(DTN) It's called "track out." It cost Steve Sossaman $3,000. Could have been worse. The maximum fine is $10,000. Track out is the result of a vehicle leaving an unpaved area and tracking dirt onto the highway. In Sossaman's incident, debris was tracked onto the road by a truck hauling silage from one of his fields. Oncoming vehicles driving over the dirt trail launch microscopic particles into the air degrading air quality. It earns the landowner a citation.

Such is farming within the Maricopa County, Ariz., PM10 Nonattainment Area. There an ordinance prohibits operators of leaf blowers from blowing debris onto the road (a cousin to the track-out ordinance), and $300 fines are levied against the owners of vehicles idling more than 5 minutes. This is a locale where rules written in Washington governing opacity (the capacity of airborne dust to intercept light) collide with a guy trying to work cattle.

All of this because Maricopa County fails to meet federal clean air standards for coarse particulate matter, also known as PM10. Airborne dust, or more specifically fugitive dust, is one component of PM10 -- matter 10 micrometers in diameter (human hair is 80 micrometers). The EPA believes there is a risk of damage to human lungs when minute dust particles are inhaled. Arizona could lose $1.7 billion in federal highway funds if it does not soon get a handle on fugitive dust.

Here's the rub on dust rules. They may be coming to a state near you. Dust is typically thought of as a Western issue. But EPA is thinking about cutting by half the national standard for airborne particulate matter, which could draw more regions into the battle against dust.

"Agriculture will bear the brunt of this devastating rule," predicts Tamara Thies, chief environmental counsel for the National Cattlemen's Beef Association.

Sossaman was traveling when inspectors from the Maricopa County Air Quality Department's Dust Compliance Division spotted the violation. Under pressure from EPA and Arizona, Maricopa County's "dirt police," as Sossaman calls them, are aggressive. "They sit out there and wait and watch," he says.

EPA has more in its quiver than dust. It is active on pesticides, on nutrients and on global warming.

Alan Kemper, who farms in Indiana, has calculated how regulation already affects his farm. Kemper, who is president of the American Soybean Association, spends 32 hours a month managing not his farm but rules -- environment, taxes and labor. "It's nonproductive time," says Kemper, who is concerned about EPA's muscle flexing. "We see American agriculture losing productivity."

More, it appears to some agricultural observers that EPA is working disturbingly close with environmental groups. "Congress makes the laws in this land; the executive branch does not," says Thies. "But [the EPA] seems to be saying, 'Sue us.'"

E. Keith Menchey, who works science and environmental issues for the National Cotton Council, says, This administration works as though it is on steroids. And environmental activists, he says, "see a window of opportunity to get their agenda implemented."

The courts, spurred by citizen lawsuits, have taken EPA to the woodshed. Last fall, the 9th U.S. Court of Appeals ruled that a National Pollutant Discharge Elimination System permit is required for storm water runoff from logging roads. The Northwest Environmental Defense Center, an Oregon nonprofit organization, successfully argued that mud from logging roads, ditches and culverts directly pollutes forest streams.

Direct, or point source, pollution of the nation's waters is regulated by the Clean Water Act. The decision alters the long-held notion that storm water runoff from forest roads or agricultural fields is nonpoint-source pollution and, therefore, not regulated by clean water laws. The game is changing.

Close attention is being paid to what EPA will announce regarding its court-mandated responsibility to regulate the application of pesticides near waters of the United States (streams, rivers, lakes) under the Clean Water Act. This also is the result of a federal court decision. Before the court ruling, the Federal Insecticide, Fungicide, Rodenticide Act (FIFRA) governed pesticide use. The act sets up a system to register pesticides so that if they are used in accordance with the product's label, they will not cause unreasonable harm to the environment. It is unclear how FIFRA and the Clean Water Act will -- or will not -- work together to regulate pesticides.

EPA is attempting to minimize the impact the court decision will have on applicators, says Lawrence Elworth, agricultural counselor to the office of EPA Administrator. The rule targets acquatic pesticides, not those applied over land or pesticide residues in runoff or irrigation return water. The agency, Elworth says, is also leaning favorably toward the concerns of cranberry growers who, by the nature of their production, work directly inside regulated wetlands.

The EPA has asked the federal court for additional time to develop this rule. It was supposed to go into effect this month. Depending on the court's decision, the final rule could be delayed until late this fall. But whatever the final rule, there is nothing EPA can do to prevent citizen lawsuits.

"This looks like double jeopardy," says Rod Snyder, director of public policy for the National Corn Growers Association, observing that both FIFRA and the Clean Water Act appear in some instances to regulate pesticides. "This is a pretty scary thing."

Rep. Frank Lucas, R-Okla., 18 years in Congress and three months chairman of the House Agriculture Committee, comes from a century farm that his wife operates while he is in Washington. As a farmer and as someone who oversees farming from Washington, he finds his fellow producers "apprehensive" over the regulatory burdens they face. He's less than convinced Washington appreciates the challenge farmers face in doubling their production by 2050. "Every day, the administration seems to demonstrate just how vastly disconnected it is from the folks who feed us."



In March, Lucas began to push back with hearings to review "the regulatory assaults" coming from EPA. This will be the first of many visits by EPA Administrator Lisa Jackson, Lucas promised during a speech at the Commodity Classic in Tampa Bay, Fla., in early March. The hearings are intended to answer three questions. Is the EPA following the law? Are decisions based on sound science? Has the EPA conducted cost and benefit analysis of their rules?

The American Farm Bureau Federation also is pushing back. To fend off an oncoming EPA effort around the Chesapeake Bay, it is suing the agency to prevent it from implementing its pollution discharge plan. The effort "threatens to starve agriculture out of the entire 64,000-square-mile Chesapeake Bay watershed," says Farm Bureau President Bob Stallman.

Back in the fields outside Phoenix, the EPA is pressuring Arizona to more closely monitor its farmers. If farmers are shielding their equipment to keep dust down, the EPA may want to know exactly how they are doing it. If a livestock operation is using water to control dust, the agency wonders aloud in a draft document how the water is applied and where.

A more activist-minded EPA in Arizona would signal a change for agriculture, which operates under a less obtrusive fist than do other industries. On air quality issues, agriculture is regulated by the Arizona Department of Environmental Quality (ADEQ). Farmers and ranchers must choose -- and they have choices -- from menus of best-management practices to control dust. Farmers do risk sanctions for inaction, and there is the ongoing threat of citizen complaints. But ADEQ is not supposed to make spot inspections.

The Arizona Department of Agriculture cooperates with the ADEQ, offering help as farmers adopt practices to reduce dust emissions. USDA's Environmental Quality Incentives Program (EQIP) made $1.8 million available last year to help pay for the work.

Dust has changed Sossaman's farms. He has abandoned cotton (too many dust-producing trips) for silage corn (early harvest) and alfalfa (all green, all the time). He works with ADEQ and the state ag department to control dust. The field work is good stuff, he says. "I get credit and the state can show that agriculture is making an effort. He is planning to install gravel pads at field exits to minimize track out with help from EQIP.

But Sossaman feels the pressure -- from EPA, USDA, ADEQ, the state department of agriculture and Maricopa County. "My frustration," he says, "is that we are not only living under the overhang of EPA, but we have all these other layers right down to the county and city, down to the roads."

Rules for the Farm

Here's an overview of the major environmental issues confronting agriculture for the next couple of years.

Pesticides: As the result of a 2009 Circuit Court of Appeals decision (National Cotton Council, et al vs. EPA), EPA is expected to issue a general permit for the use of acquatic pesticides applied over waters of the U.S. This is a titanic shift in the regulation of pesticides. Until now, pesticide use had been governed by the product labels. However, the court judged that in instances near water, the Clean Water Act governs. EPA has sought to assure most farmers that they are not the target of this regulatory exercise. But neither has it entirely excluded them. The agency appears ready only to regulate products registered for aquatic use. Activists would rather see most pesticides come under EPA's authority to regulate water. Agricultural storm water and irrigation return flow are not affected. But farm groups fear that the door is open to the regulation of storm and irrigation water, as well as tile discharges and spraying operations.

Chesapeake Bay: The Chesapeake Bay watershed covers 64,000 square miles, 84,000 farms and 100,000 streams and rivers that cut through Maryland, Delaware, Virginia, West Virginia, New York and Pennsylvania. With an executive order declaring the Chesapeake Bay as a national treasure, the Obama administration has rolled out a $490 million plan setting limits on nitrogen, phosphorus and sediment loads for each state. USDA contends that 81% of farms there need improved nutrient management, and 2 million acres lack even good conservation practices. There is widespread concern -- even an expectation -- that the Chesapeake Bay template will be copied elsewhere, perhaps across the 31 states and 1.24 million square miles of the Mississippi River basin.

Florida: The EPA has finalized standards it says will protect Florida waters from nutrient pollution. The new rules are aimed at reducing phosphorus and nitrogen pollution and will affect more than 6 million acres of agricultural land. The Florida Farm Bureau argues the rules will affect more than 13 million acres.

Dust: EPA is expected to issue by 2012 a rule on dust that could bring more farming areas under the nation's clean air laws. The Clean Air Act requires the EPA to establish National Ambient Air Quality Standards every five years. In its latest review, the agency is said to be considering a rule that would tighten regulations governing coarse particulate matter -- dust is a component. Or, the agency may leave the current standard alone. Some in EPA believe the science supports leaving the standard unchanged. The EPA believes that coarse particulate matter damages human lungs. While this new standard isn't aimed entirely at agriculture, practices such as tillage, moving cattle or harvesting crops could be affected.

Atrazine: After the EPA decided in 2006 that "cumulative exposures to these pesticides [atrazine and simazine] through food and drinking water are safe and meet ... rigorous human health standards," the agency announced in October 2009 it would take another look, saying the review is meant to ensure that its stand on atrazine protects public health. That decision comes despite 6,000 studies supporting the agency's 2006 conclusion. EPA also reported last year that none of the 100 community water systems it had been watching, many in the Midwest, exceeded their limits for atrazine. Critics are pressing their concerns in the courts. EPA plans this year to review any new data on atrazine found in an ongoing Agricultural Health Study by the National Cancer Institute. EPA also will ask for a review of atrazine's impact on aquatic ecosystems. Greenhouse Gases: Recall 2007 when the Supreme Court ruled that EPA was working outside the Clean Air Act when it declined to regulate greenhouse gases from automobiles. That ruling looks ominous for agriculture. It requires even small emitters of gases to obtain operating permits. That could include farms with 25 cows, 50 fed cattle, 200 hogs or more than 500 acres of corn. But "could require" and "will require" have different meanings. EPA has indicated that small emitters are not immediate targets. But legal experts argue this view violates the Clean Air Act. What does seem clear is that agriculture will not be left unscathed. Utilities, refiners, manufacturers and other emitters of greenhouse gases that must comply will pass their increased costs down to their farmer customers.

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