Dust Up About Dust

A federal regulatory proposal, that is being “fast tracked” to adoption, poses a new threat to the survivability of businesses in Montana, most especially agriculture, according to the Western Business Roundtable (WBRT). The new regulations will reduce the allowable level of dust particles in the air to one-tenth current standards – levels lower than those normally recorded in natural areas, such as Yellowstone National Park.

If the regulations being proposed by the federal Environmental Protection Agency (EPA) are implemented, “It would bring economic development and growth to a halt,” said Jim Sims, President and CEO of WBRT, a coalition of companies and industry associations throughout the western states focused on encouraging investment, growth, and job creation in all economic sectors.

The proposed regulation is based on a “flawed” study, according to Sims, one that broadens the definition of what is considered dust and raises the specter of health concerns. Since health is ostensibly at issue, regulatory solutions are considered “absolute” – in other words, economic impacts or technical feasibilities are not allowed to be considered in deciding whether a regulation should be adopted.

 The regulations could have a strong impact on a wide variety of industry, most particularly upon agriculture and cattle producers, said Sims, adding that it will take a concerted effort on the part of all industry throughout the western states to mitigate the proposal. The issue of dust is not as significant to less arid and windy eastern states.

It is expected that EPA will propose lowering the standard from 150 micrograms per cubic meter to 12-15 micrograms per cubic meter, in its draft Policy Assessment to be issued in December. The document is to be reviewed in January and finally assessed in February, with the rule to be issued in July.

Even at 150 micrograms the standards have been difficult for agriculture and mining to meet, said Denise Kennedy, Holland and Hart LLP, who has worked on “fugitive dust” issues for 20 years. “We don’t even believe that the 150 microgram limit is supported by adequate studies. EPA, itself, has said it was inconclusive,” said Kennedy.

EPA first imposed a standard on “coarse” particulate matter in 2006, based on health studies which the agency then said were “inconclusive.” But, said Kennedy, EPA concluded that “Since the studies did not clearly show that there was no harm from dust, it should regulate dust to be cautious.”

The agency is only calling “suggestive” the results of another study released in June, upon which they are basing their proposal to lower standards to one-tenth of current standards.

The confusion stems from the fact that the studies do not adequately differentiate between two separate kinds of particulate matter – “coarse” and “fine.” “Fine” particulates, usually smaller, are usually more toxic, coming from combustion and things like cigarette smoke and smokestack emissions. “Coarse” particulates are mechanically derived, such as dust from a pickup truck on a dirt road.

The level of hospital admissions correlated with dust particulate levels has been the evidence in the studies used to conclude that the dust impacts health, but there has been no effort to determine what kind of dust – fine or coarse – are responsible.

“The health evidence showing adverse health effects from fine PM (particulate matter) is unequivocal and is a more likely cause of the observed health effects,” said Kennedy.

Experts have also pointed out other flaws in the way studies have been conducted, including the lack of direct monitoring, drawing instead upon county-wide averages for data upon which they base conclusions. The studies do not account for other pollutants that could impact outcomes, and they include gaseous particulates as dust.

In addition, health officials have said that the “observed health effects are not statistically significant.”

“The problem with EPA relying on flawed studies,” said Kennedy, “is that EPA cannot consider economic impacts in setting the NAAQS (National Ambient Air Quality Standard).” “If the health evidence justifies a low standard, it is irrelevant that such a standard could put entire industries, even regions of the country, out of business.”

What this means is the possibility of many “no plough” days for farmers and ranchers in Montana.

Kennedy explained that if an area is designated “nonattainment” for coarse particulates, the state must then submit a plan to EPA detailing how it intends to ensure that the area will meet the standard. The state can set regulations that limit operations on windy days. It can require no ‘till days for agriculture. It must adopt regulations that will ensure that existing sources meet the standard even if it requires cutbacks in existing operations.

Expansions of existing facility or new sources may be prohibited unless another source of coarse particulates stops operating and their emission credits can be used by the new source. It is very difficult to permit or expand operations in a nonattainment area, but the NAAQS are not limited to operations that need permits – they apply to all sources.

Kennedy said that once these measures begin to be imposed, it is too late to challenge the underlying science or basis for the standard.