EPA actions may burden nonwoven products.

However, filtration manufacturers could benefit from particulate proposal.

The U.S. Environmental Protection Agency (EPA) has recently taken two actions under provisions of the federal Clean Air Act (CAA) that could have a direct impact on manufacturers throughout the country, including nonwovens producers. One of these actions, a final rule that was released in mid-February, could make it easier for government regulators and environmental groups to bring enforcement suits against manufacturers who have allegedly violated provisions of the Clean Air Act.

The other action, a proposed rule that may be finalized by mid-July, would significantly restrict the amount of particulate matter (PM) and ozone that can be released into the atmosphere. While this proposal, if eventually adopted, could require manufacturers in many different industries around the country to incorporate expensive equipment and adopt process changes that would limit their emissions, it could also spur tremendous demand for sophisticated filtration devices - many of which require nonwoven filters.

PM Proposal

In late 1996, the EPA issued a proposed rule that would set new standards for ozone and PM emissions that are much more stringent than currently required. While current rules limit PM emissions to particles that are 10 microns or smaller, the new rule would set a limit of 2.5 microns (a micron is measured as one millionth of a meter, about 1/[28.sup.th] the width of a human hair). Ozone emissions would be restricted from the current standard of 0.12 parts per million to 0.08 parts per million.

Under the proposal, states would have to adopt individual regulations to control PM and ozone emissions from facilities that operate within their borders. The EPA would have until the year 2000 to determine which areas of the country would need to adopt new standards and then those states would have until the year 2003 to develop plans to achieve the new standards. Depending on how quickly the EPA and the states can take action on these requirements, industry could be compelled to adopt new emission standards as early as the year 2004 or as late as the year 2011.

The number of "nonattainment" areas in the country would nearly double under the proposed rule and many facilities in those areas would find themselves subject to Title V permitting requirements under the CAA. These facilities would need to restrict their emissions of PM, VOC's, N[O.sub.x] and S[O.sub.x] significantly.

The EPA estimates the rule would carry about $6 billion a year in compliance costs, but claims that it would protect the public - especially children - from premature death, asthma, bronchitis and other adverse health effects. The EPA claims, therefore, that the benefits outweigh the costs.

Nonwovens producers should note that, in several previous CAA actions, the EPA has determined that fabric filtration devices are considered the "state of the art" in restricting emissions of PM and certain gasses. Should the proposed rule be adopted, it could result in tremendous demand for such devices.

But the fate of the proposal is uncertain at present. While the EPA intends to finalize the rule by July 19, numerous industry groups and members of Congress have banded together to fight its adoption. Industry claims that the EPA does not really know the extent of the free particulate problem, that certain studies dispute a correlation between PM emissions and adverse health effects and that the true cost of the regulation would be much higher than EPA estimates. One industry group has quoted a report by an EPA contractor that says the regulation could cost as much as 819.6 billion in just the Midwest and Northeastern portions of the country.

Congress, for its part, has already scheduled hearings on the proposal and is expected to review the final rule under provisions of the Small Business Regulatory Enforcement and Fairness Act (SBREFA) that was approved last year as a means of curtailing onerous federal regulations. This rule, in fact, could result in the first Congressional use of SBREFA's provisions to block the adoption of a regulation.

Moreover, even if Congress does not block the regulation, industry is expected to seek relief through the federal courts under provisions of both the SBREFA and the Unfunded Mandates Act. EPA administrator Carol Browner has said that she expects these challenges, but is confident that the agency has done everything required to implement the rule and that, ultimately, it will be put into place.

New 'Credible Evidence' Rule

Meanwhile, the other action that has recently been taken by the EPA under the CAA came in the form of a final rule that was published in mid-February and, according to some, will substantially expand the types of evidence that government officials and private citizens can use in claiming violations of the Clean Air Act. Known as the "credible evidence" rule, it removes requirements that the EPA, state governments, private citizens and environmental groups use formulas to demonstrate that facilities have exceeded emission standards under various CAA regulations.

In issuing the rule, the EPA claims that it has merely codified existing law, but industry sources believe that the action will actually result in increased stringency standards that are uncalled for. Industry also claims that the new rule will result in more complicated data analysis requirements and could expose many facilities to increased regulatory liability.

The EPA's action is based on provisions of the CAA that outline two types of evidence that can be used to determine whether violations of the Act have occurred. The first, which currently must be used under EPA regulations, is known as the "reference test method." Under this method, enforcement officials must use procedures that are spelled out in each clean air regulation to measure whether a facility has exceeded allowable emission levels contained in the regulation. Measurement methods vary from rule to rule depending on the type of facility that is regulated and the type of pollutant that is being controlled.

The second type of evidence, "any credible evidence," includes anything that is deemed credible under state or federal rules of evidence. By codifying this standard into its regulations, industry sources are concerned that the EPA will open a floodgate of lawsuits instigated by private sector sources against individual facilities. One of the biggest industry fears is that data that must be collected to comply with periodic monitoring requirements under various CAA regulations could be used as the basis for enforcement actions even if measurements have not been taken under the reference test method.

The EPA disputes these concerns as being unrealistic. Yet several industry groups have vowed to fight this action in the federal courts. Only time will tell what the actual results of the rule will be or if it will stand at all.

Peter Mayberry is the director of government affairs for INDA, Association of the Nonwoven Fabrics Industry. He works out of the law offices of Kutac Rock in Washington D.C. This Capital Comments column appears monthly in NONWOVENS INDUSTRY.