"
Johnston,
A.
Todd"
<
ajohnston@
nma.
org>

07/
19/
2006
10:
20
AM
To
Jason
Burnett/
DC/
USEPA/
US@
EPA
cc
Subject
Coarse
PM
Exclusion
­
States
Ability
to
Regulate
Dust
ISSUE:
Would
the
Proposed
Exclusions
of
Coarse
Particulate
Matter
(
1)
"
dominated
by
rural
windblown
dust
and
soils
and
PM
generated
by
agricultural
and
mining
sources"
and
(
2)
from
"
agricultural
sources,
mining
sources
and
other
similar
sources"
prevent
states
or
local
governments
from
imposing
reasonable
controls
on
fugitive
dusts
in
non­
urban
areas,
and
from
agricultural,
mining
and
similar
sources?

CONCLUSION:
No,
it
would
not.
States
have
a
full
arsenal
of
authority
and
existing
laws
and
controls
to
control
rural
and
urban
dusts
under
their
police
power,
public
and
private
nuisance
laws,
soil
conservation
laws,
and
air
pollution
control
laws
based
on
available
control
technology
and
best
management
practices.
In
addition,
because
EPA
has
determined
that
the
excluded
dust
does
not
present
substantial
health
or
welfare
concerns
at
ambient
concentrations,
there
is
no
need
to
control
dust
for
the
purpose
of
meeting
those
standards.
EPA
cites
Virginia
v
EPA,
108
F.
3d
1397
(
D.
C.
Cir.
1997),
as
supporting
its
contention
that
the
coarse
PM
exclusion
will
unlawfully
bar
Governors
from
regulating
coarse
PM.
That
case
holds
that
EPA
cannot
restrict
the
measures
chosen
by
a
state
to
achieve
the
ambient
standards.
Here,
EPA
is
not
mandating
particular
controls
a
state
must
adopt.
Instead,
EPA
is
not
regulating
non­
urban
coarse
PM
because
it
does
not
pose
health
concerns
­­
i.
e.,
regulation
is
not
"
requisite"
to
protect
public
health.
Because
agricultural,
mining
and
similar
sources
produce
non­
urban
coarse
PM
that
has
not
been
shown
to
pose
a
health
concern,
those
sources
do
not
need
to
be
controlled
under
the
PM
NAAQS.
States
have
authority
both
under
their
traditional
"
police
power"
and
under
section
116
of
the
Clean
Air
Act,
to
go
beyond
and
enact
provisions
more
stringent
than
those
required
by
the
Clean
Air
Act.

States
neither
need
to,
nor
have
they
generally
relied
on,
the
PM
NAAQS
to
make
requirements
for
dust
control.
In
fact,
under
EPA's
rural
fugitive
dust
policy
and
attainment
guidance,
states
have
not
been
required
to
control
rural
fugitive
dusts
even
when
those
dusts
exceeded
the
PM
NAAQS.
Control
of
coarse
PM
dusts,
such
as
fugitive
dusts,
have
been
made
on
the
basis
of
best
management
practices
and
control
techniques,
not
NAAQS
emission
factors
and
models
(
which
are
neither
reasonably
available
nor
adequate).
BMPs
are
often
imposed
to
eliminate
nuisance
and
soiling.
States
have
full
power
and
authority
under
their
police
power
to
regulate
nuisance
and
soiling.
States
have
adopted
emission
control
regulations,
including
fugitive
dust
control
plans
requiring
agency
approval,
opacity,
and
best
management
practices,
such
as
watering,
windbreaks
and
speed
limits,
that
must
be
applied.
These
measures
are
not
based
upon
nor
limited
to
PM2.5,
PM10
or
Total
Suspended
Particulate
Matter,
and
instead
control
a
broader
and
full
spectrum
of
total
particulate
matter
and
dusts
of
much
larger
sizes
that
constitute
the
bulk
of
the
mass
of
fugitive
dusts
generally.
We
know
of
no
instance
where
EPA
or
a
state
was
required
to
repeal
control
of
a
fugitive
dust
source
because
it
was
unnecessary
to
meet
a
PM
NAAQS
(
for
instance
when
TSP
was
repealed
and
PM10
issued
in
1987).
