‘Sleeper issue’ threatens agriculture, industry critics say

By MATEUSZ PERKOWSKI

Capital Press

The U.S. Environmental Protection Agency is on a fast track to develop new air quality standards that could lead to more stringent regulation of dust as a pollutant, according to legal experts.

“It is irrelevant (to EPA rules) that such standards could put entire industries, even parts of the country, out of business,” said Denise Kennedy, a natural resource attorney with the Holland & Hart law firm in Denver.

The regulations could be devastating to agricultural operations, which tend to kick up a lot of dust in the arid West, said Tamara Thies, an attorney for the National Cattlemen’s Beef Association.

“The ability of cattle operations to meet these standards would be very tough, to say the least,” Thies said during a recent conference call organized by the Western Business Roundtable industry group.

The EPA’s current air quality standards set the allowable level for coarse particulate matter, or dust, at 150 micrograms per cubic meter, which is already difficult for many Western businesses to meet, Kennedy said.

In reevaluating its standards, the agency is relying on studies that indicate the standard for dust should be as low as 12 to 15 micrograms per cubic meter — a standard roughly 90 percent stricter, she said.

The agency is currently reviewing studies that will guide the standard-setting process, and industry groups are aiming to show the EPA how this data is flawed, Kennedy said.

“Time is of the essence, given EPA’s fast track,” she said.

Kennedy said she expects the agency to draw up conclusions by February 2010 and to propose regulations by July 2010, with final rules being enacted in 2011.

If a region is found to exceed the new standards, state governments will be expected to find ways to get back into compliance, which may involve temporary prohibitions on plowing or disturbing the soil surface, she said.

Currently, about 40 counties — all in the West — are considered serious or moderate “non-attainment areas” for EPA’s coarse particulate air standards, according to the agency.

The agency does have an “exceptional events” rule which exempts areas from meeting these standards during certain weather conditions, but those conditions cannot be regularly occurring, Kennedy said.

Agriculture groups challenged the EPA’s authority to regulate dust in court, but a federal appellate court rejected their arguments earlier this year.

The industry must be involved in the earliest stages of the regulatory process to prevent a draconian outcome, Thies said. “It is one of those sleeper issues.”