. 

I thank the committee for your time and look forward to answering questions when it is appropriate. 

[The prepared statement of Mr. Rogers follows:] 

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Mr. WHITFIELD. Thank you, Mr. Rogers. 

Mr. Lien, you are recognized for 5 minutes. 

STATEMENT OF PETE LIEN 

Mr. LIEN. Chairman Whitfield and members of the subcommittee, thank you for inviting me to testify on behalf of the National Stone, Sand and Gravel Association at this hearing on the 

Farm Dust Regulation Prevention Act, which would prevent the 

harmful effects of EPA’s regulations of nuisance dust. 

My name is Pete Lien. I am President of Pete Lien and Sons of 

South Dakota, which was started in 1944 by my grandfather. Representative Noem is my Congresswoman, and I am pleased to express NSSGA’s support of her legislation. 

My association’s members produce more than 90 percent of the 

crushed stone and 70 percent of the sand and gravel consumed annually in the United States. There are more than 10,000 construction aggregate operations nationwide. Aggregates are the chief ingredients in asphalt, concrete and used in nearly all residential, 

commercial and industrial building construction and in most public 

works projects including roads, highways, bridges, dams, airports, 

water and sewage treatment plants, and tunnels 

The aggregates industry has experienced the most severe recession in its history. Production of aggregates has gone from 3 billion 

metric tons valued at $21 billion in 2006 to 2 billion metric tons 

valued at $17 billion in 2010, a drop of $4 billion. Of particular importance to this hearing is 70 percent of NSSGA members are considered small businesses and many are located in rural area. 

NSSGA members are committed to full compliance with all pertinent environmental laws and regulations and emphasize sustainable practices. I am proud to say my own family business has reserves and plans for 200 years of operation into the future. We 

have also won numerous awards including a letter of commendation from the Bureau of Land Management for reclamation before 

reclamation was even required by law. We are the winner of the 

NSSGA’s Environmental Steward Award, and the only quarry ever 

to win EPA’s Earth Care Award, which was presented by Robert 

Redford. 

Like agriculture, resource-based industries such as aggregate 

producers have limited opportunities to reduce dust. To meet the 

current standard for dust, or PM10, aggregate facilities are required 

to have permits with State environmental agencies which seem to 

control dust by limiting production and requiring control technologies to limit dust on crushers and other equipment and road 

maintenance. Some dust is generated at an aggregates operation by 

crushing stone and truck traffic. However, most of it is from uncontrollable sources such as from roads and windblown dust, particularly in our rural areas. 

There is no practical way to control natural dust sources in the 

West and Southwest and reduce the PM10 ambient air concentration. Nevertheless, EPA continues to promulgate unworkable 

standards that hurt job growth without any health benefits. For example, in Utah, if EPA would have reduced the standard by as 

much as a half, 23 of the 29 counties would go into nonattainment, 

235 

which would result in extreme limits on production and/or facility 

closures and further threaten much-needed highway funding. 

One NSSGA member has calculated that in order to meet a lowered standard as contemplated by EPA, a typical facility would 

have to reduce production by more than two-thirds. This would 

substantially change the business model and lead to plant closure 

and the loss of 50 jobs or dramatic increase in the price of the product. Given the over 10,000 operations in the United States and virtually every Congressional district is home to an aggregates operation, this could result in significant job losses. 

Taken further, a cut in aggregates production would lead to a 

shortage of stone, concrete and asphalt for State and Federal road 

building and repair, commercial and residential construction, which 

in turn would cause an increase in the price of materials for those 

projects ranging from 80 percent to 180 percent and further suppress employment in the construction industry. Given that infrastructure investment is essential to economic recovery and growth, 

any change in the PM10 standard would impose an additional burden on the aggregates industry that is unwarranted and would adversely impact aggregate supply and vitally important American 

jobs. 

NSSGA appreciates this opportunity to speak on the devastating 

effects of over-regulating nuisance dust on the aggregates industry. 

Thank you, Mr. Chairman. I will be glad to respond to questions. 

[The prepared statement of Mr. Lien follows:] 

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Mr. WHITFIELD. Thank you. 

And Mr. Blase, we appreciate your being with us. I failed to state 

that you are representing the Coarse Particulate Matter Coalition. 

You are recognized for 5 minutes. 

STATEMENT OF KURT E. BLASE 

Mr. BLASE. Thank you. Good morning, Chairman Whitfield, 

Ranking Member Rush and members of the subcommittee. Thanks 

for inviting me to testify this morning. My name is Kurt Blase, and 

I am Counsel to the Coarse Particulate Matter Coalition. 

The coalition is an organization of industry groups with an interest in scientifically sound regulation of coarse PM and air. The current members of the coalition are listed in my written testimony. 

The past two reviews of the National Ambient Air Quality Standard for PM10 have focused increasingly on road dust as a potential 

public health threat. The theory has been that dust by urban roadsides can become contaminated by other materials that render 

them more toxic. In contrast, dust composed primarily of crustal 

material has been reported to be harmful only at ambient levels 

much higher than the current Federal standard. 

Our coalition consistently has supported retention of the current 

PM10 standard while exploring avenues of relief for natural dust 

emissions. The current standard limits production and therefore 

employment by imposing stringent dust emission limits in permits 

and State plans. Compliance with the current standard is very difficult to maintain at our operations. We have been surprised by recent contentions that the regulation of dust is inconsequential. 

There is one extra point I would like to make here with respect 

to permits. We have talked a lot this morning about the effect of 

nonattainment areas where the monitors are placed. A couple of 

things there. I mean, even if you are in an unmonitored area now, 

if the feds change their monitoring criteria, their siting criteria, 

you can be monitored. If a private party such as the Sierra Club 

story that Mr. Hurt told wants to come and monitor you, they can 

do that. And more importantly, for our group, really nonattainment 

and monitoring is almost not an issue because we have to have permits and our permits have to show attainment of the standard at 

the fence line regardless of the attainment status of the area in 

concern. I mean, it is these permits even more than the nonattainment or attainment designation that are limiting our ability to 

produce right now on the basis of this standard. 

It is widely recognized that coarse PM concentrations vary widely 

on a local and regional basis. A recent study commissioned by our 

coalition, which was mentioned earlier, sheds further light on this 

issue. A copy of the report is attached to my testimony. I would like 

to emphasize several of the conclusions here. 

There are great differences in both the quantity and quality of 

coarse PM emissions throughout the United States. For example, 

PM10 in the West, Southwest and Midwest is composed primarily 

of coarse particulate matter while PM10 in the East is composed 

primarily of fine particulate matter. In the West, Southwest and 

Midwest, the variations among PM10 within single counties are 

very high. By contrast, the within-county differences in the East 

are much smaller. 

251 

The localized nature of dust impacts leads to a great disparity in 

the effects of a single Federal standard on the different areas of the 

country. Our study focuses on the impacts of a potential new standard recommended for consideration in EPA’s PM policy assessment. 

The potential new standard would be set somewhere within the 

range of 65 to 85 micrograms per cubic meter with a change to the 

98 percent statistical form. The policy assessment concludes that a 

standard of 85 with a change in the form would be roughly equivalent to the current standard, and I heard the Assistant Administrator repeat that several times this morning. However, our study 

concludes that such a standard would be much more stringent than 

the current standard, particularly in the West, Southwest and Midwest as a result of the nature of the PM10 emissions in those areas. 

Under the potential new standard, localized areas in virtually all 

of the West, Southwest and Midwest would be vulnerable to 

exceeedances. This is depicted in a map taken from our report, 

which is attached to my testimony, and I don’t have it handy but 

it covers—oh, there it is. OK. You can see the extent of the country 

that it covers these. In these vulnerable areas, farmers, owners of 

dirt roads and operators of material storage and handling equipment will have few, if any, reasonable options to reduce emissions. 

Employment and businesses generating fugitive crustal dust will 

be impacted negatively. This impact would occur despite the conclusion in the policy assessment that the current Federal standard 

can reasonably be judged to provide sufficient public health protection. 

Given the choice between the current and the potential new Federal standards, we have consistently supported retention of the current standard. In that respect, we are encouraged by the Administrator’s recent letter indicating that EPA will propose to retain the 

current standard. However, the reasons I have discussed, we believe that State and local regulation is a much more efficient and 

effective means of protecting public health against dust emissions 

that have a very localized impact. Accordingly, we strongly support 

H.R. 1633 and we urge the subcommittee to adopt it. 

I would be glad to answer any questions. 

[The prepared statement of Mr. Blase follows:] 

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[Additional information for the record is available at http:// 

www.beefusa.org/CMDocs/BeefUSA/Issues/ 

PM%20Final%20PM10%20Report%200711.pdf] 

Mr. WHITFIELD. Thank you, Mr. Blase. 

Dr. von Wachter, you are recognized for 5 minutes. 

STATEMENT OF TILL VON WACHTER 

Mr. VON WACHTER. Thank you, Chairman Whitfield, Ranking 

Member Rush and members of the subcommittee. It is a great 

honor to be with you today. 

Existing evidence suggests that air regulation provides important 

benefits in terms of improved air quality, improved health outcomes and improved housing values. However, it is also widely acknowledged that air regulation carries potential cost in terms of 

lower employment and lower productivity in regulated sectors. In 

my testimony, I will focus on current estimates of these costs and 

in particular on the costs for those workers most affected by the 

regulation, which are workers displaced when they are previously 

stable jobs. 

So current best estimates of the effect of the Clean Air Act suggest that the economic costs for workers present in regulated sectors at the time of regulation are non-negligible. Existing research 

has shown that employment and productivity in regulated sectors 

declines, at least in the short run. In addition, there are large and 

persistent wage reductions for workers induced to leave regulated 

firms, especially those who end up working in a different sector. 

Whether the costs of air regulation are of the same order of magnitude as the benefits in terms of improved health or housing values is likely to depend on the regulation and the environment 

which takes place. So for example, the most comprehensive study 

of the effects of the 1990 Clean Air Act Amendments suggests that 

there was a loss in wages over the next 10 years of workers who 

went through nonattainment of about $9 billion. Now, that is relative to the estimated benefits of the 1990 Clean Air Act Amendments. These losses appear to be temporary. 

However, it is important to keep in mind that the 1990 Clean Air 

Act Amendments may have represented a best-case scenario. Why 

would that be? Well, this is because the amendments came into 

force not long before the high-pressure labor market in the mid to 

late 1990s, and this matters, because the cost of regulation in 

terms of lost wages and employment tends to mostly accrue to 

workers who are actually displaced due to the regulations, so it is 

job losers that lose their jobs as a consequence of regulation who 

bear most of the costs and job losses, especially for job losses for 

workers who had found a stable job at a good, stable firm can lead 

to very long-lasting large earnings losses. These earnings losses 

can least up to 10 to 15 to 20 years, and job loss is also followed 

by extended periods of job instability and earnings instability, and 

during these periods, job losers can experience decline in health. 

For example, in severe downturns, these health declines can lead 

to significant reduction in life expectancy over the next 20 or 30 

years after a job loss. 

The consequences of job loss are also felt by workers’ children, 

who can suffer from the consequences even as adults and by their 

260 

families, and job losses have also been associated with a higher 

rate of entry into potentially costly public programs such as Social 

Security disability insurance or early claiming of retirement benefits. 

The earnings costs of job displacement, and this is important, 

has found to be substantially higher in recessions than in booms. 

While we know that even displacement in good economic periods 

can lead to lasting earnings losses, the one exception is the mid to 

late 1990s where even job losers tend to recover a big chunk of 

their earnings losses. So workers displaced from the firms as a consequences of the 1990 Clean Air Act Amendments were placed in 

an ideal case scenario because a few years down the road a very 

high-pressure economy pushed up their earnings. 

To conclude, while many workers affected by air regulations are 

likely to be sufficient mobile to find a new job without major losses 

in employment and warnings, a subset of workers induced to move 

from their job due to the regulation either voluntarily or by layoff 

are at risk of experiencing quite large and lasting losses of earnings. Existing research suggests that these earning losses may be 

substantially larger in difficult economic environments. 

Based on these findings, the economic costs of air regulations are 

likely to depend very much on the economic circumstances in which 

the regulation is enacted. Hence, a case-by-case assessment of 

these costs and their dependence on the economic environment, the 

type of regulation and the type of workers affected are important 

aspects when considering the net gain of air regulation. 

Now, since I have a few seconds left, let me say, the results I 

quoted from the scientific studies mainly pertain to any reason the 

county could go into nonattainment that includes the PM10 standard, but it is not focused on this like PM3 to PM10 thus it could 

be due to coarse particulate matter. It could be just due to fine particulate matter or any other of the other criteria. 

Now, the question you are asking, namely, has coarse particulate 

matter differential effect in rural areas that are engaging in agricultural production, or where there is a power plant or mining, as 

opposed to urban area is a very important question that academics 

potentially can answer, but it is a very difficult question that requires, as you can imagine, a very large amount of data. So this 

is sort of a call in my last seconds to provide this detailed amount 

of information so we can actually answer that important question 

you were asking. 

[The prepared statement of Mr. von Wachter follows:] 

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Mr. WHITFIELD. Thank you, Dr. von Wachter. 

Mr. Walke, you are recognized for 5 minutes. 

STATEMENT OF JOHN WALKE 

Mr. WALKE. Thank you, Mr. Chairman and members of the subcommittee. My name is John Walke. and I am Clean Air Director 

for the Natural Resources Defense Council. 

As the hearing today has shown, H.R. 1633 is premised on a 

problem that does not exist, that is, nonexistent EPA limits on 

farm dust. However, the devilish details of this poorly drafted bill 

actually create more real problems that the imaginary problems 

the bill purports to solve. 

The bill is sweepingly overbroad and it creates numerous damaging consequences that appear to be unintended but that would 

in fact harm Americans. The result would be increases in harmful 

soot pollution, not just coarse particulate matter but deadly fine 

particulate matter, and across the country, not just in rural America but urban and metropolitan areas too. The legislation 

inexplicably weakens, eliminates or blocks Federal Clean Air Act 

authority over overwhelmingly industrial pollution from power 

plant, manufacturing facilities, mines and the like, again as a result of very overbroad and poor drafting. 

Before you consider voting for a bill under the misconception that 

you are just addressing so-called farm dust, I urge your staff to examine closely the testimony by Assistant Administrator McCarthy 

and my own testimony to see whether you find fault with any of 

this legal analysis or factual implications of the bill. I will note that 

none of the other witnesses here today have contradicted those 

legal interpretations in their written testimony. 

Finally, I urge your attention to a careful reading of the written 

testimony of most of the majority witnesses and Representative 

Noem’s opening statement. Each time that testimony complains of 

existing regulations of farm dust, they are talking about State regulation, not EPA regulation, for example, in Arizona or Illinois. 

Isn’t it paradoxical then that this bill does not eliminate State regulation of farm dust or its monitoring? By the same token, some 

have criticized the temporary relief provided by Administrator 

Jackson’s pledge yet this bill provides a 1-year period of relief 

whereas Administrator Jackson’s pledge provides a 5-year period of 

relief, equally paradoxical. 

H.R. 1633 has been presented under the legislation guise of 

blocking nonexistent and unplanned EPA regulations of farm dust. 

I invite any witness or member to identify an EPA regulation in 

the Code of Federal Regulations where EPA imposes limits on farm 

dust. There are none. 

Since Mr. Terry, who is not with us now, mentioned NRDC earlier, I invite him or any other member to identify any statutory authority to compel EPA to impose limits on farm dust. There is no 

such authority from me or any other environmental group to invoke. 

Finally, I invite any member to identify any job in America that 

has been eliminated due to EPA limits on farm dust. There is none. 

If Congress truly wants to address so-called farm dust with a 

simple bill, all it would take is a single sentence that says EPA 

266 

shall not limit farm dust if States are doing so already yet this legislation does far more and far worse. As Mr. Pompeo correctly 

reads the bill, it removes Federal Clean Air Act over deadly soot 

pollution from power plants, mines and the like if States if doing 

so already. Mr. Griffith does not read the bill that way, and I think 

it creates some genuine confusion about what the bill does, but Mr. 

Griffith does helpfully start to put his finger on things by pointing 

us to page 3 in line 15 of the bill where you could at least begin 

to address some of these problems in overdrafting with the addition 

of the word ‘‘and.’’ However, I would like to note that this would 

still allow the exemption of pollution if an activity typically occurs 

in a rural area. As Mr. Waxman said, 70 percent of power plants 

do so. I don’t think that is what the committee intends. By the 

same token, it would allow the exemption of pollution if it is windblown. I hope that we can agree that all pollution is windblown, 

and we don’t want to eliminate Federal regulation by virtue of that 

fact. 

Section 3 really is the most problematic feature of the bill. I 

think my written testimony and Assistant Administrator 

McCarthy’s testimony covers that, so I am not going to repeat that 

now. But I do have to say that this bill does produce what appear 

to be unintended consequences that I think could be corrected but 

not based upon the existing structure of the bill. I notice that elsewhere in the House this week the Judiciary Committee is considering the REINS Act, which purports to address and rein in excessive delegation of Federal authority to Federal agencies, and yet 

again, paradoxically, H.R. 1633 engages in excessive delegation of 

sweeping and vague authorities to deregulate industrial pollution 

across America. I don’t think that is what the bill intends to do, 

and I would urge you not to pass H.R. 1633 in its present form. 

Thank you. 

[The prepared statement of Mr. Walke follows:] 

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Mr. WHITFIELD. Thank you. 

Dr. Wellenius, you are recognized for 5 minutes. 

STATEMENT OF GREGORY WELLENIUS 

Mr. WELLENIUS. Thank you, Mr. Chairman. Members of the committee, thank you for the opportunity to testify today. My name is 

Dr. Gregory Wellenius. I am Assistant Professor of Epidemiology at 

Brown University. 

I earned my doctorate in environmental health and epidemiology 

from the Harvard School of Public Health. I previously served on 

the faculty at Harvard Medical School. I have been conducting research on the health effects of air pollution for more than 10 years. 

I have authored or coauthored more than a dozen original studies 

in this area and contributed as an author for the EPA’s 2009 Integrated Science Assessment for Particulate Matter. My research has 

focused on the effects of ambient air pollutants on cardiovascular 

disease, and it is my pleasure to provide testimony in this area 

today. 

There is a broad consensus in the scientific and medical communities that ambient particles are harmful to human health. For example, after reviewing the scientific evidence, the American Heart 

Association recently stated that exposure to fine particles, or 

PM2.5, is ‘‘a modifiable factor that contributes to cardiovascular 

morbidity and mortality.’’ 

The external panel of independent scientists that make up the 

Clean Air Scientific Advisory Committee, or CASAC, and EPA scientists concluded that a causal relationship exists between ambient 

fine particles and both mortality and cardiovascular effects and a 

likely causal relationship between ambient fine particles and respiratory effects. This conclusion has been endorsed by a number of 

scientific organizations including the World Health Organization, 

the National Research Council, the American Medical Association, 

the American Lung Association, and the American Thoracic Society, to name a few. 

As has been pointed out, the coarse and fine fractions of particulate matter differ in their size, sources and composition. In my 

written testimony, I provide further details regarding the well-established health effects of ambient fine particles. While fewer studies have looked specifically at the health effects of coarse particles, 

the existing evidence suggests that these particles can also be 

harmful to people’s health. 

In the 2009 Integrated Science Assessment for Particulate Matter, CASAC and EPA scientists concluded that the available evidence is suggestive for a causal relationship between coarse particles and mortality, cardiovascular effects and respiratory effects. 

The available science indeed supports an association between 

coarse particles and cardiovascular hospital admissions. For example, a recent study in 112 U.S. cities found that coarse particles 

were linked with higher risk of premature death from all causes, 

stroke and respiratory causes, even after accounting for levels of 

fine particles. Taken together, the existing evidence suggests that 

exposure to higher levels of coarse particles may increase the risk 

of death, cardiovascular hospitalization and respiratory effects. 

328 

Now, most epidemiologic studies on coarse particles have been 

conducted in urban settings. However, agricultural dust can also be 

harmful to people. Field workers exposed to minimal dust from agricultural sources experience more acute and chronic bronchitis, 

chronic obstructive airway disease and interstitial lung disease. Agricultural workers exposed to organic dust have been found to have 

a higher risk of allergic reactions, asthma, hypersensitivity pneumonitis and organic dust toxic syndrome. A studying examining the 

lungs of California farm workers found that their bronchioles had 

accumulation of dust particles and thickening and inflammation in 

the respiratory tissues. 

Sandstorms and other dust events typically increase the concentration of coarse particles much more than fine particles. Studying these events provides information on the potential health effects of coarse particles of non-urban origin. For example, Asian 

dust storms in Taipei, Taiwan, have been associated with increased 

rates of hospital visits for ischemic heart disease such as heart attacks. Other studies have linked dust events in Spain and Cyprus 

with increased risk of hospitalization or death. These studies add 

to the evidence of health effects of coarse particles and highlight 

that even coarse particles from nonurban environments can have 

important health effects. 

In conclusion, Congress built into the Clean Air Act an orderly 

process for the regular review of the scientific evidence on health 

effects of air pollution. This process includes multiple rounds of scientific peer review including by CASAC and other scientists and 

the public. I strongly urge you to preserve the authority of the EPA 

to periodically review the available scientific evidence and when 

appropriate update the air quality standards including for PM10

and coarse particles. This process is essential if we are to adequately protect the public’s health. 

I thank you for your time and would be happy to answer any 

questions. 

[The prepared statement of Mr. Wellenius follows:] 

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Mr. WHITFIELD. Thank you very much for your testimony. 

I will recognize myself for 5 minutes of questions. Mr. Walke, you 

heard me in the very beginning talk about this concern about the 

lawsuits being filed and so forth, and has the Natural Resources 

Defense Council ever sued EPA over the Clean Air Act? 

Mr. WALKE. Yes, sir, Mr. Chairman, we have. 

Mr. WHITFIELD. Do you know how many times? 

Mr. WALKE. You probably do if you have researched the question. 

I have not, though, sir. 

Mr. WHITFIELD. Well, I haven’t either but—— 

Mr. WALKE. No, I don’t know. 

Mr. WHITFIELD. And have you all been reimbursed for legal fees? 

Mr. WALKE. When we win, yes. 

Mr. WHITFIELD. Would you provide us with the number of times 

that you all have filed suits against EPA and the number of dollar 

value of the reimbursement for the legal fees? 

Mr. WALKE. I will do so the best of my ability. NRDC was formed 

in 1970 or 1971, so—— 

Mr. WHITFIELD. Well, let us just say within the last 10 years. 

Mr. WALKE. OK. 

Mr. SHIMKUS. Mr. Chairman, will you yield? 

Mr. WHITFIELD. Yes. 

Mr. SHIMKUS. It would also be good to find out what was their 

compensation out of the judgment fund that paid their attorney 

fees. 

Mr. WHITFIELD. Yes, the amount of the legal fee reimbursed. It 

comes out of judgment fund, though, doesn’t it, or the agency 

funds? 

Mr. WALKE. Sure. I mean, Mr. Chairman, I would just say that 

the law only provides our ability to go to court and regain fees 

when the government is breaking the law. 

Mr. WHITFIELD. No, I understand. 

Mr. SHIMKUS. Mr. Chairman, I just think we should have those. 

For whatever reason, we want those dollar amounts. 

Mr. WHITFIELD. Yes. We won’t get into a discussion. 

Mr. RUSH. Mr. Chairman? 

Mr. WHITFIELD. Yes? 

Mr. RUSH. I would also like, if I might, ask the gentleman if he 

would include what his win-loss ratio is, the number of times he 

sued, the number of times he lost and the number of times he won 

against the EPA. 

Mr. WHITFIELD. You want to know how many he won and how 

many he lost? 

Mr. RUSH. Yes. 

Mr. WHITFIELD. He wants to know how many you have won and 

how many you have lost. 

OK. Anyway, so if you would—the number of lawsuits in the last 

10 years, the amount of money that you have been reimbursed in 

legal fees when you have won, and how many cases you consider 

you won and how many you consider you lost. 

Mr. WALKE. OK. It might take some time to do that, sir, so I will 

just ask your indulgence. 

Mr. WHITFIELD. Yes, sir. 

Mr. RUSH. Is it OK if we give him 5 years? 

342 

Mr. WHITFIELD. You and I may not be here in 5 years. Thank 

you so much. 

Mr. Foglesong, now, you represent the National Cattlemen’s Association. Is that correct? 

Mr. FOGLESONG. The National Cattlemen’s Beef Association, yes. 

Mr. WHITFIELD. And are there cattle producers that are struggling with meeting the current coarse particulate matter standard? 

Mr. FOGLESONG. You know, in particular, there are some of 

those, you know, in the Southwest. Arizona is a good example of 

that, you know, where they have got feed yards, and the expense 

that they incur to try to complex is just enough to break them. 

They just can’t keep it going. But I think—and that what sticks in 

your mind, but understand that it can happen anyplace in the 

country. We had a map up there earlier that shows those places 

that are at risk, but I am from Illinois and we get 40 inches of 

rainfall but I will guarantee you that last week I was in that position because it hasn’t rained there in 2 months and the wind was 

blowing and we are all doing work. So I think that is one of the 

things that is a challenge. Our outfit in Georgia, it was the same 

thing. We had the worst drought there in 100 years this spring. 

Driving up and down our country dirt roads, every one of them was 

out of compliance. So all across the country you run into that, yes, 

sir. 

Mr. WHITFIELD. And there was great concern about the strengthening of this emission standard on coarse particulate matter because that would have changed the standard around the country 

and then there would have been areas in nonattainment and then 

there would be more enforcement mechanisms, and Mr. Rogers, 

you have experienced that personally, it sounds like. Is that correct? 

Mr. ROGERS. Yes, sir, that is correct. We farm in Maricopa County in a nonattainment area. 

Mr. WHITFIELD. So what enforcement mechanisms must you comply with as a result of being in a nonattainment area in this coarse 

particulate matter issue? 

Mr. ROGERS. Agriculture in Maricopa County was deemed 

through modeling to be about 3 percent of the problem of the Maricopa County area, which is probably a 75-square-mile county. It is 

a very large county. We only have 15 counties in Arizona. And so 

we were deemed to be 3 percent. You know, you come to the table 

with EPA being the 500-pound gorilla because what they hold over 

the State’s head is the Federal tax dollars, the highway dollars 

coming back to the State, so there is motivation through your local 

government to come to the table and participate and so that is 

what we have done. We have had to come to the table and design 

a program with EPA looking over our shoulder to make sure that 

every step of the way they agree with what you are doing to put 

together your SIP. 

Mr. WHITFIELD. And could you just quickly go through a couple 

of—— 

Mr. ROGERS. Sure. We developed a best management practice 

program that is mandatory. Farmers do get to choose between 

practices under three different categories, diligent harvesting, cropland, non-cropland, so every part of my operation I have to be 

343 

doing something and so it could include watering roads, it could include parking your tractors during high wind events where the 

wind gets to 26 miles an hour, speed limits on your farm roads 

where you have to regulate your own roads that you are in control 

of, waiting until there is moisture in the soil before you do tillage, 

waiting for rain to bring that moisture, or if you choose to irrigate, 

that is your option as well, but there is probably 40 best management practices that we had to come up with to help agriculture 

come to the table, to keep EPA happy and to keep our State happy 

because at 3 percent of the problem, they determined that we need 

to participate. 

We do have a county just south of Phoenix, Pinal County, which 

has been recently designated as nonattainment. That is where the 

livestock operation is that we talked about before. That particular 

livestock operation has taken it upon themselves to figure out what 

they can do to get into attainment. It takes 4 gallons of water per 

day per cow to meet the standard, and it is going to be very costly 

for them to do that. 

Mr. WHITFIELD. Forty gallons per cow per day? 

Mr. ROGERS. Four gallons. 

Mr. WHITFIELD. Four? 

Mr. ROGERS. Four gallons, but it is a large operation so it is 

going to cost a lot of money, and with four gallons per day, they 

were able to bring that under control and so they are going to— 

as we move forward with bringing livestock into our program, they 

are actually working with EPA and the State and that will probably be a mandatory number. 

Mr. WHITFIELD. Mr. Rush, you are recognized for 5 minutes. 

Mr. RUSH. Mr. Walke, in your written testimony, you take issue 

with using the phrase ‘‘farm dust’’ as H.R. 1633 is named and say 

this bill is really an attempt to force EPA to ignore harmful soot 

pollution emitted overwhelmingly by industrial pollutants like coalburning power plants, incinerators, chemical plants and diesel vehicles. Can you explain why you view this bill as a cover for abolishing the review of health standards for industrial pollution? 

Mr. WALKE. Certainly, Mr. Rush. It is notable that the word 

‘‘farm dust’’ doesn’t actually appear in the bill other than its title. 

The operative legal term of the bill in its most harmful bill is in 

section 3 in the definition of nuisance dust, and it is simple so I 

will just tell you the highlights. Nuisance dust means particulate 

matter from activities typically conducted in rural areas or windblown dust. Now, I just selected out some of those from a string. 

You know, as I showed in my testimony, activities typically conducted in rural areas include power plants, incinerators and manufacturing facilities and diesel vehicles, and, you know, by this very 

short, crisp and overbroad definition, all of those activities will be 

defined as particulate matter that could not be regulated by the 

Federal Government if the States are doing so, and the States are 

doing so, so this bill would deregulate from Federal Clean Air Act 

authority those activities. That has sweeping, sweeping implications that certainly aren’t suggested by the farm dust title and 

don’t even appear to be intended by some of the members from 

their statements here this morning. 

Mr. RUSH. Thank you very much. 

344 

Mr. Chairman, earlier there was a line of questioning that I 

thought was quite interesting, and it covered areas of legal fees 

and the amount of money recouped through legal representation, 

and in fairness and in full disclosure, I want to ask the same question of all the members of the panel. Please, if you will, provide the 

lawsuits brought against the EPA by the American Farm Bureau 

Federation, the National Stone, Sand and Gravel Association and 

the National Cattlemen’s Beef Association, and the fees that were 

obtained as a result of those legal actions. And also, I understand 

that Mr. Blase is being paid by the Coarse Particulate Matter Coalition, and would you provide to the committee the full amount that 

you are being paid to represent them? 

Mr. Chairman, I think that that is for full disclosure, and would 

you please provide those amounts for the record? 

Mr. OLSON. [Presiding] Without objection, so ordered. 

Mr. FOGLESONG. Sir, point of clarification. Do you want to know 

also what we spent? 

Mr. RUSH. No, I want to know the fees that you were provided, 

and I think that would cover the same territory that was requested 

of Mr. Walke. We just want to make sure that there is full disclosure and there is fair disclosure in terms of fees that organizations 

are able to—or remunerations from the EPA and the matter of lawsuits. 

Mr. BURGESS. Will the gentleman yield? 

Mr. RUSH. I don’t know if I have any time. 

Mr. BURGESS. Well, I would be interested in what they spent. If 

we are going to compile that information, let us be complete. 

Mr. RUSH. Well—— 

Mr. BURGESS. I would be interested in what you spent. I will add 

that to Mr. Rush’s request. 

Mr. RUSH. And so we will also add that to Mr. Walke’s request, 

what is the amount that your organization spent, the amount that 

you spent in terms of court action. 

Mr. WALKE. On the litigation? 

Mr. RUSH. Yes, on the litigation. 

Mr. OLSON. Everybody follow that? Without objection, so ordered. 

Mr. RUSH. I yield back. 

Mr. OLSON. The gentleman’s time is expired, and the chair recognizes the gentleman from Illinois, Mr. Shimkus. 

Mr. SHIMKUS. Thank you. It is great to have the panel. 

Can anyone define for me what ‘‘at this time’’ means? Mr. 

Foglesong, do you know what ‘‘at this time’’ means? 

Mr. FOGLESONG. At this time. 

Mr. SHIMKUS. OK. I am making my point. The point is, when the 

Assistant Administrator was here, in her testimony she said—I 

read the letter and of course Administrator Jackson said ‘‘I am prepared to propose a retention with no revision of the current PM10

standard form when it is sent to OMB for interagency review,’’ and 

her response was, we are going to abide by this at this time. ‘‘At 

this time’’ means today, right? And there could be tomorrow would 

not be at this time. Tomorrow would be tomorrow. Isn’t that, for 

Mr. Foglesong and Mr. Rogers, Mr. Lien, isn’t that part of the risk, 

the uncertainty that you are dealing with? 

345 

Mr. ROGERS. That is completely part of the risk, and as the monitoring network is developed across this country where there may 

not be that intense monitoring network today, as those monitors 

are enhanced, that is where ‘‘at this time’’ comes into play. There 

may be a speed limit across this country but if there is not an officer there to pull you over, he doesn’t know if you went five over 

or not. It is a monitoring issue. 

Mr. SHIMKUS. And if you could pull up Mr. Blase’s map on the 

proposal? Half of the country under a proposed—that is additional 

risk to agricultural America. 

Everybody knows in this country jobs are impacted, and one of 

the major impacts is risk, is uncertainty. That is why we are doing 

this today, to at least give the agriculture sector some certainty. 

Now, Mr. Lien, you are from the sand and gravel. Two weeks 

ago, I read, you know, the only sector in this country that created 

jobs over the last quarter? You should. 

Mr. LIEN. I would say that—— 

Mr. SHIMKUS. It was the mining industry. 

Mr. LIEN. The mining industry. 

Mr. SHIMKUS. The mining industry was the only sector in this 

country that created jobs, and just yesterday, Caterpillar gave its 

quarterly report, and Caterpillar did well. You know what Caterpillar sells? Mining equipment. So there is a debate on rules and 

regs and the cost of doing business based upon uncertainty and job 

creation, and all this is about is providing certainty. I would agree 

with Mr. Hurt that we can— we are legislators. We sure can legislate when it has harm to job creation in parts of the country. If she 

would pull up my harvester cutting beans? Those are coarse particulates. They are probably bigger than the PM10. Does anyone know 

how far those coarse particulates travel? 

Mr. ROGERS. It depends on if there is wind activity or not, but 

those coarse particulates that you can see normally will settle back 

down within several hundred feet. 

Mr. SHIMKUS. And that is all part of the rural debate because 

there are not people around. In rural America, it is not like a city. 

It is not a metropolitan area. In my new Congressional district, 

parts of 33 counties, I think my biggest community is going to have 

33,000 people in it. It is one-third of the State of Illinois. So if we 

are farming in my district, which we do, and we are cutting beans, 

those coarse particulates are going to fall to the ground way before 

they reach any exposure, especially with the air conditioned cabs 

these guys have now, so even the person on the harvester is not 

going to be affected. 

Let me go to Mr. Walke real quick. Administrator Jackson in essence said that the PM10 standard really by this protects human 

health, the standard today. That is why she is not going to submit 

to OMB. Is that the NRDC’s position? 

Mr. WALKE. We are prepared to accept that when she proposes 

the rulemaking to not change the standard if—— 

Mr. SHIMKUS. So your testimony is that you will not sue if this 

continues to be promulgated and the Administration keeps this as 

the standard? 

Mr. WALKE. Mr. Shimkus, that is the first time that word has 

come out, and it was your mouth, not mine. 

346 

Mr. SHIMKUS. At this time? 

Mr. WALKE. At this time, today, now, I am not going to discuss 

litigation before I—— 

Mr. SHIMKUS. So you might bring this. 

Mr. WALKE. Mr. Shimkus, if you want—if this is going to be 

a—— 

Mr. SHIMKUS. No, I am just asking—— 

Mr. WALKE. Let us talk about speculation—— 

Mr. SHIMKUS. Reclaiming my time. Mr. Walke, you are very cavalier with the lives of rural America and agricultural America, saying in respect to the testimony received that the PM10 standard affects their jobs and their economy so I am just addressing the point 

that the NRDC is not on record as saying whether they will or will 

not—— 

Mr. WALKE. If I may, Mr. Shimkus, this bill removes Federal 

Clean Air Act authority—— 

Mr. SHIMKUS. And I yield back my time. 

Mr. WALKE [continuing]. Over 80 percent of America. Eighty percent of America has Federal—— 

Mr. SHIMKUS. Mr. Chairman, I yield back my time. 

Mr. WHITFIELD. The gentleman yields back his time. 

At this time I recognize the—— 

Mr. RUSH. Mr. Chairman, Mr. Chairman, Mr. Chairman. 

Mr. WHITFIELD. For what purpose does Mr. Rush—— 

Mr. RUSH. Regular order, Mr. Chairman. 

Mr. WHITFIELD. Regular order? 

Mr. RUSH. Regular order. Mr. Shimkus asked the gentleman a 

question. 

Mr. SHIMKUS. I did not, Mr. Rush. 

Mr. RUSH. Will the reporter please read the last question that 

Mr. Shimkus asked? 

Mr. WHITFIELD. Can we just stipulate that Mr. Shimkus did ask 

a question—— 

Mr. RUSH. But he—— 

Mr. WHITFIELD [continuing]. His time expired and then he decided he didn’t want to—— 

Mr. RUSH. No. He cut him off in the middle of—— 

Mr. SHIMKUS. No, that is not true. 

Mr. RUSH. He cut him off in the middle of the answer. 

Mr. SHIMKUS. That is not true. 

Mr. RUSH. Will you please give the witness the courtesy of answering the question? We do that as a formality in this subcommittee. 

Mr. BURGESS. Mr. Chairman, if you will yield to me, I will yield 

the witness 30 seconds to respond. 

Mr. WHITFIELD. Well, Dr. Burgess, I am going to recognize you 

for 5 minutes for questions and you can do what you want to do 

with it. 

Mr. BURGESS. The committee has a long history of treating its 

witnesses well. I want to recognize the gentleman for 30 seconds 

to respond. 

Mr. WALKE. Dr. Burgess, thank you for your professional courtesy. I will only take 30 seconds of your 5 minutes. 

347 

The point I wanted to make in responding to Mr. Shimkus was 

that in contrast to imaginary problems or imaginary lawsuits that 

no one has any intention of bringing, this bill, if adopted into law, 

would remove Federal Clean Air Act authority over 80 percent of 

America, which is defined as rural by any number of government 

metrics. That has nothing to do with farm dust but it does have 

to do with deregulating industrial pollution from power plants that 

causes premature deaths and heart attacks, and that is the only 

thing I was trying to say. 

Mr. BURGESS. OK. Reclaiming my time. 

Can we go back to that map that had half the country in blue? 

Can we recall that slide? You know, I listened to the testimony of 

Dr. Wellenius, and in your written testimony, you talked about 

most existing epidemiologic studies in coarse particles have been 

conducted in urban settings. Most of the urban settings actually, 

though are removed from that map that is covered by the footprint 

of the coloration. Is that correct? 

Mr. WELLENIUS. So we do the studies where we have monitor 

data existing primarily and the EPA sites those monitors. From the 

research side, we don’t have a say as to where those monitors are 

sited. So there are parts of the country that—— 

Mr. BURGESS. The real hot spots for cardiovascular disease, lung 

disease, interstitial lung disease, industrial pneumoconiosis, if you 

were to color those in on the maps, they likely would be for the 

most part outside the blue footprint. Is that not correct? 

Mr. WELLENIUS. So there are several areas that are in blue there 

that do have high air pollution. There are parts of Texas, parts of 

Arizona, parts of southern California that do have high air pollution. 

Mr. BURGESS. Texas is a huge State. Houston has a problem. It 

is miniscule. It can be ignored most of the time as we in the DallasFort Worth area know well. 

But I just would make the point, is there a cost-benefit analysis 

you have done? I mean, you want to implement something on vast 

swaths of relatively low density population. Have you done a costbenefit analysis on how this would affect people’s livelihoods and 

the status of people overall, the overall health of people, and how 

can we be sure sitting here on this committee that you are not double counting some of these people that are saved in your studies? 

How can we be sure you are not double counting those individuals? 

Mr. WELLENIUS. Right. So—— 

Mr. BURGESS. So there are people that might have been saved 

anyway by the effects of the Clean Air Act where this additional 

regulation would have only miniscule positive or negative effect. 

Mr. WELLENIUS. Yes. Thank you. You asked me first the question 

of have I done a cost-benefit analysis, and the response is, I have 

not. The scientific committee is large and there are those of us that 

deal with the health effects of air pollution, doing the health side, 

and there are people in the cost-benefit business that certainly take 

those effects that we estimate and also incorporate the costs of regulation and the costs of lives averted or the hospitalizations averted. I am not specifically in that area, so no, I have not conducted 

that cost-benefit analysis. 

348 

Mr. BURGESS. OK, so we don’t know is the answer to that question. 

Now, Administrator McCarthy had a rather large compendium of 

documents next to her as she testified, and this is described as the 

Integrated Science Assessment for Particulate Matter. Are you familiar with this document? 

Mr. WELLENIUS. Yes, I am. 

Mr. BURGESS. My read of at least a portion of this is that there 

is insufficient evidence to determine that coarse particulate matter 

causes health effects. That is written on page 219, third heading, 

maybe six lines from the end of the page: ‘‘To date, a sufficient 

amount of evidence does not exist in order to draw conclusions regarding the health effects and outcomes associated with long-term 

exposure to PM10.’’ Is that accurate? 

Mr. WELLENIUS. That is accurate. For long-term effects of coarse 

particles, there is next to no evidence in support of long-term 

health effects. 

Mr. BURGESS. Well, and certainly we will stipulate your credentials and the credentials of everyone at the witness table today, but 

one of the tasks that we face is how do you approach regulation 

in a way that does not further cripple the economy, allows witnesses at the other end of the table to continue their livelihoods 

and to support their employees and their families. You know, forgive me, it looks like we are going on some pretty thin evidence 

here with some fairly sweeping regulations, and I guess that is 

overall what the concern here is of the committee today, and I 

think the reason that Representative Noem brought the legislation 

forward. 

I thank the gentleman for his indulgence and I will yield back 

the balance of my time. 

Mr. WHITFIELD. Thank you, Dr. Burgess. 

Mr. WELLENIUS. Mr. Chairman? 

Mr. WHITFIELD. Yes? 

Mr. WELLENIUS. Thank you. So I agree, you do have an enviable 

task and one that I am happy you are doing rather than me in 

terms of balancing the public health benefit versus how to impose 

those regulations in a sensible manner. You focused on the longterm effects of long-term exposure to coarse particulate matter. 

There is evidence on the short-term exposure that that is associated with increased hospitalizations, increased premature death. 

We need more research for sure but the current evidence as the Integrated Science Assessment concludes is suggestive of causal association. Thank you. 

Mr. WHITFIELD. Mr. Olson, you are recognized for 5 minutes. 

Mr. OLSON. I thank the chair. More importantly, I thank the witnesses for your time and expertise today. And I am from southeast 

Texas, Sugar Land, Texas. There is no equal. As you guys know, 

Texas, all of Texas has suffered an historic drought, excessive heat, 

over 100 degrees for almost the entire month of August in Houston, 

which is unprecedented, and wildfires all across our State, and 

ranchers and farmers have been disproportionately hit by these 

disasters. And the theme of this series of hearings that this subcommittee and the full committee has had is about the uncertainty 

349 

created by the administration’s regulatory agenda. I want to talk 

a little bit about that. 

I mean, there has been some testimony in the prior panel and 

even on this panel about uncertainty and the fact that, you know, 

EPA’s promise not to revise the standards for 5 years provides 

more certainly than a law, H.R. 1633, would provide, and I am curious if some of the panelists honestly believe that the Executive 

Branch agency action provides more certainty than a law passed 

under our Constitution by Congress. I am just asking for a simple 

yes or no answer. Mr. Foglesong? 

Mr. FOGLESONG. I don’t believe that is exactly how I would put 

that out. We look to you all because we vote you into Congress and 

we expect you to look out for us. 

Mr. OLSON. It sounds like Congress over the Executive Branch 

agency. 

Mr. FOGLESONG. Absolutely. 

Mr. OLSON. Yes, sir. 

Mr. ROGERS. I would agree. 

Mr. OLSON. Yes, sir. Mr. Lien? 

Mr. LIEN. I would agree. 

Mr. OLSON. Thank you, sir. 

Mr. BLASE. I would agree. 

Mr. VON WACHTER. Sir, if your question is whether regulation reduces uncertainty, that is true. Whether uncertainty has an impact 

on economic activity, that is from a scientific point of view an open 

question. 

Mr. OLSON. My question is, what provides more uncertainty, Executive Branch agency regulations or regulations by laws passed by 

Congress? I mean, which one provides more certainty? What is the 

more difficult process, going through the Constitution or going 

through the Executive Branch? I think the answer is the Constitution. Wouldn’t you agree? Yes or no. 

Mr. VON WACHTER. I think you are better qualified than me to 

answer that question. 

Mr. OLSON. You are an American. You have an opinion. 

Mr. Walke? 

Mr. WALKE. You know, as a matter of law, they are equally lawful. If the legislative period of relief is short like this one and the 

administrative period is longer, than it is the longer period. 

Mr. OLSON. OK. And Dr. Wellenius? 

Mr. WELLENIUS. I have no comment. 

Mr. OLSON. No comment whatsoever? OK. 

My final round of questions is for Mr. Blase. Mr. Blase, can you 

give a brief history of the last round of the PM revision and this 

one, and specifically, is it possible for us to be in the exact same 

position in 5 years with farmers, ranchers and other rural businesses if the EPA chooses to lower the standard on dust? 

Mr. BLASE. Oh, yes, absolutely. That is what happened the last 

time. It is kind of a complicated thing and I won’t go into all the 

details, but there has been a debate over—you know, the current 

standard for PM10 includes PM2.5. It includes fine and coarse. So 

there has been a debate over whether the fine should just be 

kicked out and the coarse PM standard should only be the top 2.5 

to 10. I think my personal view is, that is probably what is going 

350 

to happen in the next review. But in the last review, what happened was, EPA took a stab at doing just that and regulating true 

coarse PM. The problem with that was the concentration limit was 

way lower than most of us thought we could meet. Therefore, there 

was an exemption proposed for agriculture and mining activities. 

In the end, EPA threw up its hands and said we don’t know what 

the numbers should be, we don’t know what the exemptions should 

be so we are going to retain the current standard. But yes, the proposal—if the point is the final rule can look quite different from the 

proposal, the last reviews proves that. 

Mr. OLSON. One final question about the rulemaking. I have introduced a bill, H.R. 1341, which is called the Establishing Public 

Accountability Act. It is very simple. It just requires the EPA to do 

some study of the impact of jobs on regulations and rulemaking, 

the proposed changes, and it requires them to do this before the 

public comment period so the public will have the opportunity to 

review what EPA is proposing. And so I just want to ask all six 

of you again, seven actually, just yes or no, do you think that bill 

will be something you support? Mr. Foglesong? 

Mr. FOGLESONG. Sure. 

Mr. ROGERS. Yes. 

Mr. LIEN. Yes. 

Mr. BLASE. Yes. 

Mr. VON WACHTER. That was a bit quick for me, but it seems 

that if EPA is supposed to look at both the costs and benefits of 

their regulation, that that seems a good idea. 

Mr. OLSON. I will put you down as yes. 

Mr. Walke? 

Mr. WALKE. Is that the Regulatory Accountability Act, Congressman? 

Mr. OLSON. Establishing Public Accountability, H.R. 1341. I can 

get you a copy of it. But it is very simple, just the public has the 

right to know, you know, whether or not this regulation, this new 

rulemaking, what the impact is going to be on American jobs. Either is going to create jobs or kill jobs, and that is what we need 

to address here. I think that is the biggest challenge our country 

is facing is the lack of jobs in this recession. 

Mr. WALKE. Well, I would love to read the bill before answering 

that question, if I might. 

Mr. OLSON. We will hook you up. 

And finally, Dr. Wellenius. 

Mr. WELLENIUS. Again, I am here to comment on the science and 

the health effects, not on the policy. 

Mr. OLSON. Thank you, sir. 

And that is. I yield back my time. 

Mr. WHITFIELD. Thank you, Mr. Olson. 

Mr. Pompeo, you are recognized for 5 minutes. 

Mr. POMPEO. Thank you, Mr. Chairman. 

Mr. Blase, Mr. Walke said that no one had contradicted sort of 

the legal statements that Ms. McCarthy set out, and you are counsel, so I thought maybe you could help me. He also made the statement that 80 percent of Federal regulatory would be stripped away 

by this bill. Would you care to comment on what you think this legVerDate Aug 31 2005 09:14 Oct 17, 2012 Jkt 037690 PO 00000 Frm 00356 Fmt 6633 Sfmt 6633 F:\112-09~1\112-99~1 WAYNE
351 

islation would do with respect to the scope of the EPA’s ability to 

regulate? 

Mr. BLASE. Yes, I think it is a carve-out for crustal coarse particulate matter and nothing else is involved. I mean, power plants, 

tailpipe emissions, it is all fine PM. I don’t believe these changes 

are necessary. People think changes are necessity to this legislation 

to exclude fine PM. My group would probably support that. But as 

I read it right now, I think it is confined to coarse crustal emissions, which is what is supported by the science and as it should 

be. 

Mr. POMPEO. So your legal analysis is very different from Mr. 

Markey’s comments, Ms. McCarthy’s statements and Mr. Walke’s 

testimony. 

Mr. BLASE. Very different, yes, sir. 

Mr. POMPEO. So I have power plants not excluded, school bus 

tailpipes, no impacts. This notion of because they are windblown 

they will all get caught up in this and we won’t be able to regulate 

them so they will become law. Nonsense. 

Mr. BLASE. No, I don’t believe it covers those at all. 

Mr. POMPEO. OK. Great. I yield back the balance of my time. 

Mr. WHITFIELD. Thank you, Mr. Pompeo. 

Mr. Griffith, you are recognized for 5 minutes. 

Mr. GRIFFITH. Dr. von Wachter, your testimony mentioned that 

those who lose their job can experience health problems that can 

lead to significant reductions in life expectancy. I have been concerned about a number of EPA regulations related to similar things 

like what happens when you raise the cost of electricity and the 

people my district can’t afford to heat their homes. So I would just 

ask you in regard to the job loss and then significant reductions in 

life expectancy, can you explain that and tell me what you mean 

by that, and can it actually shorten a worker’s life? 

Mr. VON WACHTER. Absolutely. I would be happy to clarify. So 

what we have done, we have looked at workers displaced in large 

downsizing Pennsylvania in the early 1980s, and these were workers at, you know, relatively large, stable firms and stable jobs and 

they had very long-lasting earnings losses, and over the next 20 

years they also had increases in mortality rates, and those who had 

the larger earnings losses had the higher increases in mortality 

rates, and if you add those 20 years up and assumes that the mortality effect lasts until the end of our lives, which seems to be a 

fine assumption because the effects are very stable, then you get 

to 1.5-year losses in life expectancy. So this one-time shock, what 

seems to be a shock to earnings but also lifestyle, can have these 

long-term effects. Now, Pennsylvania in the early 1980s is a very 

hard-hit State with the reduction in steel and mining at that time, 

so I would characterize that as worst-case scenario. 

Mr. GRIFFITH. So what you are saying is, if we are going to study 

the health impacts of regulations, we ought to also look at the unintended consequences if it does have a downturn in jobs that that 

could actually negative impact the health of workers and of a particular community. 

Mr. VON WACHTER. Oh, absolutely. So regulations affecting certain businesses certainly could lead to job displacement that has 

been shown to lead to job displacement and this displacement takes 

352 

place in a very depressed economic environment, that they could 

have large costs with the affected workers in terms of earnings but 

also other outcomes. 

Mr. WHITFIELD. Mr. Blase, did you want to respond? 

Mr. BLASE. Yes, I have a brief response to that. Our coalition has 

spent some time looking at what is a great developing body of scientific literature that suggests that unemployment itself causes adverse health effects, which I don’t think takes an epidemiology 

study to show for most of us. However, we have pressed that point 

with the agency but have been told repeatedly that they have no 

legal authority to consider that aspect. So we will be making the 

point in our comments on the upcoming proposal and in other forums, but as of now, EPA is telling us, you know, the health effects 

of unemployment cannot be considered in this equation. 

Mr. GRIFFITH. And I know you don’t have any study on it but I 

think that plays into my fear that when we raise the cost of goods 

and services, particularly goods—again, I get back to heating but 

also we are talking about these things that could raise the cost of 

food products. That makes it particularly hard on the working poor 

or the unemployed, and that too would by common sense seem to 

have a health impact. Wouldn’t you agree? 

Mr. BLASE. Yes, I would. 

Mr. GRIFFITH. I thank you very much for being here and all your 

testimony, and I appreciate, Mr. Walke, there may be a way to fix 

that concern of us although based on the definitions, I recognize 

that it may not need fixing. That being said, Mr. Chairman, I yield 

back my time. 

Mr. WHITFIELD. The gentleman yields back. 

Mr. Rush, do you seek recognition? 

Mr. RUSH. Mr. von Wachter and Mr. Blase kind of touched on 

something I am interested in. You said unemployment has health 

consequences for the unemployed. Is that correct? 

Mr. VON WACHTER. So what we can establish is that the job loss 

has an effect on health. 

Mr. RUSH. On health. 

Mr. VON WACHTER. Establishing that unemployment has an effect is very difficult, because once you lose your job being unemployed is partly a choice of the worker, so it is not clear what is 

cause and effect at that point, but job losses have been shown to 

have an effect on health in the short and long run. It is possible—— 

Mr. RUSH. Did your study include the chronically unemployed 

and the underemployed? 

Mr. VON WACHTER. As I said, it is difficult to establish those effects for those who are chronically unemployed or currently underemployed just from a statistical point of view. We don’t know what 

the right comparison group is. Now, presumably, from what we 

know, these people are unlikely to do better but one has to be very 

careful because unemployment is itself an outcome. For example, 

a sick worker might become unemployed and you don’t want to conclude that unemployment makes you sick, but if you are displaced 

from a large downsizing, presumably you were a good worker and 

that being displaced from the downsizing doesn’t make you sick, so 

that is a statement about causality that is easier to back up. 

353 

Mr. RUSH. I yield back, Mr. Chairman. 

Mr. WHITFIELD. Thank you, Mr. Rush, and thank all of you for 

your time and giving us your entire testimony as well as your oral 

testimony. We look forward to working with all of you as we move 

forward, and thank you very much for attending, and with that, 

the hearing is concluded and the record will remain open for 10 

days for any additional materials. Thank you. 

[Whereupon, at 1:35 p.m., the subcommittee was adjourned.] 

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