By DAVE BLOWER JR.
Farm World Editor

WASHINGTON, D.C. — The U.S. Court of Appeals for the District of Columbia Circuit in Washington on Feb. 24 denied a petition for review of the Environmen-tal Protection Agency’s (EPA) rule that regulates dust under the Clean Air Act.

The National Pork Producers Council (NPPC) asked the Court to review EPA’s decision to regulate emissions of coarse particulate matter (PM), or dust, in rural areas. The National Cattlemen’s Beef Assoc. (NCBA) and other groups were also involved in this petition.
Leaders from both the NPPC and NCBA were frustrated with the Court’s decision.

“We are very disappointed with the Court’s decision,” NCBA Chief Environmental Counsel Tamara Thies said. “There is no scientific evidence that agriculture dust causes adverse health effects, and its regulation under the Clean Air Act is completely unjustified.”
Under the regulations, livestock farms could be treated as stationary air emissions sources and be required to obtain emissions permits under federal and state laws.

As a result, pork producers could face monitoring for particulate matter such as dust from dirt roads and fields and for chemicals, including ammonia, that can form particulate matter.

“This is a bad decision that will have a profound and long-lasting impact on the struggling American economy,” said Michael Formica, NPPC’s chief environmental counsel. “Farmers, business owners, workers and consumers struggling to put food on the table will be harmed by the court’s imprudent decision to use the ‘precautionary principle’ in determining the need for a particular government regulation.”

EPA released a final rule on regulating air particles under the Clean Air Act in October 2006. The rule says states should focus on regulating dust in urban areas instead of rural areas because of a lack of scientific data on health or environmental affects of agriculture dust.

The EPA didn’t exempt farm dust from regulation. NCBA filed an appeal. Oral arguments were Sept. 15, 2008.

The NPPC argued that while EPA identified problems with coarse PM in urban areas – where it is mostly the byproduct of engine combustion – it failed to show any health effects associated with rural dust, which comes mostly from naturally occurring organic materials such as plants, sand and soil. While recognizing the differences between urban and rural PM sources, EPA still decided to regulate farms for coarse PM. A 2002 National Academy of Sciences report said there were no scientifically credible methods for estimating emissions from animal feeding operations.

Still, the appeals court accepted EPA’s decision as “reasonable.” In rejecting arguments from NPPC and NCBA, the court adopted the so-called precautionary principle, placing the burden on the livestock industry to prove that its operations are not harming the public or the environment. The Court said, “In assessing the scientific evidence, the (livestock organizations) have mistakenly equated an absence of certainty about dangerousness with the existence of certainty about safety.”

Prior to this decision, EPA had the burden of showing there was harm to human health and the environment.

“EPA issued the revised air-quality regulations despite acknowledging that it lacks any science to support imposing them on livestock production operations, and that apparently was okay with the court,” said NPPC Environment Committee Chairman Randy Spronk, a pork producer from Edgerton, Minn. “More troubling, the court is requiring that we prove a negative.”