Pig Pickin’ Ban in North Carolina?

Until recently, no one in North Carolina, home to so many tobacco companies, could have imagined a statewide smoking ban in public buildings.

And yet it’s possible that federal environmental regulators could target another signature Tar Heel State tradition: the pig pickin’.

Several cities in California, Colorado, and other states have banned outdoor grilling — particularly where wood or charcoal is involved — at parks and other public areas and at events including weekend festivals. And if the U.S. Environmental Protection Agency tightens its regulations covering coarse particulate matter in 2011, mobile smokers could be endangered.

Outdoor barbecues would not be the main target of the new federal regulations. Instead, the rules seek to limit farm and rural dust, placing the nation’s farmers, ranchers, livestock producers, and miners on notice. Some activists are even suggesting all unpaved roads be paved as a way to curb dust creation.

The EPA began regulating particulate matter in 1971 to battle soot, but over the years has expanded those regulations to include a host of other particles. Under the Clean Air Act, the EPA conducts a review of the particulate matter (PM) national ambient air quality standards (NAAQS) every 5 years to determine if the standards need to be toughened. Congress determined that NAAQS standards must be health-based, meaning scientific studies must show a pollutant causes adverse health effects for it to be regulated.

After the last review in 2006, the EPA adopted a more stringent standard for coarse PM that many scientists say was based on flawed health studies, making the rule cautionary not evidentiary regarding potential public health threats.

Along with other groups, Lorraine Krupa Gershman, engineer and director of regulatory/technical affairs for the American Chemistry Council, faults the EPA for basing its proposed rules on flawed scientific reviews, for failing to cite numerous opposing studies, and for using data not publicly available. In a July 2010 letter to the EPA, Gershman said the “EPA should not base a rulemaking on information which cannot be scrutinized by the public.”

Both coarse (PM10) and fine (PM2.5) particle standards are under review, but the agriculture industry is most concerned about coarse particles, which are less than 10 micrometers in diameter, making them smaller than the average diameter of a human hair (70 micrometers) and a grain of fine beach sand (90 micrometers). Scientists say most coarse PM in a rural environment is just ordinary dust.

Horses running through a pasture, farmers harvesting crops, or even someone driving or walking down an unpaved road can kick up dust clouds. “Dust is a natural occurrence,” said Paul Sherman, air and energy programs director with the North Carolina Farm Bureau Federation, “so how can someone mitigate dust creation short of using water, especially in a rural area?”

In testimony before the U.S. Senate Committee on Agriculture, Nutrition, and Forestry on Sept. 23, Rich Hillman, vice president of the Arkansas Farm Bureau, said the “continuous onslaught of regulations and requirements” from the EPA is “driving costs so high that small, local farmers simply cannot keep up” and are in grave danger of going out of business. Hillman added that the effect of these regulations means more of America’s food production will be outsourced to foreign nations and more American jobs will be lost.

“Farmers are good stewards of the land, but these regulations could criminalize best agricultural practices and make something illegal that’s not hurting people or the environment,” said Bryan Blinson, executive director of the N.C. Cattlemen’s Association.

A coalition of 120 industry groups from around the nation sent a request for urgent action on their behalf to West Virginia Gov. Joe Manchin, chairman of the National Governors Association. The coalition cited concerns that tougher standards would place more of the West into nonattainment without any public health benefit.

Sherman told Carolina Journal that his organization is evaluating the potential impact on North Carolina and wants to make sure “the science is sound and that regulators balance that against the economic impact.” Even so, the Clean Air Act does not allow the EPA to consider the economic consequences of its regulations.

In July, a bipartisan group of 20 U.S. Senators, mostly from Western and Midwestern states, sent a letter to EPA Administrator Lisa Jackson expressing their concern that the proposed coarse PM standard would be twice as stringent as the current standards, “which have been difficult if not impossible for industries in the Western portion of the country to attain.” The senators said these tougher standards could “slow economic development and impose significant costs to farmers and businesses.”

Michael Formica, chief environmental counsel for the National Pork Producers Council, told CJ that, even though the EPA lost on 20 different points regarding dust regulation during legal challenges in 2006, the groundwork was laid to allow the EPA to go down the path of rural dust regulation.

Beware the Clean Water Act

Formica and others have said the greater danger to North Carolina and to rural communities nationwide is from the Clean Water Act. What the EPA has not been able to achieve directly through the Clean Air Act, it’s prepared to do indirectly through the Clean Water Act. By arguing that dust from farms and unpaved roads in rural areas can blow miles away and land in a pond or ditch, creating a discharge that could be harmful to humans and the environment, the EPA would be able to regulate farms, Formica said.

Both Hillman and Formica said Maryland is leading an aggressive expansion of its regulatory and enforcement authority against farming in the Chesapeake Bay Watershed and has said publicly it plans to replicate these regulations to the rest of the nation.

Should the EPA take over permitting from states, regulators would eliminate the agricultural storm water exemption and require farmers and ranchers to obtain federal permits that would vastly restrict their productivity and efficiency. These actions would be undertaken without regard for the impact on agriculture and would not require the government to prove a public health threat.

Conflicting regulations

“The EPA and other federal agencies have so many units within that operate in their own silos, making rules without knowing about other rules or understanding the consequences of their actions,” Formica said.

For example, to limit dust, farmers in the Midwest and West are required to attach heavy water tanks to their conveyers to spray water on the ground as they harvest crops. In arid regions or when a region experiences drought, water is a precious resource. Such actions defy reason, critics say.

The U.S. Department of Agriculture’s Air Quality Task Force has been holding meetings in several states to discuss concerns over regulations that impact agriculture. The most recent meeting was with at EPA headquarters in Research Triangle Park Sept. 29 and 30.

Karen McMahan is a contributor to Carolina Journal.