December 12, 2019
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Politicians kick EPA over dust rule that doesn’t exist

WASHINGTON — Impenetrable gridlock has forced Washington into an era of government-by-talking-point, and earlier this year Republicans found what they saw as the ideal talking point to illustrate a federal bureaucracy gone batty.

The Environmental Protection Agency, they warned, was trying to regulate something only God could control: the dust in the wind.

“Now, here comes my favorite of the crazy regulatory acts. The EPA is now proposing rules to regulate dust,” Rep. John Carter, R-Texas, said on the House floor. He said Texas was full of dusty roads: “The EPA is now saying you can be fined for driving home every night on your gravel road.”

There was just one flaw in this argument. It was not true.

The EPA’s new dust rule did not exist. It never did.

Still, the specter of this rule has spurred three bills to prevent it, one of which will be voted on Thursday in a House subcommittee. It sparked a late-night battle on the Senate floor. GOP presidential candidate Herman Cain cited it in a debate as a reason to eliminate the EPA.

The hubbub over this phantom rule, surely one of the most controversial regulations that never was, involved a slow-moving federal agency and a Republican Party with the EPA in its crosshairs.

“I do believe that the EPA does have the ability to change its mind,” said Rep. Kristi Noem, R-S.D., sponsor of the bill to be voted on Thursday. The EPA has now confirmed that it does not intend to strengthen standards on farm dust. But Noem is still pushing a bill to go further and weaken the EPA’s power to set these rules in the future.

“This EPA has been very hard on business in this country, and this EPA has been very hard on agriculture,” Noem said. “I think it’s time we pushed back.”

Farm dust, the stuff at the center of this story, contains such things as windblown dirt, bits of last year’s cornstalks and manure dried to powder. It is an ancient fact of farm life.

By the EPA’s rules, it is also pollution.

The EPA lumps it in with soot from power plants, as “coarse particle pollution.” The agency limits how much of this can be in the air, since these particles can cause heart and lung damage.

Just two states, Arizona and California, require some farmers to take dust-control measures: Together, their rules affect more than 7,800 farms. But last fall, an EPA advisory panel raised worries that more farmers could be affected. It recommended that the EPA make the current standards more strict, potentially bringing crackdowns elsewhere.

And so the dust fight began.

To actually change the rules for dust on farms, the EPA would have to formally propose a new rule. And in March, EPA Administrator Lisa Jackson said she was unlikely to do that.

“We have no plans to do so,” Jackson said. But she couldn’t guarantee it. Jackson said she was still required to spend several more months in a formal review before offering ironclad assurances that farmers would not face new rules.

That wasn’t enough. In April, Noem introduced her bill, and gathered 112 co-sponsors, including a handful of farm-state Democrats. A Senate bill gathered 26 co-sponsors, including two Democrats facing tough reelection fights in 2012.

For Republicans, the issue emerged at a good time. The GOP-led House has passed a spate of bills intended to delay or alter new rules set by the EPA under President Obama. The subjects range from emissions from cement plants to water running off of farms and mine sites.

This agenda was supported by many business and farm groups, who said surveys showed many small businesses felt overly burdened by new rules and costs from the EPA.

“You’ve got an agency that has a far greater economic impact, by region, by size, by sector, on the overall economy than any other agency,” said Bruce Josten of the U.S. Chamber of Commerce.

For Republicans the EPA’s new dust rule was an ideal talking point for this agenda. Even though the EPA had still not proposed any new EPA dust rule.

“We’ll stop excessive federal regulations that inhibit jobs in areas as varied as cement and farm dust,” House Speaker John Boehner, R-Ohio, told the Economic Club of Washington in September. Boehner’s deputy, House Majority Leader Eric Cantor, R-Va., wrote an op-ed in The Washington Post decrying “EPA’s proposed regulations” on subjects including farm dust.

On the House floor, other legislators sketched out an even more detailed picture.

“Say Bessie the cow kicks up too much dust running over to your pickup truck at feeding time,” warned Rep. Ted Poe, R-Texas. “The EPA is going to fine you for Bessie’s misconduct.”

Spokespersons for Boehner, Poe and Carter, the congressman who had sketched out worries about gravel roads, say all their bosses knew there was no actual proposed rule. They were speaking hypothetically, the spokespersons said, about the threat of a possible rule. Spokespersons for Cantor did not offer an explanation of his words.

As the year went on, the nonexistent rule also turned up in the Republican presidential race.

“The EPA has gone wild,” Cain said in a GOP debate in September. “The fact that they have a regulation that goes into effect Jan. 1, 2012, to regulate dust says that they’ve gone too far.”

In a written statement, Jackson, the EPA administrator, defended her agency’s work as necessary to protect public health.

“Some in Washington are pushing misinformation about the cost and benefits of environmental protection,” she said in a statement. “But the truth is EPA works closely with a variety of stakeholders, including industry, to develop commonsense standards.”

But on Capitol Hill this year, Jackson would not give Republicans the answer they were looking for: no dust rule, never, guaranteed. She said she couldn’t give a definitive answer until a months-long administrative process was finished.

“We’re concerned about your health, but we also are pragmatic and practical people,” Jackson said in one hearing, addressing herself to the people of rural America. “And our standards and proposal will reflect that.”

It still wasn’t enough. In early October, Republicans demanded a vote on farm dust rules in the Senate. That helped set off a fight that Senate Majority Leader Harry Reid, D-Nev., settled only with a dramatic procedural move late at night.

Finally, on Oct. 14, Jackson made it official. In a letter to senators, Jackson said the standards on coarse particle pollution would not change.

But the fight goes on. Last week, a House subcommittee considered Noem’s bill, which the EPA says could actually exempt a range of rural polluters from regulations, including power plants and factories.

At one point, Rep. Edward Markey, D-Mass., tried to ridicule the bill by asking EPA official Gina McCarthy if she could guarantee the agency would not regulate fairy dust or pixie dust. Even then, the EPA would not give an immediate answer.

“After we look at the complete scientific review, yes,” McCarthy said.

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