` 

# Summary of Public Comments and Responses for Greenhouse Gas Reporting Rule:
Revisions to Reporting and Recordkeeping Requirements, and Proposed Confidentiality Determinations Under the Greenhouse Gas Reporting ProgramSeptember 201 4



## Response to Public Comments on the Revisions to Reporting and Recordkeeping Requirements, and Proposed Confidentiality Determinations Under the Greenhouse Gas Reporting Program

U. S. Environmental Protection Agency Office of Atmospheric Programs Clima te Change Division Washington, D.C.Draft Deliberative

iii 

### FOREWORD
This document provides the EPA’s responses to public comments on the Revisions to Reporting and Recordkeeping Requirements, and Proposed Confidentiality Determinations Under the Greenhouse Gas Reporting Program. The EPA published a Notice of Proposed Rulemaking in the Federal Register on September 11, 2013 (78 FR 55994). On July 7, 2010, the EPA proposed confidentiality determinations for the majority of data elements requir ed to be reported under the GHGRP, as well as for the majority of source categories covered by the program. In the July 7, 2010 , action, the EPA proposed that data elements categorized as “inputs to emission equations” are emission data. The Clean Air Act precludes “emission data” from being treated as confidential. Based on industry concerns regarding the potential release of data elements categorized as “inputs to emission equations,” the EPA deferred reporting of these data elements (see August 25, 2011 , final action, 76 FR 53057) to allow it to complete its evaluation of the potential impact from the public release of these data elements (see 76 FR 53060, August 25, 2011) and, if appropriate, to propose amendments to Part 98 (see 75 FR 81355, December 27 , 2010). The proposed amendments address ed the EPA’s analysis of disclosure concerns associated with the data elements categorized as “inputs to emission equations” for which reporting was previously deferred to March 31, 2015

. The EPA proposed amendments to the reporting and recordkeeping requirements of the GHGRP . These proposed amendments were part of an alternative verification approach to be adopted by the EPA to address disclosure concerns associated with public release of data, while maintaining the EPA’s ability to verify emissions and ensure compliance with the G HGRP . The alternative verification approach included in the proposal included the following amendments to P art 98 :

 Adding a requirement for certain reporters under 2 3 subparts to use an EPA

- provided inputs verification tool (IVT)

. IVT would calculate the emission equation results and perform electronic verification. IVT would not retain the entered inputs but would conduct certain checks (e.g., accuracy of the inputs) at the time of data entry and generate a verification summary. The verification summary, which would be accessible to the EPA once the annual report is submitted, would provide the EPA with information to conduct further verification if necessary.

 For repo rters required to use IVT , changing the required format for maintaining records of these inputs to emission equations.

 For reporters required to use IVT , lengthening the record retention period from 3 to 5 years for all records maintained under Part 98 (in cluding subparts that do not require the use of the tool).

 For certain reporters required to use IVT , adding new data elements to be reported for the EPA’s verification purposes, and proposing confidentiality determinations for the new data elements propos ed to be reported.Draft Deliberative

iv  For reporters required to use IVT , removing the requirement to report the inputs to emission equations for which reporting was deferred to 2015 and disclosure concerns have been identified, and requiring these data to be kept as records. During the public comment period, the EPA received 30 comment letters in response to the September 11 , 2013 , proposal. This document provides the EPA’s responses to the public comments regarding the proposal. The verbatim text of each comment extracted fr om the original comment letters is included in this document, arranged by subject. For each comment, the name and affiliation of the commenter, the document control number (DCN) assigned to the comment letter, and the number of the comment excerpt are prov ided. W here possible, the EPA separated comments on specific topics into their respective data categories. However, in some cases, commenters made broad statements about the proposed amendments to Part 98 or general comments on the approach that could not be easily separated by topic or data category without potentially affecting the intended meaning of the commenter’s statements. In such cases, we either repeated the comment excerpt in its entirety in each of the relevant sections of this document or refer red the reader to the response to another similar comment.

The EPA’s responses to comments are generally provided immediately following each comment excerpt. In some cases, the EPA provided responses to specific comments or groups of similar comments in the preamble to the final rulemaking. Rather than repeating those responses in this document, the EPA has referenced the preamble to the final rule. In some cases, a commenter incorporated by reference the comments of another company or organization. Rathe r than repeat these comment excerpts for each commenter, the EPA has listed the comment excerpt only once under the name of the person, company or organization who submitted the comment and included a list of commenters who indicated their support for that comment in a footnote. Copies of all comment letters submitted are available at EPA Docket Center Public Reading Room or electronically through http://www.regulations.gov by searching Docket I D No. EPA

- HQ

- OAR

201 0

- 0 929

.Draft Deliberative

v The primary contact regarding questions or comments on this document is:

Carole Cook (202) 343

- 9263 U.S. Environmental Protection Agency Office of Atmospheric Programs Climate Change Division Mail Code 6207

- J 1200 Pennsylvania Avenue, NW
W ashington, D.C. 20460

For technical information, contact the Greenhouse Gas Reporting Rule Hotline at: http://www.epa.gov/ghgreporting/contactus.html

.Draft Deliberative

vi 

### TABLE OF CONTENTS
Page
FOREWORD

................................ ................................ ................................ ................................ iii
1.0 Verification Approach

— General

................................ ................................ .................... 1
2.0 Use of Inputs Verification Tool for Certain Subpart C Sources

................................ 13 2.1 Revision of 40 CFR 98.36(f)

................................ ................................ ................. 13 2.2 Use of Input s Verification Tool for Certain Subpart C Sources That Do Not Meet the Criteria Specified in 40 CFR 98.36(f)

................................ .................... 15
3.0 Inputs Verification Tool

— Schedule for Releasing

................................ ...................... 18
4.0 Pilot Inputs Verification Tool

................................ ................................ ........................ 23 4.1 Pilot Inputs Verification Tool

— Adequacy for Public Comment

.......................... 23 4.2 Pilot Inputs Verification Tool

— Upload of XML Reports

................................ ..... 29 4.3 Pilot Inputs Verification Tool

— Potential Design Errors

................................ ....... 33
5.0 Inputs Verification Tool Design

................................ ................................ ..................... 36 5.1 Inputs Verification Tool Design

— Recommendations for Improving

................... 36 5.2 Inputs Verification Tool Design

— Overriding IVT Calculated GHG Equation Results

................................ ................................ ................................ .................... 40
6.0 Inputs Verification Tool

— Verification Summary

................................ ....................... 42
7.0 Inputs Verification Tool

— Risk of Disclosure

................................ .............................. 44 7.1 Inputs Verification Tool

— Security

................................ ................................ ....... 44 7.2 Inputs Verification Tool

— Other Risks of Disclosure

................................ ........... 52
8.0 Revision of Table A

- 8

................................ ................................ ................................ ...... 76
9.0 EP A’s Harm Analysis Results, Including Removal of Requirements to Report Certain Inputs to Emissions Equations

................................ ................................ ........ 76 9.1 EPA’s Harm Analysis Results

— General Comments

................................ ............ 76 9.2 EPA’s Harm Analysis Results

— Subpart C

................................ ........................... 78 9.3 EPA’s Harm Analysis Results

— Subpart G

................................ ........................... 78 9.4 EPA’s Harm Analysis Results

— Subpart O

................................ ........................... 79 9.5 EPA’s Harm Analysis Results

— Subpart P

................................ ........................... 82 9.6 EPA’s Harm Analysis Results

— Subpart S

................................ ........................... 82 9.7 EPA’s Harm Analysis Results

— Subpart V

................................ ........................... 84 9.8 EPA’s Harm Analysis Results

— Subpart W

................................ .......................... 87 9.9 EPA’s Harm Analysis Results

— Subpart Y

................................ ........................... 92 9.10 EPA’s Harm Analysis Results

— Subpart Z

................................ ........................... 92 9.11 EPA’s Harm Analysis Results

— Subpart EE

................................ ......................... 93Draft Deliberative 

### TABLE OF CONTENTS (Continued) Page

vii 10.0 Reporting and Use of IVT for 2010

– 2013 Data Elements in Table A

- 7

..................... 94 10.1 IVT Not Required for 2010

– 2013 Inputs

................................ ............................... 94 10.2 Reporting of Inputs from 2010 to 2013

................................ ................................ . 95
11.0 Recordkeeping Requirements for IVT Users

................................ ............................... 99 11.1 Recordkeeping Format

................................ ................................ ........................... 99 11.2 Recordkeeping

— Duration for Subparts for Which IVT Is Required

.................. 102 11.3 Recordkeeping

— Duration for Subparts for Which IVT Is Not Required

........... 109
12.0 New Data Elements

................................ ................................ ................................ ....... 115
13.0 Final Confidentiality Determinations for New Data Elements

................................ . 118
14.0 Additional Comments

................................ ................................ ................................ ... 122
15.0 Out of Scope Comments

................................ ................................ ............................... 125Draft Deliberative

viii 

### List of Commenters DCN Commenter Name Commenter Affiliation EPA

- HQ

- OAR

- 2010

- 0929

- 0057 George Woods Littlejohn Engineering Associates EPA

- HQ

- OAR

- 2010

- 0929

- 0058 George Woods Littlejohn Engineering Associates
EPA

- HQ

- OAR

- 2010

- 0929

- 0059 Anonymous Public Comment N/A

EPA

- HQ

- OAR

- 2010

- 0929

- 0060 Anonymous Environmental policy class , Illinois Institute of Technology EPA

- HQ

- OAR

- 2010

- 0929

- 0061 Kerry Kelly Waste Management EPA

- HQ

- OAR

- 2010

- 0929

- 0062 Bryan Brendle Portland Cement Association EPA

- HQ

- OAR

- 2010

- 0929

- 0064 Wade Foster The Fertilizer Institute EPA

- HQ

- OAR

- 2010

- 0929

- 0065 Margaia N/A EPA

- HQ

- OAR

- 2010

- 0929

- 0066 Timothy N. Montgomery Ascend Performance Materials EPA

- HQ

- OAR

- 2010

- 0929

- 0067 Andrew T. O'Hare Portland Cement Association EPA

- HQ

- OAR

- 2010

- 0929

- 0068 Russell A. Wozniak Dow
EPA

- HQ

- OAR

- 2010

- 0929

- 0069 Glenn E. Davis HelperBroom LLC

— Mississippi Lime EPA

- HQ

- OAR

- 2010

- 0929

- 0070 Jeff Applekamp Gas Processors Association EPA

- HQ

- OAR

- 2010

- 0929

- 0071 Robert A. Reich DuPont EPA

- HQ

- OAR

- 2010

- 0929

- 0072 Peter Pagano American Iron and Steel Institute EPA

- HQ

- OAR

- 2010

- 0929

- 0074 Karen Ritter API

EPA

- HQ

- OAR

- 2010

- 0929

- 0075 Leslie Sue Ritts National Environmental Development Association ’ s Clean Air Project

EPA

- HQ

- OAR

- 2010

- 0929

- 0076 Sharon H. Kneiss and John Skinner National Waste/Recycling Association/Solid Waste Association of North America EPA

- HQ

- OAR

- 2010

- 0929

- 0077 Niki Wuestenberg Republic Services EPA

- HQ

- OAR

- 2010

- 0929

- 0078 David W. Hacker United States Steel Corporation
EPA

- HQ

- OAR

- 2010

- 0929

- 0079 Angus E. Crane North American Insulation Manufacturers Association
EPA

- HQ

- OAR

- 2010

- 0929

- 0080 David Friedman American Fuel and Petrochemical Manufacturers
EPA

- HQ

- OAR

- 2010

- 0929

- 0082 Mark Roberts and Avipsa Maha patra Environmental Investigation Agency

EPA

- HQ

- OAR

- 2010

- 0929

- 0083 Paul Noe and Robert Glowinski American Forest and Paper Association/American Wood Council EPA

- HQ

- OAR

- 2010

- 0929

- 0085 Lorraine Krupa Gershman American Chemistry Council EPA

- HQ

- OAR

- 2010

- 0929

- 0086 Charles Johnson Aluminum Association

EPA

- HQ

- OAR

- 2010

- 0929

- 0088 Various Natural Resources Defense Council/Environmental Defense Fund/Earthjustice/Clean Air Task Force/Sierra Club EPA

- HQ

- OAR

- 2010

- 0929

- 0089 William C. Herz National Lime Association EPA

- HQ

- OAR

- 2010

- 0929

- 0090 Kerry Kelly Waste Management EPA

- HQ

- OAR

- 2010

- 0929

- 0093 Karen Ritter APIDraft Deliberative

1 

### 1.0 Verification Approach

— General

Commenter Name: Paul Noe and Robert Glowinski Commenter Affiliation: American Forest and Paper Association/American Wood Council Document Control Number: EPA

- HQ

- OAR

- 2010

- 0929

- 0083 Comment Excerpt Number: 1

Comment: In general, AF&PA and AWC are supportive of the approach that EPA has proposed to trea t CBI data elements. We believe that, assuming the program works as intended, the Electronic Input Verification Tool is a creative way to protect the inputs to emission equations, but allows EPA the ability to verify those inputs. We also agree that it is appropriate to remove the 440 data elements laid out in the proposal, particularly the ones associated with Subparts C and AA. Response: The EPA thanks the commenter for their support for the proposed verification approach

. In addition, the EPA wants to cl arify that the Agency has not made confidentiality determinations for any of the inputs to emission equations removed from reporting, either in this final rule or in any other final action

. However, we believe, and the commenter appears to agree, that we h ave addressed in this final rule the concerns raised by various reporters regarding the potential release of certain “inputs to emission equations” data elements while maintaining the EPA’s ability to verify emissions and ensure compliance with the GHGRP

. Regarding the comment supporting the number of inputs being removed from Part 98 , the total number of inputs removed from all 23 subparts has changed since proposal from 440 to 395. This change is due to: (1) changes made to the EPA’s harm analysis for sub parts Q, V, X, Y, and TT included in the “Evaluation of Competitive Harm from Disclosure of ‘Inputs to Equations’ Data Elements Deferred to March 31, 2015,” August 2013, due to various reasons including errors made at proposal (e.g. inadvertently excluding inputs listed in Table A

- 7 of Part 98 from the harm analysis and inadvertently including inputs in the harm analysis that were not listed in Table A

- 7 of Part 98) and revisions to Part 98 since proposal (i.e., removal of inputs for which reporting was def

erred to 2015 by another rulemaking) and (2) the EPA’s decision to address deferred inputs for subpart L in a separate final rulemaking. Refer to the memorandum

“ Summary and Explanation of Minor Revisions to the Proposed Rule , ” August 2014 , for further dis cussion about the changes that were made to the harm analysis for subparts Q, X, Y, and TT. Refer to Section I. C of the preamble to the final rule for the EPA’s decision to address deferred inputs in subpart L in a separate rulemaking. Refer to Section II. B.3 of the preamble to the final rule for further discussion of the EPA’s decision to change the harm determination for certain deferred subpart V inputs. No changes were made to the number of inputs removed from reporting for subpart AA.Draft Deliberative

2 Commenter Name : Glenn E. Davis Commenter Affiliation: HelperBroom LLC

— Mississippi Lime Document Control Number: EPA

- HQ

- OAR

- 2010

- 0929

- 0069 Comment Excerpt Number: 2

Comment: MLCO generally supports the proposed new CBI collection approach via the inputs verifier tool ("IVT"), as well as the additional requirements of the proposal, if certain concerns with the IVT can be addressed and assured confidentiality of CBI can/will be maintained. MLCO genera lly supports the USEPA's innovative effort to use alternative means to protect CBI, assuming the IVT and confidentiality matters are adequately addressed. Response: The EPA thanks the commenter for their support for the proposed verification approach using IVT. In addition, the EPA wants to clarify that the Agency has not made confidentiality determinations for any of the inputs to emission equations removed from reporting, either in this final rule or in any other final action . However, we believe, and the commenter appears to agree, that we have addressed in this final rule the concerns raised by various reporters regarding the potential release of certain “inputs to emission equations” data elements while maintaining the EPA’s ability to verify emissions and ensure compliance with the GHGRP

. In addition, we note that the EPA is not “collecting” data through IVT. For additional information on IVT, please see Section II.A.3 of the preamble to the final rule. The commenter’s
concerns regarding the adequacy of the IVT prototype made available for public comment, regarding the verification summary, and regarding the security of IVT are addressed in Sections 4.1, 6.0, and 7.1 of this document , respectively. Please refer to these sections for the EPA’s response s t o th ese concern s.

Commenter Name: David Friedman Commenter Affiliation: American Fuel and Petrochemical Manufacturers Document Control Number: EPA

- HQ

- OAR

- 2010

- 0929

- 0080 Comment Excerpt Number: 5

Comment: AFPM recognizes and supports EPA’s commitment to protecting CBI and its willingness to take action to ensure that such information is not inappropriately disclosed. With respect to the proposed rule, AFPM supports EPA’s decision to allow companies to use EPA’s electronic verification tool (along with related recordkeeping and reporting requirements) as an alternative to directly reporting raw material data and other CBI. Response: Please see response to comment EPA

- HQ

- OAR

- 2010

- 0929

- 0083, Excerpt 1 , in this section of this document

.

_____________________________________________________________________________ Commenter Name: Leslie Sue Ritts Commenter Affiliation: National Environmental Development Association ’ s Clean Air ProjectDraft Deliberative

3 Document Control Number: EPA

- HQ

- OAR

- 2010

- 0929

- 0075 Commen t Excerpt Number: 1

Comment: In addition to supporting the proposed confidentiality determinations for the various industry

- specific inputs into equations, NEDA/CAP supports the proposed protocol for using CBI inputs to calculate emissions, then deleting them from the MRR submission f ollowing verification. We recognize that EPA spent considerable time developing the verification tool for various QA/QC routines before adapting it for this particular verification/validation purpose, and we are grateful for the work and the ingenuity of t he approach. Most significantly, the methodology EPA proposes achieves a balance between EPA’s interest in the integrity of GHG emissions data collection while according weight to business’ concerns about the potential harm if these inputs are available to competitors. Response: The EPA thanks the commenter for their support for the proposed verification approach. In addition, the EPA wants to clarify that the Agency has not made confidentiality determinations for any of the inputs to emission equations re moved from reporting, either in this final rule or in any other final action . However, we believe, and the commenter appears to agree, that we have addressed in this final rule the concerns raised by various reporters regarding the potential release of cer tain “inputs to emission equations” data elements while maintaining the EPA’s ability to verify emissions and ensure compliance with the GHGRP . Further, the EPA wants to clarify that , a s explained in further detail in Section II.A.3 of the preamble to the final rule, entered data are not saved in IVT. The entered inputs will not be saved to the underlying EPA database, nor will they be saved to the server’s file system.

C ommenter Name: Lorraine Krupa Gershman Commenter Affiliation: American Chemistry Council 1 Document Control Number: EPA

- HQ

- OAR

- 2010

- 0929

- 0085 Comment Excerpt Number: 1

Comment: Overall, ACC supports EPA’s proposed inputs verification tool as a sound and balanced approach for EPA to obtain the information it needs without subjecting sen sitive business data to potential public disclosure. ACC strongly supports EPA’s proposed use of an input verification tool as an alternative to the direct reporting of certain emission calculation inputs. More specifically, ACC supports the tool’s ability to create a verification summary of GHG emissions without retaining certain data inputs given that, as EPA acknowledges, these data are sensitive business information and are of significant value to the reporting companies. Response: The EPA thanks the co mmenter for their support for the proposed IVT.

1 This comment was also supported by Dow (Docket I D No. EPA

- HQ

- OAR

- 2010

- 0929

- 0068).Draft Deliberative

4 Commenter Name: Charles Johnson Commenter Affiliation: Aluminum Association Document Control Number: EPA

- HQ

- OAR

- 2010

- 0929

- 0086 Comment Excerpt Number: 1

Comment: The Aluminum Association fully supports EPA’s solution to enable GHG report verification using the proposed verification tools rather than require reporting of Business Confidential Information (CBI) or other information likely to result in substantial competitive harm. In comments filed on September 3, 2010, the Aluminum Association requested EPA to retain CBI protections for certain inputs to GHG emission equations in Part 98 Subpart F

- Aluminum Production. The proposed verification tools, which would calculate emissions but not store the inputs to equations, fully address the Association’s concerns by eliminating the need for Association members to submit CBI or competitively sensitive data. Response: The EPA thanks the commenter for its support. As proposed, the final amendments do not require rep orting of deferred inputs to subpart F equations. Refer to Section II.B. 2 of the preamble to the final rule for further discussion of the final requirements to enter subpart F equation inputs into IVT.

The EPA wants to clarify that the Agency has not made confidentiality determinations for any of the “inputs to emission equations” data elements , either in this final rule or any other final action

. However, we believe, and the commenter appears to agree, that we have addressed in this final rule the concern s raised by various reporters regarding the potential release of certain “inputs to emission equations” data elements, including those in subpart F. These amendments achieve that objective while maintaining the EPA’s ability to verify emissions and ensure compliance with the GHGRP

.

Commenter Name: Russell A. Wozniak Commenter Affiliation: Dow Document Control Number: EPA

- HQ

- OAR

- 2010

- 0929

- 0068 Comment Excerpt Number: 1

Comment: Dow generally supports EPA’s proposed Inputs Verification Tool as a method to pr otect confidential business information. The tool allows EPA to perform electronic verification of the emission calculations without storing or reporting the entered inputs. Response: Please see response to comment EPA

- HQ

- OAR

- 2010

- 0929

- 0083, Excerpt 1 , in this section of this document

.Draft Deliberative

5 Commenter Name: Karen Ritter Commenter Affiliation: API Document Control Number: EPA

- HQ

- OAR

- 2010

- 0929

- 0074 Comment Excerpt Number: 19

Comment: API supports EPA’s development and willingness to use the verification tool in a n effort to avoid the disclos ure of confidential information. Response: Please see response to comment EPA

- HQ

- OAR

- 2010

- 0929

- 0083, Excerpt 1 , in this section of this document

.

Commenter Name: Robert A. Reich Commenter Affiliation: DuPont Document Control N umber: EPA

- HQ

- OAR

- 2010

- 0929

- 0071 Comment Excerpt Number: 3

Comment: DuPont generally supports EPA’s proposed inputs verification tool as a method to shield sensitive business information. Response: The EPA thanks the commenter for their support for the pro posed IVT.

Commenter Name: Peter Pagano Commenter Affiliation: American Iron and Steel Institute 2 Document Control Number: EPA

- HQ

- OAR

- 2010

- 0929

- 0072 Comment Excerpt Number: 1

Comment: EPA recognizes that it has had success developing and using e

- GGRT. ( See, e.g., Lisa Grogan

- McCulloch August 2013 Memo to the Docket

-- EPA

- HQ

- OAR

- 2010

- 0929

- 0048). As summarized in the Grogan

- McCulloch memo, for industry sectors where the reporting of inputs to emission equations was deferred until 2015, verification check s have been conducted through e

- GGRT using self

- certified reported data other than inputs to emission equations. Although EPA may have identified some reporting errors during the initial periods, such concerns will become increasingly rare as reporters bec ome more familiar with and are able to streamline the reporting process. This deferral period approach is an efficient and appropriate one, with strong parallels to other “certification” requirements that EPA has long deemed sufficient to ensure compliance in similar circumstances. Where questions exist, EPA has and can readily continue to follow

- up with facilities that are appropriately obligated to retain all relevant supporting information. [ Footnote: The “inputs to equations” data elements proposed to b e subjected for verification are already monitored and

2 This comment was also supported by United States Steel Corporation (Docket I D No. EPA

- HQ

- OAR

- 2010

- 0929

- 0078).Draft Deliberative

6 collected for calculation purposes and maintained by reporters. AISI does not oppose maintaining these data for five years.] The methodology applied during the deferral period should be adopted as EPA’ s permanent approach rather than requiring facilities to expend the effort to use an online verification tool that (as detailed below) necessarily poses additional risks of exposing sensitive CBI. In short, EPA already has a successful verification system in place, as demonstrated during the deferral period that will only continue to improve with time. Therefore, the risk of entering CBI into an unproven system that has the potential to be insecure is not justified, and the reporting methodology used during current deferral period should become permanent. Response: Refer to Section II.A.3 of the preamble to the final rule for further details regarding the EPA’s response to this comment

.

Commenter Name: Peter Pagano Commenter Affiliation: American Iron and Steel Institute 3 Document Control Number: EPA

- HQ

- OAR

- 2010

- 0929

- 0072 Comment Excerpt Number: 6

Comment: Industry reporters already monitor and collect for calculation the “inputs to equations” data elements proposed to be subjected for verification. With th e current methodology used during the deferral period, EPA requires reporters to implement monitoring plans to collect information in

- house for calculating GHG emissions, and to report the emissions in the e

- GGRT reporting tool. Under the proposed rule, ho wever, EPA proposes to remove the reporting requirement for 440 “inputs to equations” data elements that had previously been deferred until March 2015 for CBI consideration, but will still require the same data elements be instead entered in the new verifi cation tool if they appear by cross

- reference in the new proposed Table A

- 8. The Table A

- 8 elements encompass all the monitoring and reporting requirements for the iron and steel industry. Therefore, the proposed rule misses an opportunity to provide any burden relief for the industry while adding no real benefits , as reporters will still have to enter the same data as their own in

- house calculations. AISI asks that EPA make the benefits and burden relief achieved with the reporting methodology used during the deferral period permanent. Response: T he EPA clarifies that the purpose of this rulemaking is to address the concerns raised by various reporters regarding the potential release of certain inputs to emission equations for which reporting was deferred to 2015

. This rule achieves that end while maintaining the EPA’s ability to verify emissions and ensure compliance with the GHGRP

. Further , a s stated in Section V of the proposal preamble to this action and the memorandum “Assessment of Cost Impacts of 201 5 Inputs Rule

— Revisions to Reporting, Recordkeeping, and Verification Requirements under the Greenhouse Gas Reporting Program,” [September 2014 ] (EPA

- HQ

OAR

- 2010

- 0929) the proposed amendments to reporting and recordkeeping will not cause a significant incr ease in burden on reporters, as detailed in the EPA’s impacts analysis supporting the proposed amendments.

3 This comment was also supported by United States Steel Corporation (Docket I D No. EPA

- HQ

- OAR

- 2010

- 0929

- 0078).Draft Deliberative

7 Commenter Name: Mark Roberts and Avipsa Mahapatra Commenter Affiliation: Environmental Investigation Agency Document Control Number: EPA

- HQ

- OAR

- 2010

- 0929

- 0082 Comment Excerpt Number: 1

Comment: EPA must ensure that sufficient data is publicly available to allow the GHG information self

- reported by industry to be verified by interested stakeholders . Requiring the provision of any less in formation will undermine the EPA’s mission to protect the health and safety of the American public and the environment. Although we well understand the industry concerns about protecting trade secrets and business information, these concerns need to be bal anced against the need for transparency, any restrictions on disclosure of information based upon confidential business information (CBI) needs to be drawn as narrowly as possible to protect the public interest. EIA objects EPA’s proposal to withdraw the r equirement for crucial input data points essential for reliable GHG reporting. In order to avoid fraudulent reporting, EIA submits that EPA needs to require input data to be reported to EPA, and/or have independent third parties verify the information subm itted. Response: The EPA agrees with the commenter that transparency is important , and has released data that have been reported to the GHGRP except for data that have been determined to be CBI. The EPA disagrees that the GHG information reported needs to be verified by stakeholders. W hen the EPA finalized the Greenhouse Gas Reporting Rule in October 2009 [ 74 FR 56260 ], it adopted the approach of self

- certification with EPA verification. As such, the EPA is not relying
on interested stakeholders to verify reported emissions for this program

. Further, the EPA disagrees that inputs must be reported in order to avoid fraudulent reporting. F or the reasons stated below, the EPA disagrees with the commenter’s assertion that it i s essential and critical to require reporting of the inputs at issue to avoid fraudulent reporting. The alternative verification approach finalized today protects against fraudulent reporting. Requiring that the inputs to equations ( for which disclos ure co ncerns were identified ) be entered into IVT will provide the EPA with the certainty that reported annual GHG emissions values are either calculat ed correctly (because the equation results calculated by the tool are submitted) or that the EPA will be aw are of discrepancies between equation results calculated by the tool and emission values submitted to the EPA. T he EPA will also conduct additional verification checks, such as range and logic checks on the inputs to equations that are entered into IVT. As part of these verification checks, the EPA has the ability to compare data entered into IVT with additional supporting data (such as information on the activity level at the facility) required to be reported in the annual report. The EPA is also adding ap proximately 20 new reporting elements in this action to provide it with supplementary information for verification. These data elements are quantities that provide information on the activity level at the facility, emission factors used, characteristics of carbon

- containing streams, and other process information. The EPA will use these data to perform additional verification checks including confirming that emissions are appropriate for a given activity level, estimating expected emissions based on data pro vided, and checking consistency with reported GHG values. In addition, as stated in the proposed preamble to this action ( 78 FR 55994 ), the EPA also conducts electronic verification checks on data that
are currently reported in the annual report. For examp le, d uring reporting year 2011 , the EPADraft Deliberative

8 used approximately 3,700 electronic verification checks to verify reported data. Lastly , the EPA is revising the recordkeeping requirements to require that all records be kept at a facility for 5 years rather than 3 years for facilities required to use IVT. This will allow sufficient time for the EPA to carry out any necessary follow

- up verification activities with reporters, including on

- site visit s if necessary. Additionally, facilities or suppliers that fail to monitor or report GHG emissions, quantities supplied, or other data elements according to the requirements of the applicable rule subparts could be subject to enforcement action by EPA under CAA Section s 1 13 and 203

– 205. The CAA provides for several levels of enforcement that include administrative, civil, and criminal penalties. The CAA allows for injunctive relief to compel compliance and civil and administrative penalties of up to $37,500 per day per vio lation. 4 Actions (or inactions) that could ultimately be considered violations include but are not limited to the following:

 Failure to report GHG emissions for suppliers ( the emissions that would result from combustion or use of the products they supply)

.

 Failure to collect data needed to calculate GHG emissions.

 Failure to continuously monitor and test as required. Note that merely filling in missing data as specified does not excuse a failure to perform the monitoring or testing.

 Failure to calculate G HG emissions according to the methodology ( or methodologies ) specified in the rule.

 Failure to keep required records needed to verify reported GHG emissions.

 Falsification of reports.
For the reasons stated above, the EPA concludes that the alternative ve rification approach finalized today protects against fraudulent reporting. The commenter has not raised any specific issues or concerns with any of the steps the EPA has set forth regarding the alternative verification approach, identified any deficienc ies in the alternative verification approach, or explained its assertion that collecting inputs is the only viable option to avoid fraudulent reporting. We therefore reject such assertion. Regarding the commenter’s assertion that third party verification sho uld be adopted if the EPA does not collect all of the inputs to equations , the EPA previously considered third party verification and decided against implementing it. Refer to the EPA ’s full rationale for not selecting third party verification in the Octob er 30, 2009 , final rule (74 FR 56260). In Step 3 of the four

- step evaluation of potential disclosure concerns and amendments relative to the inputs to emission equations data elements at issue, the EPA reconsidered the third party verification approach and again decided it was not appropriate based on the same rationale, which continues

4 The Federal Civil Penalties Inf lation Adjustment Act of 1990, Public Law 101

– 410, 104 Stat. 890, 28 U.S.C. 2461, note, as amended by s ection 31001(s)(1) of the debt Collection Improvement Act of 1996, Public Law 104

– 134, 110 Stat. 1321

– 373, April 26, 1996, requires the EPA and other age ncies to adjust the ordinary maximum penalty that it will apply when assessing a civil penalty for a violation. Accordingly, the EPA has adjusted the CAA’s provision in Section 113(b) and (d) specifying $25,000 per day of violation for civil violations to $37,500 per day of violation.Draft Deliberative

9 to apply

. Refer to the memorandum “Evaluation of Alternative Verification Approaches For Greenhouse Gas Reporting Rule Subparts for which Reporting of Inputs to Emission Equ ations was Deferred to March 31, 2015,” August 2013 (Docket ID No. EPA

- HQ

- OAR

- 2010

- 0929), for further discussion of the EPA’s consideration of third party verification. The commenter did not raise specific issues with the EPA’s rationales for finding that the third party verification approach is in appropriate for this reporting rule

.

Commenter Name: Mark Roberts and Avipsa Mahapatra Commenter Affiliation: Environmental Investigation Agency Document Control Number: EPA

- HQ

- OAR

- 2010

- 0929

- 0082 Comment Excerpt Number: 5

Comment: Section III (A) (2) of the proposed rule, deals with EPA’s response in the event of a potential error with one of the “inputs to equations” data elements or with an annual GHG emissions value identified in the verification summary generated by the inputs verification tool, and states that the EPA “would likely follow up with the facility to determine whether an actual error has occurred

. ” If the proposed rule expects that errors will occur in the process, then the EPA should plan to verify whether in fact an error did occur and the consequences to the environment of any such error . EIA calls for stronger language and a clear indication from EPA that in such cases, there would be investigations to assure reporting is accurate. Respons e: The EPA agrees with the commenter that direct follow

- up with facilities following the EPA’s automated verification checks is an important part of data verification . As stated in Section III of the preamble to the proposed rule, the EPA anticipates that its alternative verification approach supported by these final amendments will result in more direct follow

- up with facilities than if the data elements for which reporting was deferred to 2015 were submitted to the EPA

. As such, the EPA intends to follow up with potential errors identified during the verification process. However, the types of follow

- ups may vary depending on the nature of the potential errors. In some cases, the EPA may follow up by conduct ing further verification using other reported dat a (e.g., the new data elements being added in the final amendments). In addition, t here may be instances where the EPA can complete follow

- up by reviewing the verification from the previous year (i.e., the EPA ha d previously contacted the facility about th e same or similar issue for a previous annual report , and as a result the EPA may already understand why a particular verification check yielded a certain result. ) Further , in the final rule to this action , the EPA is adding an option for facilities to add a comment associated with a given IVT verification check. This additional information w ill streamline the verification process and allow follow

- up to be more targeted. Once the annual report is submitted to the EPA and the EPA has reviewed the electronic verification summaries and other documents (e.g., annual report, past reports), if additional follow

- up is needed, the EPA will contact the facility via phone or email to inform it that a potential error has been identified. Per subpart A of P art 98, the facility then has 45 days to either demonstrate that a substantive error 5 has not occurred or to

5 40 CFR 98.3(h)(3) defines substantive error as an error that impacts the quantity of GHG emissions reported or otherwise prevents the reported data from being validated or verified. 40 CFR 98.3(h) states that once a substant ive error is identified, anDraft Deliberative

10 resubmit the annual report. If additional follow

- up is necessary, the EPA can conduct an on

- site visit. The EPA also notes that facilities or suppliers that fa il to monitor or report GHG emissions, quantities supplied, or other data elements according to the requirements of the applicable rule subparts could potentially be subject to enforcement action by the EPA under CAA Section s 113 and 203

– 205. The CAA provi des for several levels of enforcement that include administrative, civil, and criminal penalties. The CAA allows for injunctive relief to compel compliance and civil and administrative penalties of up to $37,500 per day per violation. 6

Commenter Name: Unk nown Commenter Affiliation: Illinois Institute of Technology , environmental policy class Document Control Number: EPA

- HQ

- OAR

- 2010

- 0929

- 0060 Comment Excerpt Number: 2

Comment: Will EPA do anything differently than previously with data collected under the ne w procedures? Response: It is not clear to which data the commenter is referring. As explained in Section s II.A and II I.A.1 of the proposal preamble and Section II.A.3 of the preamble to the final rule , d ata entered into IVT are not collected by the EPA

. These data are entered into IVT , but are not saved or otherwise retained in the electronic reporting system and , thus, are not “collected” by the EPA. Refer to the memorandum “Technical Approach and Design for Inputs Verification Tool,” (August 2013, Docke t ID No. EPA

- HQ

- OAR

- 2010

- 0929) and Section s II.A and III.A of the proposal preamble for more detailed discussion s of these changes in the EPA’s verification approach

. Regarding the new data being collected as part of the final amendments , the EPA will use these data to verify reported GHG emission data and to inform future GHG policy

. Refer to Section III.C of the proposal preamble for further discussion of the EPA’s planned use for these new data.

Commenter Name: Mark Roberts and Avipsa Mahapatra Comment er Affiliation: Environmental Investigation Agency Document Control Number: EPA

- HQ

- OAR

- 2010

- 0929

- 0082 Comment Excerpt Number: 2

owner or operator shall, within 45 days of receipt of the notification, either resubmit the report that, for each identified substantive error, corrects the identified substantive error (in accordance with the applicable require ments of this part) or provide information demonstrating that the previously submitted report does not contain the identified substantive error or that the identified error is not a substantive error. 6 The Federal Civil Penalties Inflation Adjustment Act of 1990, Public Law 101

– 410, 104 Stat. 890, 28 U.S.C. 2461, note, as amended by Section 31001(s)(1) of the debt Collection Improvement Act of 1996, Public Law 104

– 134, 110 Stat. 1321

– 373, April 26, 1996 , requires EPA and other agencies to adjust the ordinary maximum penalty that it will apply when assessing a civil penalty for a violation. Accordingly, EPA has adjusted the CAA’s provision in Section 113(b) and (d) specifying $25,000 per d ay of violation for civil violations to $37,500 per day of violation.Draft Deliberative

11 Comment: EPA, under section III (A) (1) of the proposed rule, should require additional information be provided detailing the checks and balances, other than real time data, to ensure that misrepresentation of actualized data does not occur during the revision process of the verification summary. Are the real

- time checks adequate to properly represent data input in a precise and confident manner? Response: The EPA wants to clarify that the Agency is not relying on real

- time IVT checks alone to ensure the accuracy of reported GHG values. The EPA’s verification approach being finalized in this action combines “real

- time” data check s conducted at the time that data are entere d into IVT with existing follow

- on checks conducted by the EPA after the annual report is submitted (as with all annual reports) , as well as additional verification that will be conducted using the additional dat a that will be reported to the EPA as required by this final action. The proposal preamble section cited by the commenter ( Section III.A.1) provides examples of real

time electronic checks that ensure the accuracy of data. In addition, o nce the annual report is submitted to the EPA , the EPA will review the electronic verification summaries and , if necessary, other documents (e.g., annual report, past reports)

. I f additional follow

- up is needed, the EPA will contact the facility to inform it that a potential substantive error has been identified. 7 Per subpart A of Part 98, the facility then has 45 days to either demonstrate that a substantive error has not occurred or to resubmit the annual report. If additional follow

- up is necessary after the EPA reviews the demonstration or the resubmitted report , the EPA can conduct an on

- site visit. As such, the EPA’s verification approach using both verification checks conducted by IVT, existing verification checks conducted after the annual report has been submitted (as with all annual reports) , and direct follow

- up with facilities ( as needed ) w ill ensure the accuracy of reported GHG values. The comprehensive nature and design of the checks described above enable the EPA to verify the accuracy of the reported emissions

.

Commenter Name: Andrew T. O ’ Hare Commenter Affiliation: Portland Cement Association Document Control Number: EPA

- HQ

- OAR

- 2010

- 0929

- 0067 Comment Excerpt Number: 3

Comment: PCA members have been tracking GHG emissions from their faciliti es since the late 1990s, long before promulgation of EPA’s MRR for GHGs. In comments submitted on May 17, 2013 in response to a previous round of proposed revisions to the MRR for GHGs, PCA stated that it opposed independent calculation of emissions data b y EPA pursuant to filed emissions reports. In the current proposal, EPA proposes the use of a program within the e

- GGRT to calculate and verify reported emissions. As stated in comments submitted on May 17, cement makers oppose the denial of “authority to calculate emissions from facilities over which it is

7 40 CFR 98.3(h)(3) defines substantive error as an error that impacts the quantity of GHG emissions reported or otherwise prevents the reported data from being validated or verified. 40 CFR 98.3(h) sta tes that once a substantive error is identified, an owner or operator shall, within 45 days of receipt of the notification, either resubmit the report that, for each identified substantive error, corrects the identified substantive error (in accordance wit h the applicable requirements of this part) or provide information demonstrating that the previously submitted report does not contain the identified substantive error or that the identified error is not a substantive error.Draft Deliberative

12 responsible for compliance with PSD permits, among other requirements.” Furthermore, EPA conceded in the prior rulemaking that independent calculation of emissions reports has the disadvantage of denying the regulated entity autonomy to calculate its emissions. Mandatory generation of a verification report, using software within the e

- GGRT, is a recordkeeping requirement similar to the proposal rejected per the comments filed on May 17, 2013. Use of the
v erification also undermines regulatory certainty, raising the possibility of disparities between calculations generated by the verification tool, and data generated by the regulated community. This will require establishment of a process for harmonization of the data and methodologies, possibly causing permitting delays, and an inability to compare data from year

- to

- year in a timely manner. Response: The EPA disagrees with the commenter that the IVT tool denies reporters authority to calculate emissions. As a verification tool, IVT conducts emission calculations using the equations and methodologies required by P art 98, which are built into IVT. However, when using IVT, reporters will maintain the authority over the submitted emissions report and have the op portunity to review and certify their own emissions. IVT is programmed to allow the reporter to override the EPA’s calculated GHG emission value with the reporter’s calculated GHG emission value. As a result, the EPA’s verification of reported GHG values d oes not inhibit the reporter’s autonomy to report their GHG emissions. IVT allows the EPA to verify the emissions reported by comparing the value calculated by IVT to the value reported by the facility. The commenter expressed concern that this verification process may result in the possibility of disparities existing between calculations generated by the verification tool and data generated by the regulated community. However, this potential concern is not unique to the IVT process; in any verif ication process, whether IVT or another process, it could be possible to find disparities between reported emissions and other emission indicators used in the process to verify the reported emissions. The very purpose of a verification process is to identi fy and resolve disparities or other issues regarding the reported emissions. The commenter generally asserts that the verification will undermine regulatory certainty, possibly causing permitting delays and an inability to compare data. However, the commen ter provides no supporting facts or specific examples for us to evaluate. Without a more detailed explanation about why the commenter believes that permitting delays could occur, we are unable to address the commenter’s concerns. Thus, we are not providing a specific response to the commenter’s alleged concerns relating to the potential for permitting delays. With regard to the commenter ’ s assertion that the EPA conceded in a previous rulemaking that “that independent calculation of emissions reports has th e disadvantage of denying the regulated entity autonomy to calculate its emissions , ” the EPA believes that the commenter is referring to a discussi on in a preamble published on April 2, 2013 ( 78 FR 19802 ) , which is related to the possibility of the EPA upd ating reported emissions to incorporate updated global warming potential values , for the p urpose of publication, after reports have been submitted to the EPA. This topic is unrelated to the use of IVT , which occurs prior to the report being submitted. As
s tated above, when using IVT, reporters will maintain the authority over the submitted emissions report and have the opportunity to review and certify their own emissions. IVT is programmed to allow the reporter to override the EPA’s calculated GHG emission value with the reporter’s calculated GHG emission value.Draft Deliberative

13 Commenter Name: Andrew T. O ’ Hare Commenter Affiliation: Portland Cement Association Document Control Number: EPA

- HQ

- OAR

- 2010

- 0929

- 0067 Comment Excerpt Number: 4

Comment: PCA members, however, do no t support EPA’s proposed use of a software program to generate “verification reports” for data submissions, beginning in 2014. PCA is concerned that federal regulators are applying the verification report requirement in an arbitrary fashion. EPA’s initial Mandatory Reporting Rule (MRR) for Greenhouse Gases applies to 30 source categories and relevant subparts. The latest CBI proposal, however, only applies to 24 out of the 30 relevant subparts, which would impose uneven recordkeeping and reporting requireme nts. Response: As explained in both the preambles to the proposed and final rules and elsewhere in this response to comment document, we are amending the reporting and recordkeeping requirements in certain P art 98 subparts ( that had inputs to equations whose reporting deadline was deferred to 2015 ) to address potential disclosure concerns while maintaining the EPA’s ability to verify the accuracy of data reported under those subparts

. The commenter did not raise issues or concerns with any aspect of the EPA’s four

- step evaluation 8 that served as the basis for this rule

- making or the amended requirements, but simply objected that the amendment would impose uneven recordkeeping and reporting requirements. B eca use potential disclosure concerns were not ident ified in all P art 98 subparts (see Section I. D of the preamble), it would be unnecessary, and in fact arbitrary, to also amend the existing reporting and recordkeeping requirements in subparts with n o potential disclosure concerns, as the commenter appears to suggest.



### 2.0 Use of Input s Verification Tool for Certain Subpart C Sources

2.1 Revision of 40 CFR 98.36(f)

Commenter Name: Paul Noe and Robert Glowinski Commenter Affiliation: American Forest and Paper Association/American Wood Council Document Control Numb er: EPA

- HQ

- OAR

- 2010

- 0929

- 0083 Comment Excerpt Number: 4

Comment: EPA has proposed that inputs to equations for some data elements used by Stationary Fuel Combustion Units may pose CBI issues and should not be submitted to the Agency, but may be handled thr ough the Verification Tool. AF&PA and AWC agree with that approach. EPA has tried to differentiate between those units that sell power into the electricity grid and those that do not, based on the Agency’s analysis that those who sell power into the grid a re

8 Please see Section I.C of the preamble for additional information on the four

- step evaluation.Draft Deliberative

14 already providing fuel specific information to the public. However, AF&PA and AWC believe that the language used in the proposal needs to be reviewed. Specifically, the phrase “granted access by the Public Utilities Commission to deliver power to the lo cal or regional electric power grid” is unnecessarily vague and may result in confusion or over

- broad inclusion of units that may not take advantage of the CBI protections contemplated in this proposal. There are a large number of jurisdictions that have e ither deregulated power sales from such units completely or imposed only registration and other requirements of a ministerial nature on such units. On the other hand, some states engage in direct price and other regulation of vertically integrated and othe r utility operations that grant or restrict franchise rights. It is not clear what level of regulation or lack thereof constitutes a “grant of access” under the rule. All units, regardless of type or regulatory regime, require “access” to a local or region al grid in some form to make off site sales of power, giving rise to the concern that without further clarity the definition could be improperly interpreted to which fuel powered unit making sales may protect their fuel information through CBI coverage.

To avoid such improperly broad interpretations, AF&PA and AWC recommend the Agency clarify that only units subject to regulation as “public utilities” under the laws and regulations of a given state, (as opposed to those under Federal regulation or not other wise subject to state utility commission oversight of operations and rates as “public utilities”) should be considered as having been “granted access by the Public Utilities Commission to deliver power to the local or regional electric power grid.”

Further more, EPA assumes that if information is provided to public utility commissions (PUC)

-- or similar institutions

-- that information is available to the public. However, EPA must clarify how it will address such information if the PUC treats that informati on as CBI or it is otherwise not available to the public. Response: The EPA thanks the commenters for their support of IVT. The EPA has reviewed the commenter’s concerns regarding which electric utilities are captured by 40 CFR 98.36(f) (1) , and after furth er evaluation, has revised the final text in 98.36(f) (1)

. See Section II.A.3 of the preamble to the final rule for a detailed response to this comment.

Commenter Name: Jeff Applekamp Commenter Affiliation: Gas Processors Association Document Control Number: EPA

- HQ

- OAR

- 2010

- 0929

- 0070 Comment Excerpt Number: 7

Comment: EPA is proposing to add a new paragraph 98.36(f) which requires owner and operators to report if each stationary fuel combustion source meets the conditions of the proposed 98.36(f)(1) an d (2). This is a brand new reporting element, and most Subpart C facilities will not be resubmitting reports from reporting years 2010

- 2013. Thus, this language must be modified to have an applicability date; otherwise, previously submitted reports will be out of compliance with the rule:Draft Deliberative

15 “(f) Beginning reporting year 2014, each Each stationary fuel combustion source (e.g., individual unit, aggregation of units, common pipe, or common stack) subject to reporting under paragraph (b), (c), or (d)(2) of this s ection must indicate if both of the following two conditions are met:

1. The stationary combustion source contains at least one combustion unit connected to a fuel

- fired electric generator that has been granted access by the Public Utilities Commission to del iver power to the local or regional electric power grid (excluding generators that are connected to combustion units that are subject to subpart D of this part).
2. The stationary fuel combustion source is located at a facility for which the sum of the namepl ate capacities for all electric generators specified in paragraph (f)(1) of this section is greater than or equal to 1 megawatt electric output.” Response : The EPA disagrees with the comment that the date when new requirements go into effect needs to be sp ecified in each place in the regulatory text where a new requirement is added. The effective date of each regulation is sufficient to indicate when new requirements that are added to Part 98 must be reported.

2.2 Use of Input s Verification Tool for Certain Subpart C Sources That Do Not Meet the Criteria Specified in 40 CFR 98.36(f)

Commenter Name: Niki Wuestenberg Commenter Affiliation: Republic Services Document Control Number: EPA

- HQ

- OAR

- 2010

- 0929

- 0077 Comment Excerpt Number: 1

Comment: Republic appreciat es EPA’s commitment to ensure CBI data is properly handled. However, we must point out to EPA that Republic and reporters under Subpart HH did not claim CBI data, and it appears EPA did not take into consideration how to address this scenario. As written, the proposed rule requires reporters who did not claim CBI to use a data input verification tool “IVT” to preserve data elements that are not considered CBI for their business. There is no option to just allow the reporter to submit the data element that i s claimed to be CBI instead of using the IVT. As proposed, Republic would be required to undertake the burden of using the IVT to report a single data element that compromises less than 1% of our overall CO2e emissions reported under the GHGRP. This additi onal work required to accommodate less than 1% of our emissions data seems extreme, considering, as stated above, this was not claimed as CBI by our company/industry sector. It is important to note that the only reason that Republic, as well as the rest of the solid waste industry, reports under Subpart C is due to applicability under Subpart HH. Thus, the Subpart C emissions associated with the majority of Republic landfills are from very minor sources. Hence, Republic, as well as the rest of the solid was te industry, generally use Subpart C, Tier 1 methodology, specifically equation C

- 1, to report these minor Subpart C emissions. Ironically, while the C

- 1 emissions equation only has a single data element that is deferred under CBI, thisDraft Deliberative

16 data element can be easily back

- calculated from the result of the C

- 1 equation since the deferred element (fuel) is the ONLY non

- default value in the C

- 1 equation. With the ability to back

calculate a deferred data element so easily, it seems like a useless effort to undergo the IVT just to have the semblance of confidentiality. Republic recommends that EPA exclude Subpart C, Tier 1 equations from consideration as either CBI or deferred, due to the fact that the data has already been reported to the GHGRP. With specific regar d to the “deferred” status of this data element, EPA could modify the proposal to allow us to maintain the records as a part of the facility Monitoring Plan since the EPA can determine the fuel quantity based on the data already provided. Maintaining this data is already required pursuant to Subpart A §98.3(g)

– Recordkeeping. An alternative approach would be to report the deferred data under Tier 1 Equation C

- 1. This approach creates additional burden for data that is already available but could be impleme nted as proposed for the deferred data elements that must be reported in the 2014 reporting year annual report. The equation C

- 1 previous year’s fuel combustion quantity data could be uploaded via XML in the annual report as a part of the 2014 annual repor t to prevent revising, re

- certifying and re

- submitting previous reporting year’s. Response: The EPA wants to clarify that the Agency has not made confidentiality determinations for any inputs to emission equations either in this final rule or any other fin al action , nor does this rule address handling of CBI data

. With respect to the specific comment on 40 CFR 98.36(f), please s ee Section II.A.3 of the preamble to the final rule for the EPA’s response to this comment. Regarding the comment er’s suggestion that the EPA not collect th is data because the EPA can back

- calculate it , the EPA needs this data to verify the reported emissions values. The fact that the EPA can back

- calculate th is data using the reported emission does not inform the EPA of the accura cy of the reported em i ssions. The EPA therefore rejects the suggestion that it require only recordkeeping of this data element. However, the EPA accepts the suggestion to allow reporters the option of report ing this data element instead of using IVT. Pleas e see Section II.A.3 for a more detailed response to this suggestion . Because this data element cannot always be back

- calculated, depending on which tier and fuel a reporter uses, the EPA believes that potential disclosure concerns still remain. In light o f the above, the EPA provides reporters the option of using IVT or reporting the data element.

Commenter Name: Kerry Kelly Commenter Affiliation: Waste Management Document Control Number: EPA

- HQ

- OAR

- 2010

- 0929

- 0090 Comment Excerpt Number: 1

Comment: Although Subpart HH reporters did not claim CBI for any data elements, the proposal forces us to use the verification tool because of one data element

– Quantity of Fuel Combusted. WM maintains that it is inappropriate to require us to use the “data inputs verification tool” to report a single data element that we did not claim as confidential business information (CBI), and is already available to the EPA by making a simple calculation from the result of the emissionsDraft Deliberative

17 equation used for reporting. Under Sub part C, the Tier 1 reporting equation (equation C

- 1), is most widely used by the landfill sector to report de minimis emissions from small stationary combustion sources. This Tier 1 equation comprises only three variables. Two of the variables are default values provided in Table C

- 1 of Subpart C. The remaining variable is the mass/volume of fuel combusted during the year, which is a deferred data element. The Agency can easily obtain the deferred data element by back calculating it from the reported equati on result. Since the information is so easily available to the Agency, we do not believe that it qualifies as a deferred data element. Finally, we are very willing to report the quantity of fuel combusted by each stationary source to the Agency, and would be happy to include it in our XML upload. WM urges EPA to exclude Subpart C Tier 1 reporters from the requirement to use the verification tool to supply merely one data element to the Agency. WM recommends EPA streamline reporting for Subpart C Tier 1 repo rters. We suggest EPA exclude Tier 1 reporters from being required to use the verification tool to report source fuel quantity. This information can be much more readily provided by including it in the e

- GRRT web form or XML schema; requiring reporters to maintain records of fuel quantity in accordance with the facility Monitoring Plan; or better yet, the Agency can calculate it from the reported result and default variables in the Tier 1 equation. Our recommendation to streamline reporting for Subpart C Ti er 1 reporters is further supported by the de minimis nature of these emissions. For landfill reporters under Subpart HH, Subpart C Tier 1 emissions comprise one percent or less of total CO2e emissions. Response: See Section II.A.3 of the preamble to the f inal rule and the EPA’s response to comment EPA

- HQ

- OAR

- 2010

- 0929

- 0077, Exce r pt 1.

Commenter Name: Sharon H. Kneiss and John Skinner Commenter Affiliation: National Waste/Recycling Association/Solid Waste Association of North America Document Control Numb er: EPA

- HQ

- OAR

- 2010

- 0929

- 0076 Comment Excerpt Number: 1

Comment: Our associations’ members include landfill reporters for hundreds of landfill facilities. Many facilities report on hundreds of elements requiring thousands of total elements. The reports are complex requiring the use of XML format for individual facility

- by

- facility uploading to e

- GGRT. Landfills are required to report their greenhouse gas (GHG) emissions in accordance with Subpart HH of the GHG MRR. Many of these facilities also report de mi nimis emissions under Subpart C. The National Waste & Recycling Association and SWANA recommend the EPA streamline reporting for Subpart C Tier 1 reporters by exempting them from using the “data inputs verification tool” to report source fuel quantity.Draft Deliberative

18 Lan dfill reporters have not claimed that any data elements are confidential. Nonetheless, the GHG CBI requires use of the verification tool because of one data element, “Quantity of Fuel Combusted.” The verification tool was designed to protect confidential b usiness information (CBI). However, the calculation utilizes only one variable that is not default. Therefore, the EPA can back calculate the variable from the emissions reported. Because the information can be accessed, we do not believe that it is protec ted. Our members are willing to report the quantity of fuel combusted for each stationary source and can include it with their GHG report. The verification tool will be unnecessarily complex for landfill reporters. Landfill reporters will have to develop a n additional XML report, using a separate schema, and then upload each report for EPA approval. Only after EPA approves the verification submittal can they proceed with downloading a “Record of Equation Inputs,” followed by submittal of the GHG report. Thi s two

step process potentially will delay reporting and possibly compromise some landfill reporter’s ability to comply with the GHG MRR. In the past, the EPA delivered the XML schemas and instructions very late in the reporting cycle, leaving landfill repo rters without all the necessary instructions for reporting until late February, making it difficult to meet the March 31 reporting deadline.

The e

- GRRT system is often inoperable for lengthy periods because many reporters attempt to access the system simul taneously. This further complicates reporting. The recommendation to streamline reporting is further supported by the de minimis nature of these emissions. For landfill reporters under Subpart HH, Subpart C Tier 1 emissions generally account for less than one percent of their total GHG emissions. Response: See Section II.A.3 of the preamble to the final rule and the EPA’s response to comment EPA

- HQ

- OAR

- 2010

- 0929

- 0077, Exce r pt 1.



### 3.0 Input s Verification Tool

— Schedule for Releasing

Commenter Name: Jeff Applekamp Commenter Affiliation: Gas Processors Association Document Control Number: EPA

- HQ

- OAR

- 2010

- 0929

- 0070 Comment Excerpt Number: 3

Comment : Beginning in 2014, reporting entities would be required to use the EPA provided electronic inputs verification tool. Th e verification tool is purported to calculate GHG emissions and this calculated number would be reported unless the reporting entity overrides the number. This would show up in the report as an “override”. Similar to past launches of e

- GRRT and e

- GGRT upda tes, we expect a full sandbox testing environmen t (including XML) to be available for all applicable subparts of the inputs verification tool by the summer of 2014 so that errors can be corrected in a timely manner. We require that the inputs verification tool be fully functional before January 1, 2015 . ReportersDraft Deliberative

19 must undergo an extensive amount of work and software development so that our systems accurately “synch” to e

- GGRT . This will be especially true in 2015 where we are synching with a new version of e

- GGRT with a verification tool and we are reporting many new elements for not just one year of data, but for up to five years of data . In the past, the EPA has provided industry just a handful of weeks before the reporting deadline to update all our data systems, input all of our data into e

- GGRT, correct any errors, complete internal reviews of the reports, and to submit all reports. This short timeframe wa s extremely challenging in past years, and it will be unacceptable for the EPA to provide another short timeframe in 2015 , especially given the very long timeframe the EPA has had for addressing these CBI issues. To build assurances for the EPA and industr y, we propose that the EPA should include language in Subpart A to indicate that for each day past January 1, 2015 that the upgraded e

- GGRT is not available, the reporting deadline will be extended by one day. Response: See Section II.A.3 of the preamble to the final rule for the EPA’s response to this comment

.

Commenter Name: Leslie Sue Ritts Commenter Affiliation: National Environmental Development Association ’ s Clean Air Project Document Control Number: EPA

- HQ

- OAR

- 2010

- 0929

- 0075 Comme nt Excerpt Number: 5

Comment: To ensure the integrity of the information and the adaptation of the eGGRT verification modules involved, we would suggest that over the coming year, EPA allow individual companies to beta

- test the reporting system for their industries. This would allow issues with programs involving statistical conventions and/or other information to be resolved, or at least identified, before reports actually become due. Because of EPA’s investment in the system, we believe that many industr ies will be happy to volunteer to use to protocol to compare emission calculations with existing tool with the proposed verification tool. These trials could provide important information resolving the need to “over

- ride” certain data inputs, which the pro posal currently recognizes as a possibility. Response: See Section II.A.3 of the preamble to the final rule for the EPA’s response to this comment.Draft Deliberative

20 Commenter Name: Charles Johnson Commenter Affiliation: Aluminum Association Document Control Number: EPA

- H Q

- OAR

- 2010

- 0929

- 0086 Comment Excerpt Number: 2

Comment: We request the opportunity to “pilot test” the Subpart F verification tool well in advance of the proposed March 31, 2015 reporting date. A pilot test would allow for any errors or bugs in the softwar e calculations to be corrected prior to its initial use for GHG report verification. A similar pilot test should also be offered for Subpart C verification tool. Response: The EPA agrees with the commenter that stakeholders would benefit from the opportuni ty to test IVT for all applicable subparts prior to the beginning of reporting for reporting year 2014. Please see Section II.A.3 of the preamble to the final rule for further discussion of the sandbox testing period and how it will allow reporters suffici ent time to sync their systems with IVT.

Commenter Name: Karen Ritter Commenter Affiliation: API Document Control Number: EPA

- HQ

- OAR

- 2010

- 0929

- 0074 Comment Excerpt Number: 17

Comment: With the expiration of the deferral for some Subparts and the addition of the Verification Tool for others, it is critical for EPA to recognize that additional time will be needed from the date that EPA opens the system for annual reporting to the due date for the completed reports on March 31, 2015. In addition to calendar y ear 2014 reporting that would be due on that day, all “inputs to equation” data elements for Subpart W (and Subpart II) would need to be reported for reporting years 2011, 2012, and 2013. For other subparts, reporters would concurrently have to provide ann ual reporting data as well as utilize the Verification Tool for “inputs to equations” data. Reporters will need more than the 3 months EPA has previously provided to complete the additional reporting required by March 31, 2015. API requests that EPA consider opening the system for a more extensive testing period during 2014 to allow testing of data elements that are relevant to all applicable Subparts that would be using the data Verification Tool. It is especially critical that EPA engage with indust ry in setting up the verification ranges to ensure that the ranges selected are technically sound and relevant to the respective Subparts. API contends that it would be less burdensome to do it right from the start rather than have to do it over due to err oneous scope of the verification tables that are used in the electronic tool. Response: Regarding the comment that the EPA should offer an extensive testing opportunity , the EPA agrees with the commenter that stakeholders would benefit from the opportunity to test IVT for all applicable subparts prior to the beginning of reporting for reporting year 2014. See Section II.A.3 of the preamble to the final rule for the EPA’s response to this comment.Draft Deliberative

21 Regarding the comment that reporting year 2014 will be an unu sually busy year due to back

reporting inputs to equations for which disclosure concerns were not identified for reporting years 2010 through 2013, and that reporters will need more time than usual to prepare their annual report , see Section II.A.3 of the preamble to the final rule for the EPA’s response to this comment. Regarding the comment that industry should be involved in setting IVT ranges, as is the case for all reasonable ranges used as part of the electronic verification process for the GHGRP , the EPA will set initial ranges and will continually refine ranges as additional information is obtained. We
see no reason to deviate from this approach for the IVT ranges . In any event, r eporters may provide feedback on the ranges set in IVT during the “sand box” testing period or any time thereafter. For further information on the setting of ranges, please see Section II.A.3 of the preamble to the final rule.

Commenter Name: Robert A. Reich Commenter Affiliation: DuPont Document Control Number: EPA

- HQ

- OAR

- 2010

- 0929

- 0071 Comment Excerpt Number: 5

Comment: EPA should make the final inputs verification tool available early enough to allow users to complete the verification process prior to the regular e

- GGRT data upload. Response : See Section II.A.3 of the preamble to the final rule for the EPA’s response to this comment.

Commenter Nam e: Niki Wuestenberg Commenter Affiliation: Republic Services Document Control Number: EPA

- HQ

- OAR

- 2010

- 0929

- 0077 Comment Excerpt Number: 3

Comment: In order for the IVT system to be effective, reporters would need to have an extensive sandbox testing that includes XML in a timely manner. The IVT tool would need to be fully functional without errors or corrections by no later than the end of 2014 to allow users time for e xtensive internal software development for our systems to sync with e GGRT. Based on past experience with EPA delivering schemas and instructions late in the reporting cycle, we have concerns of having the necessary information to meet the March 31 st repor ting deadline using the IVT tool. The additional upload process with using IVT will cause additional burden to reporters while overwhelming the e

- GGRT system that has previously had issues during high volume usage periods. Response: See Section II.A.3 of t he preamble to the final rule for the EPA’s response to this comment.Draft Deliberative

22 Commenter Name: Lorraine Krupa Gershman Commenter Affiliation: American Chemistry Council 9 Document Control Number: EPA

- HQ

- OAR

- 2010

- 0929

- 0085 Comment Excerpt Number: 9

Comment: In looki ng forward, we encourage EPA to release the final inputs verification tool early enough to allow users to complete the verification process prior to the regular e

- GGRT data upload. For large or complex facilities, the verification process appears to be len gthy, and these facilities will want to ensure the verification report is correct prior to the e

- GGRT upload. Response: The EPA notes that t he data verification associated with IVT occurs while the user is actively using e

- GGRT. Some of the verification ch ecks conducted on the inputs to equations in IVT use data that are reported in the annual report (and therefore entered into e

- GGRT). As such, the verification summary produced by IVT is generated immediately prior to annual report submittal, once data entry in e

- GGRT is complete. In response to the commenter’s concern about having enough time to complete data entered into IVT, p lease see Section II.A.3 of the preamble to the final rule for the EPA’s response to this comment.

Commenter Name: Leslie Sue Ritts Commenter Affiliation: National Environmental Development Association ’ s Clean Air Project Document Control Number: EPA

- HQ

- OAR

- 2010

- 0929

- 0075 Comment Excerpt Number: 3

Comment: On a more specific point, NEDA/CAP supports implementation of the rule in the 2014 reporting year. Id. at 55999/3 Even if the proposal is finalized quickly, we believe that data inputters will require some time with the program in order to utilize its new features. They also will need time to develop internal company procedures for safeguarding the data used as inputs into equations and then deleted before MRR submissions, which the proposal would require to be kept for five years. Response: Regarding the comment that reporters will need some time with IVT to familiarize themse lves with its features , the EPA agrees with the commenter that reporters would benefit from an opportunity to view and test IVT for their applicable subparts prior to the beginning of reporting for reporting year 2014. See s ection II.A.3 of the preamble to the final rule for further discussion of the EPA’s plans for sandbox testing of IVT. Regarding the comment that reporters using IVT will need extra time to develop internal company procedures for safeguarding data input into IVT , the reporters are already required to

9 This comment was also supported by Dow (Docket I D No. EPA

- HQ

- OAR

- 2010

- 0929

- 0068).Draft Deliberative

23 keep records of the inputs. To the extent that any reporter considers any internal procedure is necessary to safeguard the inputs , we expect such a procedure would or should have already been developed. Today’s final rule simply requires that a ll inputs to emission equations that are entered into IVT be included in a file generated by IVT to be retained as a record. Reporters may retain this file in any format. The EPA does not anticipate that it will take reporters an y additional time to make arrangements to keep records of this file , nor did the commenter explain why its current recordkeeping practice for the deferred inputs cannot apply to this file

.


### 4.0 Pilot Input s Ver i fication Tool

4.1 Pilot Inputs Verification Tool

—Adeq uacy for Public Comment

Commenter Name: Karen Ritter Commenter Affiliation: API Document Control Number: EPA

- HQ

- OAR

- 2010

- 0929

- 0074 Comment Excerpt Number: 13

Comment: EPA has provided a pilot Verification Tool for sandbox testing. However, it is limited only to the Mass Balance Methodology under Subpart X, which is of very limited value. API requests that EPA make sandbox testing available for all of the Subparts, similar to the e

GGRT testing that EPA conducted in 2012, to draw broader conclusions on the operation of the Verification Tool. Response : T he EPA disagrees with the comments that the pilot verification tool provided at proposal for the mass balance methodology in subpart X was of limited value for assessing the burden and ease of use for other m ethodologies and subparts required to use IVT. This prototype allowed reporters to review the overall design, structure, and functionality of IVT, which applies to all subparts that are to use the tool. Refer to Section II.A.3 of the preamble for further d iscussion of the usefulness of the prototype for public comment. Refer to Section s 4.3 and 5.1 of this document for the specific and general public comments provided to the EPA , based on the prototype tool, regarding IVT design and functionality. Regarding the comment that the EPA should allow sandbox testing for all subparts included in IVT , the EPA agrees with the commenter that stakeholders would benefit from the opportunity to test IVT for all applicable subparts prior to the beginning of repor ting for reporting year 2014. See Section II.A.3 of the preamble to the final rule for the EPA’s response to this comment.

Commenter Name: Wade Foster, Manager, Scientific Programs Commenter Affiliation: The Fertilizer Institute Document Control Number: EPA

- HQ

- OAR

- 2010

- 0929

- 0064 Comment Excerpt Number: 2

Comment: EPA provided a beta verification tool for Subpart X for public testing. TFI members have accessed the Subpart X tool, but because it has different data elements and equations thanDraft Deliberative

24 present in Subp arts G, V and Z, we are unable to offer any feedback on the tool. We suggest that EPA develop a beta reporting tool for Subpart V, provide TFI access to that tool, and repropose the Subpart V verification tool to allow TFI and its members the opportunity t o provide public comment on same. A single GHGRP subpart beta verification tool, when 27 source categories are affected by EPA’s GHGRP Proposal, does not suffice to inform the regulated community regarding the burdens associated with EPA’s GHGRP Proposal. Response: The prototype tool for subpart X allowed reporters to review the overall design, structure, and functionality of IVT, which applies to all subparts that are to use the tool. Refer to Section II.A.3 of the preamble for further discussion of the us efulness and adequacy of the prototype for public comment. The EPA agrees with the commenter that reporters would benefit from an opportunity to view and test IVT for their applicable subparts prior to the beginning of reporting for reporting year 2014. Se e Section II.A.3 of the preamble to the final rule for further discussion of the EPA’s plans for sandbox testing of IVT.

Commenter Name: Glenn E. Davis Commenter Affiliation: HelperBroom LLC

— Mississippi Lime Document Control Number: EPA

- HQ

- OAR

- 2010

- 0929

- 0069 Comment Excerpt Number: 1

Comment: MLCO joins the NLA in requesting release of IVT functions (subpart S) that lime plants will actually be required to use for evaluation and testing before this rulemaking is formally closed and finalized.

MLCO has acc essed the "pilot" inputs verifier tool for Petrochemical Production (subpart X), in an effort to learn how the IVT functions in practice. This model tool is of limited use to MLCO as the petrochemical production sector and the inputs to equations are quite different and do not permit MLCO to see exactly how its lime industry data will be treated. While the functionality matched the USEPA's pilot presentation, MLCO could not compare results of the calculations in the IVT based on entered data with internal e xcel spreadsheet calculations. It would be helpful to permit MLCO to conduct a trial of its reporting under subpart S, as well as under subpart C (fuel combustion), to determine if the IVT calculates emissions correctly. MLCO requests USEPA to release a tr ial IVT protocol for subpart S and subpart C to permit true evaluation, testing, and informed input on how the system will work in the lime industry. Response: The EPA agrees with the commenter that reporters would benefit from an opportunity to view and t est IVT for their applicable subparts prior to the beginning of reporting for reporting year 2014. See Section II.A.3 of the preamble to the final rule for further discussion of the EPA’s plans for sandbox testing of IVT.Draft Deliberative

25 Commenter Name: Robert A. Reich Commenter Affiliation: DuPont Document Control Number: EPA

- HQ

- OAR

- 2010

- 0929

- 0071 Comment Excerpt Number: 4

Comment: It appeared that the tool was reasonably simple to use and not excessively burdensome. Unfortunately, the only testing option available was the mass balance methodology in Subpart X, which is not as commonly used as the alternative combustion

- based calculation methodology, and

– furthermore

– is not similar to the reporting methodologies for Subparts L or EE, and is certainly not as complex as the requirements for Subpart L. Therefore, it is difficult to be completely assured as to the ease of use or level of burden that will be imposed on reporting verification under other subparts. We recommend that additional time be provided by the Agency t o enable testing of the tool under all other subparts for which the tool will be applicable. Response: The EPA notes that the in puts to emission equations whose reporting deadline was deferred until 2015 for subpart L are being finalized in a separate fina l action. Regarding the portion of the comment relating to subpart EE , t he prototype tool for subpart X allowed reporters to review the overall design, structure, and functionality of IVT, which applies to all subparts that are to use the tool. Refer to Se ction II.A.3 of the preamble for further discussion of the usefulness of the prototype for public comment. The EPA agrees with the commenter that reporters would benefit from an opportunity to view and test IVT for their applicable subparts prior to the be ginning of reporting for reporting year 2014. See Section II.A.3 of the preamble to the final rule for further discussion of the EPA’s plans for sandbox testing of IVT.

Commenter Name: Peter Pagano Commenter Affiliation: American Iron and Steel Institute 10 Document Control Number: EPA

- HQ

- OAR

- 2010

- 0929

- 0072 Comment Excerpt Number: 5

Comment: While AISI disagrees with the use of the third

- party verification tool proposed, we did access and review the “pilot” verification tool EPA made available for industry. AISI found the tool ineffective for determining its appropriateness for the reporting required for iron and steel facilities subject to Subpart Q (or other relevant Subparts, such as Subparts C and Y), as the pilot was limited to Subpart X, Petrochemical Production. EPA, therefore, should not view information or feedback gleaned from the pilot as definitive of its usefulness or viability for any other industrial sector. Accordingly, AISI asks that EPA not use such information to inform any aspect of the fi nal rule as only one affected industrial sector was able to attain an accurate representation of how the tool would work for its operations. Response: The EPA notes that the verification approach that was proposed and is being finalized in this action is n ot managed by a third party; rather it is managed by the EPA. The prototype tool for subpart X allowed reporters to review the overall design, structure, and functionality of

10 This comment was also supported by United States Steel Corporation (Docket I D No. EPA

- HQ

- OAR

- 2010

- 0929

- 0078).Draft Deliberative

26 IVT, which applies to all subparts that are to use the tool. Refer to Section II. A.3 of the preamble for further discussion of the usefulness of the prototype for public comment.

Commenter Name: David Friedman Commenter Affiliation: American Fuel and Petrochemical Manufacturers Document Control Number: EPA

- HQ

- OAR

- 2010

- 0929

- 0080 Commen t Excerpt Number: 2

Comment: W e have concerns regarding implementation of the proposed reporting requirements. First, while AFPM supports EPA’s development of a “pilot” program to demonstrate how the tool will work within EPA’s Electronic Greenhouse Gas Re porting Tool (“e

- GGRT”), we are concerned that the pilot program is too limited. The pilot program applies solely to the Mass Balance Methodology under Subpart X (Petrochemical Production), which is of limited value to only a portion of AFPM members. Provi ding complete access to the pilot tool for all affected subparts is critical to ensuring that confidential “inputs to emissions equations” data will be protected from disclosure. However, by limiting the pilot program to the Mass Balance Methodology under Subpart X, EPA has not allowed all affected sectors to fully test the verification tool. We urge EPA to expand access to the pilot program to all affected industry sectors and to allow additional time to test the verification tool, both for Subpart X and f or additional industry sectors. Smooth implementation of the verification tool is critical to protecting CBI data from inadvertent disclosure and EPA must allow as much time as possible for affected industry sectors to test the tool and ensure that any err ors are corrected before reporting requirements take effect. Response: The prototype tool for subpart X allowed reporters to review the overall design, structure, and functionality of IVT, which applies to all subparts that are to use the tool. Refer to Se ction II.A.3 of the preamble for further discussion of the usefulness of the prototype for public comment. The EPA agrees with the commenter that reporters would benefit from an opportunity to view and test IVT for their applicable subparts prior to the be ginning of reporting for reporting year 2014

. See Section II.A.3 of the preamble to the final rule for further discussion of the EPA’s plans for sandbox testing of IVT.

Commenter Name: Lorraine Krupa Gershman Commenter Affiliation: American Chemistry Council 11 Document Control Number: EPA

- HQ

- OAR

- 2010

- 0929

- 0085 Comment Excerpt Number: 2

Comment: Several ACC members were able to use the “pilot” inputs verification tool, and based on their experiences we provide the following feedback. For the majority of members, the

11 This comment was also supported by Dow (Docket I D No. EPA

- HQ

- OAR

- 2010

- 0929

- 0068).Draft Deliberative

27 testing options for the “pilot” tool were very limited, as it was only applicable to the mass balance methodology in Subpart X, which is not as commonly used as the alternative combustion

- based calculation methodology. As a result, ACC members did not have much data to run through the “pilot” tool. It would be helpful if EPA allowed additional time for testing and expanded the scope to include more broadly used subparts, particularly Subpart C. Response: The prototype tool for subpart X allowed reporters to review the overall design, structure, and functionality of IVT, which applies to all subparts that are to use the tool. During the public comment period, the EPA provided sample data that could be used for testing IVT. Refer to Section II.A.3 of the preamble for further discussion of the usefulness and adequacy of the prototype for public comment. The EPA provided sample data to use to test IVT. The sample data provided allowed the facility to review, test, and provide feedback on IVT, and add itional data were not needed. The EPA agrees with the commenter that reporters would benefit from an opportunity to view and test IVT for their applicable subparts prior to the beginning of reporting for reporting year 2014. See Section II.A.3 of the pream ble to the final rule for further discussion of the EPA’s plans for sandbox testing of IVT.

Commenter Name: William C. Herz Commenter Affiliation: National Lime Association 12 Document Control Number: EPA

- HQ

- OAR

- 2010

- 0929

- 0089 Comment Excerpt Number: 3

Comment: EPA proposes that confidential business information will not be directly reported to EPA, but rather facilities will uses an “electronic inputs verification tool,” and would also be subject to certain recordkeeping and reporting requirements.

NLA generally supports this approach, but has some concerns about the verification tool. EPA has released a “pilot” inputs verification tool for only one subpart, subpart X (Petrochemical Production), to demonstrate how the tool would function. This model tool is of limited use to sectors other than petrochemical production, and NLA requests that the tool that lime plants will actually be required to use be released for evaluation and testing before this rulemaking is formally closed and finalized.

At a minimum , EPA should release all the tools for review and comment before they are finalized. Response: The prototype tool for subpart X allowed reporters to review the overall design, structure, and functionality of IVT, which applies to all subparts that are to u se the tool. Refer to Section II.A.3 of the preamble for further discussion of the usefulness of the prototype for public comment. The EPA agrees with the commenter that reporters would benefit from an opportunity to view and test IVT for their applicable subparts prior to the beginning of reporting for reporting

12 This comment was also supported by HelperBroom LLC

— Mississippi Lime (Docket I D No

. EPA

- HQ

- OAR

- 2010

- 0929

- 0069).Draft Deliberative

28 year 2014. The EPA will offer stakeholders an opportunity prior to the open reporting period (which is typically in mid

- February) to view and provide feedba ck on the IVT modules for all 23 subparts , using a sandbox testing environment similar to that used previously for e

- GGRT testing. Sandbox testing will provide users with the opportunity to use and test the applicable equations for all subparts that will be in IVT. During sandbox testing, reporte rs can test IVT for all calculation methods applicable to subpart X, not only the mass balance method. See Section II.A.3 of the preamble to the final rule for further discussion of the EPA’s plans for sandbox testing of IVT.
In addition, the EPA wants to clarify that the Agency has not made confidentiality determinations for any inputs to emission equations, either in this final rule or in any other final action . However, we believe, and the commenter appears to agree, that we have addressed in this final rule the concerns raised by various reporters regarding the potential release of certain “inputs to emission equations” data elements while maintaining the EPA’s ability to verify emissions and ensure compliance with the GHGRP

.

Commenter Name: G. Woods C ommenter Affiliation: Littlejohn Engineering Associates Document Control Number: EPA

- HQ

- OAR

- 2010

- 0929

- 0057 Comment Excerpt Number: 4

Comment: I tried the ‘pilot’ in the EPA Sandbox and found it to not be that easy to use. Response: The EPA developed the pilot IVT for a specific subpart, subpart X, petrochemical production. Recognizing that to effectively test IVT may require some basic knowledge of the subpart, the EPA provided support materials to assist with the testing process, includ ing a step

by

- step PowerP oint presentation with sample data that would trigger example verification checks. The commenter did not specify whether these support materials were used or elaborate on why they found the pilot not easy to use

. Without more detai ls on their experience in using the pilot, we are unable to address the commenter’s concerns. However , the EPA did make some revisions to IVT to improve its design and functionality based on other comments received. Please see Section 5 .0 of this document and Sections II.A.2 and II.A.3 of the preamble to the final rul e for additional details on these improvements.Draft Deliberative

29 4.2 Pilot Inputs Verification Tool

— Upload of XML Reports

Commenter Name: Kerry Kelly, Director, Federal Public and Regulatory Affairs Commenter Affiliation: Waste Management Document Control Number: EPA

- HQ

- OAR

- 2010

- 0929

- 0061 Comment Excerpt Number: 1

Comment: WM facilities comprise nearly a quarter of the total number of landfill facilities reporting under Subpart HH. Many of these facilities are also required to report ancillary activities that are insignificant emissions sources under Subpart C. WM reports for 289 landfill facilities. The reporting requirements and number of reported data elements varies with type of site (e.g., active, closed, w ith gas collection system, and without). On average, each facility will be required to report about 300 data elements. WM estimates we will report nearly 70,000 data elements for our sites for each year. Because of the large number of reporting facilities and the complexity of each report, WM collects data for each reporting site and then processes that data into the XML format suitable for bulk uploading to e

- GGRT. We are concerned, but cannot verify, that the proposed "inputs verification tool" does not s upport xml bulk upload of facility reports. We have attempted to access and test the "pilot" tool provided, but it did not function properly, and we have been unable to use it. With the Federal government shutdown, we have been unable to contact knowledgea ble EPA staff or contractors to obtain essential information about using the tool. We are therefore unable to assess the tool so that we can provide the Agency comments on its ease of use or functionality. We are also unable to evaluate the level of additi onal burden and cost this proposal will pose on our already complex reporting requirements. If we are forced to use web

- based forms to upload previously deferred data, in addition to conducting the xml bulk upload of site reports, the redundant work could be quite burdensome and costly. Response: IVT allow s for XML upload and is compatible with XML schema reporting

. The prototype that was available during the comment period included XML upload functionality as well. I nstructions were provided within the prototype on how to use the XML upload function and a telephone and email hotline was available during the open comment period to assist in testing the prototype. While the hotline was not available during the government shutdown period, the public comment period extended beyond the period of the govern ment shutdown

. T he commenter did receive help from the hotline during the open comment period , and to the EPA’s knowledge the issue was resolved

. The EPA is not aware of any X ML upload issues raised through t he hotline that w ere unresolved

. Further, the EPA will provide stakeholders an opportunity to “sandbox” test IVT for all applicable subparts prior to the beginning of reporting for reporting year 2014, including saving XML files to local drives and uploading XML files to IVT. See Section II.A.3 of the preamble to the final rule for a detailed discussion of this “sandbox” testing opportunity as well as for the response to the comment on being unable to assess the b urden of the proposed rule

.Draft Deliberative

30 Commenter Name: Jeff Applekamp Commenter Affiliation: Gas Processors Association Document Control Number: EPA

- HQ

- OAR

- 2010

- 0929

- 0070 Comment Excerpt Number: 2

Comment: The “pilot” inputs verification tool for Subpart X that EPA provided as part of this proposal is usable. We expect EPA to release an analogous XML version of the tool. Some owners and operators submit reports for over 50 facilities and rely on automated software and XML to complete reporting in a timely and accura te manner. Without an XML version of the tool, this proposed inputs verification tool concept is unworkable, as manual data entry would be an enormous and error

- prone task. Response: IVT allows for XML upload and is compatible with XML schema reporting. Th e EPA notes that t he prototype that was available during the comment period included and demonstrated XML upload functionality as well. In addition, the EPA will allow stakeholders an opportunity to test IVT for all applicable subparts prior to the beginni ng of reporting for reporting year 2014. This testing will include the XML upload option. Please see Section II.A.3 of the preamble to the final rule for further discussion of the sandbox testing period.

Commenter Name: Lorraine Krupa Gershman Commenter A ffiliation: American Chemistry Council 13 Document Control Number: EPA

- HQ

- OAR

- 2010

- 0929

- 0085 Comment Excerpt Number: 3

Comment: It did not appear that there was an XML option available for testing in the verification tool. One user attempted to upload the inputs verifier sample XML file, and an error message was generated that stated “An error has occurred and your request could not be completed.” EPA should enhance the verification tool so that it is compatible with XML schema reporting. Many large facilit ies currently successfully utilize XML reporting in order to minimize the time needed to input the data into e

- GGRT while ensuring that there are no transcription errors. Having to individually input each data element into the verification tool would negat e much of the benefits of using XML reporting. Response: IVT allows for XML upload and is compatible with XML schema reporting. The EPA notes that the prototype that was available during the comment period included XML upload functionality as well. There w as a hotline available during the comment period to assist stakeholders in using the tool, and to our knowledge we resolved all inquiries that the EPA received. In addition, the EPA will allow stakeholders an opportunity to test IVT for all applicable subp arts prior to the beginning of reporting for reporting year 2014. This testing will

13 This comment was also supported by Dow (Docket I D No. EPA

- HQ

- OAR

- 2010

- 0929

- 0068).Draft Deliberative

31 include the XML upload option. Please see Section II.A.3 of the preamble to the final rule for further discussion of the sandbox testing period.

Commenter Name: Karen Ritt er Commenter Affiliation: API Document Control Number: EPA

- HQ

- OAR

- 2010

- 0929

- 0074 Comment Excerpt Number: 16

Comment: API provides the following comments from the limited testing that is possible with the currently

- available tool: Testing the XML option for the Verification Tool was limited as well. EPA did not provide an updated schema, and has only made available one sample file to test this approach. In using this sample file, we encountered an error which EPA had to correct by m aking changes to the database. We were able to replicate the verification message outlined by EPA in the guidance for using the XML file and test a few other verification messages successfully. With the complexity of the XML schema option, EPA needs to con duct very thorough testing of any schema changes. Response: The EPA is pleased that the commenter was able to test the X ML upload function successfully. The EPA agrees with the commenter that it need s to conduct thorough testing of any schema changes, and plans to do so prior to releasing the final XML schema

. The EPA notes that it did publish an XML schema for the IVT prototype, as well as two sample files to be used with the prototype, an XML Inputs Verifier file and an XML Annual Report File. Regarding the error that the commenter discussed encountering , we believe that the commenter is referring to an issue that the EPA was contacted about on October 21, 2013 . In review of this issue, there did not appear to be any errors identified with the IVT XML fil e; rather, i t appears that the annual report XML file that the commenter attempted to upload to the IVT prototype contained an error. The sample annual report XML file available as part of the prototype did not contain this error . The database change alluded to by the commenter was a short

- cut to allow the user to try to submit again and was not due to any errors in the prototype tool. Nonetheless, the EPA assisted the commenter and resolved the issue less than 24 hours after rece iving the question. The EPA notes that additional comments provided by the API on their testing of the IVT prototype are included in this section (Section 4) of this document.

Commenter Name: Kerry Kelly Commenter Affiliation: Waste Management Document C ontrol Number: EPA

- HQ

- OAR

- 2010

- 0929

- 0090 Comment Excerpt Number: 2

Comment: WM is concerned that the verification tool will be a hindrance to reporting.Draft Deliberative

32 The verification tool appears to be designed to accommodate reporters using the e GRRT web forms, but i s not designed to facilitate reporting for those using the XML upload method. For XML reporters, use of the verification tool requires development of an additional XML report, utilizing a separate XML reporting schema, which must be uploaded successfully f or each affected site, and approved by EPA. Only after receiving EPA approval of the verification submittal with a verification summary, may reporters then proceed with downloading a “Record of Equation Inputs,” followed by submittal of the GHG report. We are concerned that this two

step process will potentially delay reporting and possibly compromise our ability to comply with the GHG MRR requirements. Our experience over the last three years of reporting is that EPA delivers the XML schemas and instructions very late in the reporting cycle. In 2013, we were not equipped with all the necessary instructions for reporting until the latter half of February, making it very difficult to meet the required March 31 reporting deadline. Furthermore, with thousands of reporters attempting to access and use e

- GRRT at the same time, the system becomes unstable and is often inoperable for lengthy periods. This further complicates reporting. The requirement to upload two different schemas for a large number of facilities will create additional work for landfill reporters and will greatly increase the time we are required to interface with the already overwhelmed e

- GRRT system. Response: The commenter was incorrect in its conclusion that IVT is not designed to facilitate reporting for those using the XML upload method. IVT allows for XML upload and is compatible with XML schema reporting. The prototype that was available during the comment period included XML upload functionality as well. The Help Desk was able to help stakeholders who asked for assistance during the public comment period. Regarding the comment about the timing of XML schema publication , the EPA plans to c onduct a “sandbox” testing period that will provide a valuable opportunity for reporters to preview and familiarize themselves with IVT prior to the open reporting period

. The IVT XML schema will be provided during this sandbox period. Please see Section II.A.3 of the preamble to the final rule for further discussion of the sandbox testing period and how it will allow reporters sufficient time to sync their systems with IVT. Regarding the comment stating that the e

- GGRT system has been “ unstable ” or “ inop erable for lengthy periods ” , the commenter did not identify any such instance or elaborate on the issues encountered to allow us to respond to more directly to this specific comment. T he EPA closely monitors e

- GGRT performance during the reporting period
a nd does not have record of such instances. Outages of the Agency’s Central Data Exchange (CDX) have sometimes coincide d with the e

- GGRT new reporting year open reporting period, but these outages have been rare, have generally lasted only a few hours, have usually occurred outside business hours (i.e., late at night or during a weekend), and are not due to a high volume of reporters attempting to access e

- GGRT at the same time.
For the reasons stated above, t he EPA is confident that the two

- step process of needing two XML schemas, one for data reported to the EPA and another for data entered into IVT, will not delay reporting and will not comprom is e a facility’s ability to timely comply with the GHGRP requirements. Keeping the two schemas separate is essential because the IVT schema is not saved by the EPA, and the EPA sees no reason why the upload ing of an additional schema
can not be completed within the open reporting period. In addition, the IVT XML schema will beDraft Deliberative

33 provided during the sandbox period, which will allow reporters to begin preparing their XML file s

. T he process of uploading an XML file within e

- GGRT takes less than 5 minutes. In addition, the “ EPA approval step ” for each XML upload described by the commenter is an instantaneous electronic process performed by IVT , and is necessary t o ensure that the data uploaded are complete and in the correct format so that the electronic data system can read the data uploaded

. This step also allows the reporter to take immediate action of either complet ing the submittal process or fixing the file if needed. Lastly, the “record of equation inputs” is a human

- readable version of the XML file uploaded, so it is necessary for IVT to be able to read the file before it is converted into a human

- readable format

. See Section II.A.3 of the preamble to the final rule for further details regarding the EPA’s response to this comment.

Commenter Name: Niki Wuestenberg Commenter Affiliation: Republic Services Document Control Number: EPA

- HQ

- OAR

- 2010

- 0929

- 0077 Comment Excerpt Number: 2

Comment: The “pilot” IVT was designed for reporters using the e

- GGRT web forms. For companies like Republic who report for over 200 facilities, we rely on reporting via XML uploading to complete our reporting accurately and in a timely ma nner. Therefore, EPA would also need to develop and test a XML version of the IVT. Although we don’t have a full understanding of the XML version, it would appear conceptually that XML reporters would be required to upload multiple schema’s for each affect ed facility separately into EPA’s system. A separate IVT schema would be required to be uploaded requiring EPA approval with a verification summary. After this step then the reporter could download a “Records of Equation Inputs” that would be followed up w ith a separate final XML submittal into e

- GGRT. This process will require additional steps not already required. Given our past experience with reporting into e GGRT this will cause delays for facilities to report timely to comply with the GHGRP. Response: Please see response to comment EPA

- HQ

- OAR

- 2010

- 0929

- 00 90 , Exce rpt 2

. 4.3 Pilot Inputs Verification Tool

— Potential Design Errors Commenter Name: Lorraine Krupa Gershman Commenter Affiliation: American Chemistry Council 14 Document Control Number: EPA

- HQ

- OAR

- 2010

- 0929

- 0085 Comment Excerpt Number: 10

Comment: For the Equation X

- 2 Product Inputs: The ACC member entered a low value of 0.8 for average carbon content (expected range for carbon black is 0.95

- 1.0), yet no issues were identified in the verification summary. Also on the Equation X

- 2 Product Inputs page, when the user clicked the “Next” button to progress to the next screen, nothing happened. Further review

14 This comment was also supported by Dow (Docket I D No. EPA

- HQ

- OAR

- 2010

- 0929

- 0068).Draft Deliberative

34 of the provided .pdf instructions clarified that one must click the “Unit Summary” button to pro gress but that would not be obvious to a typical user. (The screenshots of these issues are in Appendix A.) Finally, the user tested the printer

- friendly version of the error validation report, and the molar volume constant (MVC) data field was missing. Th e user had entered 849.5 for the MVC but in the printed report that column was blank. [See Appendix A of DCN EPA

- HQ

- OAR

- 2010

- 0929

- 0085 for screenshot.] On this page, the "Next" button does not do anything but refresh the same page. To move off of this pag e, the user followed the instructions in the pdf and clicked "Unit Summary", but that isn't obvious. The "Next" button should either disappear at this point, or if you try to click Next, a text bo x should pop up and say something to the effect of "You have entered all of the monthly data for the number of feedstock streams you specified earlier. Click "Unit Summary" to finish, or if you want to add more feedstocks, follow this link to go back and correct your prior entry."

These two screens could be worded a bit more clearly. The screens should clarify whether the unit input is a Feedstock or a Product. On the prior screen, user indicated unit consisted of 1 feedstock and 1 product yet when user progressed to the (2 of 2) screen noted below, it wasn't clear whether the system was looking for a second feedstock or a product. Both screens contain the same information. One user tested the printer friendly version of the error validation report, and the MVC data field appears to be missing. The user had entered 8 49.5 using this button. [See Appendix A of DCN EPA

- HQ

- OAR

- 2010

- 0929

- 0085 for screenshot.] But in the report, that column is blank. The system did not give an error message when the tool showed that a facility generated over 4 million kg of carbon from just 1 kg of feedstock ethane. [See Appendix A of DCN EPA

- HQ

OAR

- 2010

- 0929

- 0085 for screenshot.]

At least one user received e

- GGRT warning messages that popped up every 10 seconds notifying the user that for protection, the e

- GGRT session would be shut down so on due to inactivity. However, the user was actively navigating through the pages at the time of receiving the warning messages. The error message is captured in the screenshot below. [See Appendix A of DCN EPA

- HQ

- OAR

- 2010

- 0929

- 0085 for screenshot.]

The er ror message was received during several users' attempted logouts, despite the users having already saved the inputs files to the computer. After several unsuccessful attempts to logout, the users were able to successfully logout without losing any data. [S ee Appendix A of DCN EPA

HQ

- OAR

- 2010

- 0929

- 0085 for screenshot.] Response: The EPA thanks the commenter for their feedback on these potential errors in the prototype tool. The EPA review ed and resolved most of the issues raised by the commenter. The EPA not es that there are s ome observations made by the commenter that the EPA could not replicate

— cases in which the EPA could not confirm that there is an error or issue . In those instances, the EPA was unable to take further action.Draft Deliberative

35 Commenter Name: Karen Ritter Commenter Affiliation: API Document Control Number: EPA

- HQ

- OAR

- 2010

- 0929

- 0074 Comment Excerpt Number: 14

Comment: API provides the following comments from the limited testing that is possible with the currently

- available tool:

 Not all of the data en tries for monthly data allow the user to populate all months with the same values. This feature is allowed for data entries under “Weighing Device, Flow Meter, or Tank Level Measurement Details,” but not for data entry under the “Facility's Inputs Verifier File.”

 The verification messages provided by the tool include links. However, when selecting the link, the tool opens the Mass Balance Methodology screen and not the data entry screen where the correction needs to be made. Response: Regarding the first co mment , IVT will allow monthly data entries to be populated with the same values without entering them individually for each month. Regarding the second comment , the EPA was unable to replicate this issue.

Commenter Name: Robert A. Reich Commenter Affiliat ion: DuPont Document Control Number: EPA

- HQ

- OAR

- 2010

- 0929

- 0071 Comment Excerpt Number: 6

Comment: In the limited testing that DuPont conducted of the verification tool, we noted one significant issue. Apparently the tool allows for inputs to be made that a re obviously out of range. No warning was provided. The figure below [See Figure 1 on page 3 of comment letter] gives an example. The average carbon content of a feedstock cannot possibly exceed 1 kg C per kg feedstock, yet the value circled below is great er than four million. No error or warning message was generated at any point during the process that might have helped the user to identify that he made an error. One other problem that was encountered was that the website repeatedly warned that the applic ation had been inactive for an extended period and would close, despite the fact that the user was actively making inputs. It is not clear whether this could be an ongoing issue in e

GGRT or if it was unique to the verification tool test site. Response: Th e EPA thanks the commenter for their comments. Regarding the first issue , the EPA inadvertently had not set an “expected range” for this data element in the prototype available during the comment period. The EPA agrees that since the value cannot exceed 1 kg C per kg feedstock, the user should receive a verification warming if the value entered excee ds 1 kg C per kg feedstock. IVT will include this check.Draft Deliberative

36 Regarding the repeated warning that the user had been inactive for an extended period of time , the EPA conducted additional testing and to date has not been able to replicate this issue. The EPA pla ns to conduct extensive additional testing prior to the sandbox period to ensure that IVT runs smoothly.



### 5.0 Input s Verification Tool Design

5.1 Input s Verification Tool Design

— Recommendations for Improving

Commenter Name: Lorraine Krupa Gershman Commenter Affili ation: American Chemistry Council 15 Document Control Number: EPA

- HQ

- OAR

- 2010

- 0929

- 0085 Comment Excerpt Number: 4

Comment: For the verification report, when a data element is outside of EPA’s expected range, it would be helpful if the error message would sta te the expected range, or at a minimum include some additional information such as “below expected range” or “above expected range” or “number is too large.” This information would aid facilities in reviewing the calculations and tracing the source of pote ntial errors. Further, when the software flags an error based on the expected value after a “typical density” is used to convert to metric tons, the error should specify what density is being used. Again, this information would assist facilities in determi ning the cause of any inconsistencies. EPA should provide an input field that would enable users to respond to the verification message, once the user has checked the data entry and determined it to be correct. This would prevent a continual “doloop” when EPA conducts additional data quality checks to complete the verification process. In addition, since reporters cannot view the calculations used in the verification tool, reporters should have the ability to override an emission value if there appears to b e a discrepancy between the calculated value in the verification tool and the reporters’ calculated value. Several members would like to have the ability to copy values, such as raw materials or product throughput, directly from an Excel® spreadsheet into the verification tool rather than having to enter the data manually. Manual entry takes additional time and opens up the possibility for inadvertent transcription errors. For the gas stream entry fields, several members requested that the tool should be ab le to automatically populate the carbon content and molecular weight of the feedstock each month since those values are likely to remain constant for most processes. This can be accomplished by saving this information to the local desktop file, which would ensure that the data remains protected at the facility. At the minimum, the tool should enable users to copy information directly from other data applications. Also, the verification tool should flag any data errors at the time of data entry. For example, if the molecular weight of ethylene was entered as 288.05, the system should flag that immediately.

15 This comment was also supported by Dow (Docket I D No. EPA

- HQ

- OAR

- 2010

- 0929

- 0068).Draft Deliberative

37 For the liquid stream entry fields, EPA should consider modifying the verification tool to permit a facility to report the volume of product in kg/month ra ther than gallons/month, as provided in the rule. And again, users would like the ability to automatically populate the carbon content of the product each month, using the local desktop file, since it is likely to remain constant.
Overall, ACC users found the verification tool to be well designed, with the appropriate safeguards and warnings in place. For example, the system prompts users to save their data before logging out to prevent data from being lost, and a list of screen error appears immediately if the user inadvertently leaves an input field blank. Also, several users tested the option to save inputs data to their personal computer, and were successfully able to save the data, log out of e

GGRT, log back in at a later date, and re

- upload the data w ithout any issues. Response: The EPA thanks the commenter for their general support of IVT’s design and appreciates these suggestions for improving IVT. See Section II.A.3 of the preamble to the final rule for a d etailed discussion of the improvements the EPA has incorporated into IVT for reporting year 2014. Regarding the suggested change to allow multiple formats of units of measure in IVT , the EPA will include in IVT for each subpart all units of measure that are allowed in the subpart. Regarding the com ment that reporters should have the ability to override an emission value if there appears to be a discrepancy between the calculated equation result in the verification tool and the reporters’ calculated value , the EPA notes that this feature was included , and was functional, in the prototype and wi ll be included in IVT for all 23 subparts , as specified in Section III.A.1 of the preamble to the proposed rule. See Section 5.2 of this document for additional information regarding the reporter’s ability to ov erride an emission equation result calculated by IVT

.

Commenter Name: Jeff Applekamp Commenter Affiliation: Gas Processors Association Document Control Number: EPA

- HQ

- OAR

- 2010

- 0929

- 0070 Comment Excerpt Number: 4

Comment: Beginning in 2014, reporting entities would be required to use the EPA provided electronic inputs verification tool. The verification tool is purported to calculate GHG emissions and this calculated number would be reported unless the reporting entity over rides the number. This would show up in the report as an “override”. Verification checks add value to reporting by potentially increasing reporting accuracy and catching unintentional errors. Verification checks can also cause wasted time and effort by rep orters and by EPA if the verification ranges and algorithms are inappropriate. In the preamble (78 Fed. Reg. 56,003), EPA says that “...EPA verifies reported GHG emissions data using... publically available industry data on GHG emissions.” One member compa ny has had to respond to the same “out of range” verification questions year after

- year because their reported numbers don’t align with the numbers EPA is using based on “publically available information” (this is for “inputs to equations” for a supplier subpart). The numbers this member company are reporting are correct and have been verified again and again. However, EPA has never responded to the member company’s request for the source of this publically available information (so thatDraft Deliberative

38 the member company could understand the error message better and possibly assist EPA with improving the verification ranges). Thus, time and effort continue to be wasted by EPA and this reporter every year on the same issue. EPA needs to include in the verification tool a w ay for reporters to preemptively respond to such error messages (such as a comment field in the “inputs to equations” verification) as this would potentially save time for both parties. Going forward, we encourage EPA to work more closely with reporters to continually improve the verifications such that they become more useful and more accurate in the future. Response: The EPA agrees with the commenter and is adding to IVT a comment field allowing reporters to respond to IVT verification messages to reduce the amount of follow

- up required of the EPA and reporters. Refer to Section II.A.3 of the preamble to the final rule for a list of changes suggested by commenters that the EPA is incorporating into IVT.

Commenter Name: Karen Ritter Commenter Affiliation: API Document Control Number: EPA

- HQ

- OAR

- 2010

- 0929

- 0074 Comment Excerpt Number: 15

Comment: EPA should make available for comment the tables of Verification Checks (which include density ranges, carbon content ranges, and molecular weight ranges) for all o f the Subparts. Opening these to comment for all Subparts may alleviate unnecessary error messages in the final tool. API provides the following comments from the limited testing that is possible with the currently

available tool:

 The tool requires saving the Verifier Inputs File at multiple points even when no changes were made to the data. For example, the tool requires saving prior to closing the inputs entry screen. But the tool also requires saving when returned to the Mass Balance Methodology
screen. API recognizes that this is a “safety” feature to help prevent the user from losing data, but this may become cumbersome when the user is reviewing input data.

 There should be a comment field for users to respond to verification messages once they have che cked their data and determined it to be correct. This would prevent further iterations when EPA does additional data quality checks to complete the verification process. Response: Regarding the comment that the EPA should provide an opportunity for industry to provide feedback to the EPA on it s reasonable range checks, as is the case for all reasonable ranges used as part of the electronic verification process : see Section II.A.3 of the preamble to the final rule

. Regarding the comment that t he tool requires “saving” the entered data at multiple points even when no changes were made to the data because this procedure is cumbersome , the EPA believes that the commenter may have misunderstood how the “save” feature works within IVT. IVT does not require that the user save inputs on each screen. Because IVT does not know when a user might choose to exit the application, IVT provides the user with the option to save theirDraft Deliberative

39 inputs at any point. This is similar to how a Microsoft Word document allows you to s ave at any point when working on the document. Similarly, IVT never requires that the u ser save the inputs to equations that have been entered into IVT. A user could opt to enter inputs into IVT and delete them each session. However, the EPA anticipates th at most users will choose to save their inputs to equations file instead of re

- entering the data each time they start a new e

- GGRT session, should their data entry require multiple e

- GGRT sessions. Note that users are required to save the final copy of the ir inputs as part of the recordkeeping requirements. For additional information on the recordkeeping requirements associated with IVT , please refer to Section II.C.3 of the preamble to the final rule. The EPA agrees with the commenter and is adding to IVT a comment field allowing reporters to respond to IVT verification messages to reduce the amount of follow

- up required of the EPA and reporters. Refer to Section II.A.3 of the preamble to the final rule for a list of these and other changes suggested by commenters that the EPA is incorporating into IVT.

Commenter Name: Russell A. Wozniak Commenter Affiliation: Dow Document Control Number: EPA

- HQ

- OAR

- 2010

- 0929

- 0068 Comment Excerpt Number: 2

Comment: Duri ng the comment period, Dow has worked with the “pilot” Inputs Verification Tool for 40 CFR 98 Subpart X, and submits the following comment to EPA in the spirit of improving the tool. Gas feedstock entry fields: The tool should allow one to automatically po pulate the carbon content and MW of the feedstock each month since they won’t change in many cases. The system should also flag any data entry errors right at the time of entry. For example, if one entered 288.05 for MW for ethylene, then the system should flag it right away on the data entry screen. During the comment period, Dow has worked with the “pilot” Inputs Verification Tool for 40 CFR 98 Subpart X, and submits the following comment to EPA in the spirit of improving the tool. Liquid Stream entry fie lds: The tool should allow one to report the volume of feedstock or product in kg per month instead of gallons per month as allowed in the rule. Similarly, the tool should allow one to report the carbon content in terms of kg C per kg of stream since many in industry will have the data in this format. The tool should also allow one to automatically populate the carbon content of the stream each month since it won’t change in many cases. During the comment period, Dow has worked with the “pilot” Inputs Verif ication Tool for 40 CFR 98 Subpart X, and submits the following comment to EPA in the spirit of improving the tool. The tool should allow one to copy throughput data or carbon content data from an existing off

- line spreadsheet or similar system and copy th e data values into the Inputs Verification Tool. While hand entry of each value is possible, the overall process would be simplified and less input errors will be made if data can be copied from an external file and copied into the Inputs Verification Tool

.Draft Deliberative

40 Response: Regarding the suggestion to allow copying data from an existing spreadsheet , the EPA is implementing this suggestion in cases where the data are collected more frequently than monthly. Regarding the suggested change to allow multiple formats of units of measure in IVT , the EPA will include in IVT for each subpart all units of measure that are allowed in the subpart. Regarding the comment requesting that potential errors that are identified be identified at the time of entry, please see Section I I.A.3 of the preamble to the final rule for the response to this comment. With respect to the other suggested improvements in the comment, the EPA agrees with those suggestions and has incorporated them in IVT. For further discussion on these suggestions, please see Section II.A.3 of the preamble to the final rule.

5.2 Input s Verification Tool Design

— Overriding IVT Calculated GHG Equation Results

Commenter Name: Leslie Sue Ritts Commenter Affiliation: National Environmental Development Association ’ s Clean Air Project Document Control Number: EPA

- HQ

- OAR

- 2010

- 0929

- 0075 Comment Excerpt Number: 6

Comment: Despite our guarded enthusiasm for the practical workability of EPA’s September 11, 2013 proposal, NEDA/CAP admits that it is not entirely clear on the matter of overriding calculations. The proposed use of the verification tool clearly contemplates that it will be possible to override values, and also to communicate with EPA regarding the need for overrides. The final rule should address more thoroughly the situat ion when overrides are not appropriate or where agreement cannot be reached with the Agency on overrides. As a practical matter, how will EPA handle overrides and communications involving overrides, or disputes about overrides? Response: As discussed in th e proposal preamble and the preamble to this final rule , reporters will have the ability to override the equation result calculated in IVT

. Further more , in response to a comment (as discussed above), the EPA has added an additional comment field to IVT to allow reporters to respond to IVT verification messages, explaining why a potential error may not be an error. In cases where a verification message is generated because of a discrepancy between an IVT

- calculated equation result and reporter

- entered emissi ons , th is comment field will be made available for the reporter to explain the discrepancy. Entering an explanation is not required, but is optional for reporters. This option will reduce the amount of follow

- up required of the EPA and reporters. See Secti on II.A.3 of the preamble to the final rule for further discussion of this option. The commenter requested additional guidance from the EPA regarding how the EPA will handle follow

- up verification regarding situations where a f acility overrides an emission equation result calculated by IVT. e

- GGRT currently contains this “override” feature in several subparts where emission and greenhouse gas quantit y results are calculated by e

- GGRT. As a result, in situatio ns where a facility overrides an equation result calculated by IVT, the EPA will follow up in the same manner that is currently used when facilities override equation results calculated by e

GGRT: the EPA reviews the data submitted in the annual report, the electronic verific ation summaries, and past reports submitted as necessary. If the EPA determines that a potentialDraft Deliberative

41 substantive error 16 has occurred, the EPA contacts the facility. According to subpart A of Part 98, once a substantive error has been identified, a facility has 45 days to either demonstrate that no error exi sts or to resubmit the report. The EPA retains the right to grant an extension to the timeframe if necessary.

Commenter Name: Charles Johnson Commenter Affiliation: Aluminum Association Document Control Num ber: EPA

- HQ

- OAR

- 2010

- 0929

- 0086 Comment Excerpt Number: 3

Comment: Association members will calculate GHG emissions independently of the eGGRT verification tool using Excel or other software systems. This potentially could result in a difference between the two calculation procedures due to rounding differences in significant figures used or for other legitimate reasons. We therefore request confirmation from EPA in the final rule preamble that eGGRT would not prevent timely submission of a Mandatory GHG Rep ort if there is a difference between the emission values we calculate and report vs. values generated by the verification tool. The preamble suggests that the owner/operator will have the option to override a verification tool value, but we request clarifi cation that this will in fact be allowed if necessary. Response: As explained both in the proposal preamble and the preamble to this final rule , IVT will allow reporters to override the IVT

- calculated GHG equation result with a reporter

generated GHG value. Overriding the IVT

- calculated equation results will not prevent timely submission of the annual GHGRP report. Reporters will be allowed to submit annual reports if they have used the override feature to enter a reporter

- generated GHG value.

Commenter Name: Russell A. Wozniak Commenter Affiliation: Dow Document Control Number: EPA

- HQ

- OAR

- 2010

- 0929

- 0068 Comment Excerpt Number: 3

Comment: In many cases, the user has been calculating the GHG emissions using another computer based system. If the GHG emission values from the users’ calculations and the emission values from the Inputs Verification Tool are different, the user should have the option to over

- ride the calculations and to provide the emission quantity that they bel ieve is “correct”.

16 40 CFR 98.3(h)(3) defines substantive error as an err or that impacts the quantity of GHG emissions reported or otherwise prevents the reported data from being validated or verified. 40 CFR 98.3(h) states that once a substantive error is identifie d, an owner or operator shall, within 45 days of receipt of the notification, either resubmit the report that, for each identified substantive error, corrects the identified substantive error (in accordance with the applicable requirements of this part) or provide information demonstrating that the previously submitte d report does not contain the identified substantive error or that the identified error is not a substantive error.Draft Deliberative

42 Response: Please see response to EPA

- HQ

- OAR

- 2010

- 0929

- 0086, Excerpt 3 , for the EPA’s response to this comment.



### 6.0 Input s Verification Tool

— Verification Summary

Commenter Name: Mark Roberts and Avipsa Mahapatra Commenter Affiliation: Enviro nmental Investigation Agency Document Control Number: EPA

- HQ

- OAR

- 2010

- 0929

- 0082 Comment Excerpt Number: 4

Comment: I f there is no timeline set for the verification summary review process, then a timeline must be set to guarantee accurate data reporting. Fo r instance, how many opportunities will the industry reporter receive to revise errors and are the current checks and balances in place appropriate to monitor this process? Will the verification summary be publicly available? If so, would all the versions (as a result of potential revisions) be open to the public for review? EPA should require that all versions of the verification summary be provided for public review. Response: The commenter asserts that the EPA should specify a limit to the time or number of opportunities that reporters have to revise potential errors identified in the verification summary produced by IVT

. Part 98 already provides a process that must be followed once a potential substantive error 17 is identified by either the EPA or a reporter

. Subpart A of Part 98 specifies that once a potential substantive error is identified, a facility has 45 days to resubmit its report o r otherwise resolve the issue. This existing verification process, which currently applies to and ha s worked well for e

- GGRT , now also applies to IVT. We do not see a reason, nor did the commenter provide any, why this process would not work for IVT. Additionally, facilities or suppliers that fail to monitor or report GHG emissions, quantities supplied, or other data elements according to the requirements of the applicable rule subparts could be subject to enforcement action by the EPA under CAA Section s 113 and 203

– 205. The CAA provides for several levels of enforcement that include administrative, civi l, and criminal penalties. The CAA allows for injunctive relief to compel compliance and civil and administrative penalties of up to $37,500 per day per violation. 18 Actions (or inactions) that could ultimately be considered violations include but are not l imited to the following:

 Failure to report GHG emissions for suppliers, the emissions that would result from combustion or use of the products they supply).

17 40 CFR 98.3(h)(3) defines substantive error as an error that impacts the quantity of GHG emissions reported or otherwise prevents the repo rted data from being validated or verified. 40 CFR 98.3(h) states that once a substantive error is identified, an owner or operator shall, within 45 days of receipt of the notification, either resubmit the report that, for each identified substantive error , corrects the identified substantive error (in accordance with the applicable requirements of this part) or provide information demonstrating that the previously submitted report does not contain the identified substantive error or that the identified err or is not a substantive error. 18 The Federal Civil Penalties Inflation Adjustment Act of 1990, Public Law 101

– 410, 104 Stat. 890, 28 U.S.C. 2461, note, as amended by Section 31001(s)(1) of the debt Collection Improvement Act of 1996, Public Law 104

– 134, 11 0 Stat. 1321

– 373, April 26, 1996, requires the EPA and other agencies to adjust the ordinary maximum penalty that it will apply when assessing a civil penalty for a violation. Accordingly, the EPA has adjusted the CAA’s provision in Section 113(b) and (d) specifying $25,000 per day of violation for civil violations to $37,500 per day of violation.Draft Deliberative

43  Failure to collect data needed to calculate GHG emissions.

 Failure to continuously monitor and te st as required. Note that merely filling in missing data as specified does not excuse a failure to perform the monitoring or testing.

 Failure to calculate GHG emissions according to the methodology ( or methodologies ) specified in the rule.

 Failure to keep required records needed to verify reported GHG emissions.

 Falsification of reports. Regarding public availability of verification summaries , it is not part of the alternative verification approach and was therefore not evaluated in this rulemaking. Further, any decision regarding the public availability of verification summaries must be made in accordance with EPA’s regulation at 40 CFR part 2 , subpart B

.

Commenter Name: Glenn E. Davis Commenter Affiliation: HelperBroom LLC

— Mississippi Lime Document Control Number: EPA

- HQ

- OAR

- 2010

- 0929

- 0069 Comment Excerpt Number: 7

Comment: It is not clear from the proposal what data will be retained as part of the "Verification Summary" to be prepared and retained by USEPA. Response: The commenter is asking for clarification about what information will be include d in verification summaries generated by IVT

. As described in Section III.A.1 of the proposed rule, verification summar ies will specify whether any potential errors were identified (including whether the reporter has overridden any of the annual GHG equation results calculated by the tool) without specifying the entered data. For example, if a reporter overrides the IVT

- calculated equation result , then the verification summary will indicate that the reporter overrode the GHG value, but will provide no additional information about the discrepancy between the IVT

calculated result and the entered value. If a reporter enters a value in IVT that is outside the expected range identified by the EPA, the verification summary will include a statement saying that the particular data field is outside the range identified by the EPA. As a result of comments received on this action, the EPA will also include the range identified by the EPA, and whether the value entered was above or below the range identified. In the final rule, the EPA is also adding one more type of information to verification summaries. In response to comments that the EPA sho uld add a comment field to IVT to allow reporters to respond to IVT verification messages, the EPA is adding an option for reporters to enter into a comment field an explanation of why a potential error is not an error. Any information that reporters enter into this comment field will be included in the verification summary. See Section II.A.3 of the preamble to the final rule for further discussion of the comments in support of this option and the EPA’s rationale for adding this option.Draft Deliberative

44 

### 7.0 Inputs Verificatio n Tool

— Risk of Disclosure

7.1 Inputs Verification Tool

— Security

Commenter Name: Peter Pagano Commenter Affiliation: American Iron and Steel Institute 19 Document Control Number: EPA

- HQ

- OAR

- 2010

- 0929

- 0072 Comment Excerpt Number: 3

Comment: AISI is concerned that entering the “inputs to equations” data elements into the web

based tool using the two reporting options EPA describes ( See e.g., Jennifer Bohman, August 2013 Memo to the Docket

-- EPA

- HQ

- OAR

- 2010

- 0929

- 0051) could result in the dissemination of CBI. The m emo describes a web form reporting option, where: [U]sers would enter data into the inputs verification tool web forms. As the user enters this data, it would be temporarily stored to an area of the application server called the session. The session is a t emporary, in

- memory structure of the server hosting the e

- GGRT application. AISI appreciates EPA’s acknowledgment of the importance of protecting the data elements, and its attempts to protect CBI by asserting that storage of the data in the host server is only on a temporary basis. However, EPA must provide adequate technical support to demonstrate that the data stored in the “session” is truly temporary and would not be accessible to others.
Furthermore, the use of a web

- based system that transfers data a cross the internet means that these data are also processed via proxy servers located anywhere in the world and outside necessary controls. These servers can, and routinely do monitor and store the information they process. Therefore, AISI is concerned tha t data may still be stored in these proxy servers after the session ends. AISI also wishes to bring to EPA’s attention that the pilot verification tool developed to demonstrate the system has an URL address with an “http” prefix. This prefix indicates tha t data would be routed through a non

- secure server before reaching EPA. The current e

- GGRT system, however, uses a secure server with an “https” prefix. While AISI endorses continued use of the
e

- GGRT reporting methodology as used during the deferral perio d, we ask that EPA confirm that the verification tool, if adopted, would use a similar secure server as e

- GGRT. A second option described in the Bohman memo is XML (eXtensible Markup Language) reporting, whereby reporters would upload a file containing all the data elements into the verification tool. While acknowledging that this is an optional reporting method that is intended to ease the reporting process, it also raises serious security concerns. The security issues with XML file transfers have been wid ely documented in the internet security community. The security concerns with the XML file transfers are inherent in its strengths as a universal format that is easily readable by many web

- based applications. This format is highly transparent in that the d ata are usually transmitted as the original text or values (un

- encrypted), and easily

19 This comment was also supported by United States Steel Corporation (Docket I D No. EPA

- HQ

- OAR

- 2010

- 0929

- 0078).Draft Deliberative

45 accessible to a wide range of applications. This is accomplished because the files containing the data also contain the definitions needed for any application to decipher the data values with their corresponding context. Moreover, the XML file may also contain HTML code (HyperText Markup Language) that can be inserted maliciously or inadvertently, and can cause other security vulnerabilities. In the Grogan

- McCulloch memo, EPA correctly concluded that “members of the GHG reporting community may be uncomfortable with having the ‘inputs to equations’ data elements stored at the EPA (in an encrypted manner).” The use of a web

- based system and XML file transfers compounds this p roblem because it will mean that these data will be stored in internet servers throughout the world, encrypted and otherwise.
AISI believes that EPA’s use of a web

- based system to handle CBI data and its related measures are inadequate and create an opport unity for the data to be disseminated inadvertently. AISI believes that EPA has not provided reasonable assurances that these data would be protected to ensure that they would remain confidential. AISI, therefore, respectfully requests that this proposal b e withdrawn and the reporting methodology used during the deferral period be adopted permanently. Response: IVT is designed to operate securely within e

- GGRT, as a transient process, such that data entered into IVT will be temporarily housed in the IVT sys tem while the reporter is actively using IVT. The EPA complies with the strict security procedures and guidance governing access to federal data servers established by the National Institutes of Standards and Technology (NIST) and in accordance with the Fe deral Information Security Management Act of 2002 (FISMA). Furthermore, in order to address the noted security concerns, the EPA has identified an additional security layer to encrypt the transient session data used by the server while the reporter is acti vely using IVT. See Section II.A.3 of the preamble to the final rule for additional detail responding to this comment.

Commenter Name: Wade Foster, Manager, Scientific Programs Commenter Affiliation: The Fertilizer Institute Document Control Number: EPA

- H Q

- OAR

- 2010

- 0929

- 0064 Comment Excerpt Number: 1

Comment: TFI does not oppose a data verification tool, as proposed by EPA, provided it has safeguards in place to ensure that (1) the reporting tool does not retain the information (even if the system “crashes ”), and (2) the confidential information inputted is not accessible by Agency personnel. Response: The EPA has designed IVT to operate securely within e

- GGRT, as a transient process, such that data entered into IVT would be temporarily housed in the IVT sy stem while the reporter is actively using IVT. The entered inputs will not be saved to the underlying EPA database, nor will they be saved to the server’s file system. IVT is also designed to protect data in the instance of a system malfunction. See Sectio n II.A.3 of the preamble to the final rule for additional detail responding to this comment.Draft Deliberative

46 Commenter Name: Andrew T. O ’ Hare Commenter Affiliation: Portland Cement Association Document Control Number: EPA

- HQ

- OAR

- 2010

- 0929

- 0067 Comment Excerpt Number: 5

Comment: One cement manufacturer raises concerns with EPA’s assertion that the verification tool “would not retain entered inputs (.i.e., the inputs would not be reported to EPA) at the time of data entry” for generation of the actual report (78 FR at 5599 6). The mere act of inputting data into a database by means of an online tool would require retention of the information. The preamble does not provide a detailed account of what happens with the information once it is entered into the system, other than t he fact that the data initiates generation of a report. At least one cement manufacturer has expressed concerns about the reliability and quality of the current e

- GGRT. According to one cement maker, e

- GGRT is especially susceptible to malfunction during p eriods of high volume reporting. Because federal regulators have not addressed operational issues associated with the e

- GGRT reporting tool, cement makers are wary of relying on software associated with the database to generate an accompanying “verificatio n report.” Response: The EPA has designed IVT to operate securely within e

- GGRT, as a transient process, such that data entered into IVT would be temporarily housed in the IVT system while the reporter is actively using IVT. The entered inputs will not be saved to the underlying EPA database, nor will they be saved to the server’s file system. See Section II.A.3 of the preamble to the final rule for additional detail responding to this comment. Regarding the comment that the EPA has not addressed operationa l issues associated with the e

GGRT reporting tool , the commenter did not identify any such instance or elaborate on the issues encountered to allow us to respond to more directly to this specific comment. The EPA has a “help desk” available by email or phone to assist reporters during the reporting period. The EPA closely monitors e

- GGRT performance during the reporting period and does not have record of such instances. Outages of the Agency’s CDX have some times coincided with the e

- GGRT new reporting year reporting period, but these outages have been rare, generally last only a few hours, usually occur outside business hours (i.e. , late at night or weekends) , and are not due to a high volume of users using e

- GGRT at the same time.

Commenter Name: Glenn E. Davis Commenter Affiliation: HelperBroom LLC

— Mississippi Lime Document Control Number: EPA

- HQ

- OAR

- 2010

- 0929

- 0069 Comment Excerpt Number: 8

Comment: MLCO further asks for clarification of the security with which its data will be maintained and/or transmitted within the IVT and USEPA or to or from any external sites.Draft Deliberative

47 MLCO joins in the NLA suggestion that the data be maintained electronically under the control of the reporting party.

It is also unclear where the data will reside during the time it is in the possession of the USEPA, i.e. on secure government servers, or local, reporting facility computers with limited access, or whether any outside vendors will have access to the data at any step in the proces s. There is a concern that absent some encryption procedure or other technical change, internet transmission of the confidential data could be intercepted, thereby undermining the protection of CBI. Response: IVT is designed to operate securely within e

- GG RT, as a transient process, such that data entered into IVT would be temporarily housed in the IVT system while the reporter is actively using IVT. The EPA complies with the strict security procedures and guidance governing access to federal data servers e stablished by NIST and in accordance with the FISMA. Furthermore, in order to address the noted security concerns, the EPA has identified an additional security layer to encrypt the transient session data used by the server while the reporter is actively u sing IVT. Regarding the comment that data entered into IVT should be maintained electronically under the control of the reporting party , the EPA considered several alternative approaches including an option where inputs data were stored on a reporter’s co mputer. As explained in the memorandum “Evaluation of Alternative Verification Procedures,” the EPA identified several limitations with these alternatives, including limits to the functionality as well as additional burden to both the reporters and to the EPA. As a result, the EPA is not finalizing these alternatives in the final rule. For additional information on this option, please see this memorandum at EPA

- HQ

- OAR

- 2010

- 0929. See Section II.A.3 of the preamble to the final rule for additional detail res ponding to this comment.

Commenter Name: Lorraine Krupa Gershman Commenter Affiliation: American Chemistry Council 20 Document Control Number: EPA

- HQ

- OAR

- 2010

- 0929

- 0085 Comment Excerpt Number: 5

Comment: Finally, ACC members remain concerned that the data entered into the verification tool, even if for only a short period of time, remain confidential and protected from public disclosure. For those facilities that are required to comply with U.S. export control requirements, this becomes an even greater conc ern. EPA should further explain in the final rule how the verification tool will successfully protect this sensitive data. ACC will address this issue in greater detail in our future comments on EPA’s proposed rulemaking for subpart L.

20 This comment was also supported by Dow (Docket I D No. EPA

- HQ

- OAR

- 2010

- 0929

- 0068).Draft Deliberative

48 Response: The EPA no tes that the inputs to emission equations whose reporting deadline was deferred until 2015 for subpart L are being finalized in a separate final action. The EPA has designed IVT to operate securely within e

- GGRT, as a transient process, such that data ente red into IVT would be temporarily housed in the IVT system while the reporter is actively using IVT. The entered inputs will not be saved to the underlying EPA database, nor will they be saved to the server’s file system. See Section II.A.3 of the preamble to the final rule for additional detail responding to this comment.

Commenter Name: G. Woods Commenter Affiliation: Littlejohn Engineering Associates Document Control Number: EPA

- HQ

- OAR

- 2010

- 0929

- 0057 Comment Excerpt Number: 1

Comment: How can EPA, a go vernment entity be trusted to not secretly save any 40 CFR 98 equation data? Response: The EPA has designed IVT to operate securely within e

- GGRT, as a transient process, such that data entered into IVT would be temporarily housed in the IVT system while t he reporter is actively using IVT. The entered inputs will not be saved to the underlying EPA database, nor will they be saved to the server’s file system. See Section II.A.3 of the preamble to the final rule for additional detail responding to this commen t.

Commenter Name: David Friedman Commenter Affiliation: American Fuel and Petrochemical Manufacturers Document Control Number: EPA

- HQ

- OAR

- 2010

- 0929

- 0080 Comment Excerpt Number: 1

Comment: AFPM supports EPA’s development of an input verification tool that can be used as an alternative to direct reporting of “inputs to emissions equations” data elements. AFPM believes that the tool strikes a reasonable balance between EPA’s interest in verifying GHG reporting data and AFPM members’ interests in protecting t he confidentiality of materials data and related information. Specifically, AFPM supports EPA's proposal that companies using the verification tool would only report to EPA the verification summary. The underlying “inputs to emissions equations” that the c ompany enters into the verification tool should, thus, remain confidential because such information would be deleted by the tool without ever being disclosed to EPA. To ensure that these data do in fact remain confidential, we urge EPA to clarify in the pr eamble to the final rule that the data entered into the verification tool remain at all times in the possession of the company entering the data and thus are not subject to disclosure under any other federal law as a result of its entry into the verificati on tool. Response: The EPA has designed IVT to operate securely within e

- GGRT, as a transient process, such that data entered into IVT would be temporarily housed in the IVT system while the reporter is actively using IVT. The entered inputs will not be s aved to the underlying EPADraft Deliberative

49 database, nor will they be saved to the server’s file system. Given that the EPA will have no access to, or possession of, data entered into IVT, such data will not be considered to be agency records as defined by the Freedom of Information Act or the Federal Records Act . See Section II.A.3 of the preamble to the final rule for additional detail responding to this comment.

Commenter Name: William C. Herz Commenter Affiliation: National Lime Association 21 Document Control Number: EPA

- HQ

- OAR

- 2010

- 0929

- 0089 Comment Excerpt Number: 4

Comment: NLA seeks clarification that the tool will not submit confidential information over the Internet to the EPA (or elsewhere), and rather that the information will reside only on the local computers used by facilities to prepare their reports. Response: In the final rule, the EPA is requiring that reporters enter information into IVT. The EPA has designed IVT to operate securely within e

- GGRT, as a transient process, such that data entered into IVT w ould be temporarily housed in the IVT system while the reporter is actively using IVT. All EPA information systems must meet the security requirements defined in NIST Special Publication 800

- 53. 22 As such, the program keeps a security plan up to date that i s submitted and reviewed annually at the EPA. The EPA considered several alternative approaches including an option in which inputs data were stored on a reporter’s computer. As explained in the memorandum “Evaluation of Alternative Verification Procedure s,” the EPA identified several limitations with these alternatives, including limits to the functionality as well as additional burden to both the reporters and to the EPA. For the details of this analysis , please see this memorandum at EPA

HQ

- OAR

- 2010

- 092 9. The EPA received no comments disputing or otherwise questioning any aspect of its analysis of the alternatives. For the reasons set forth in that analysis, the EPA did not adopt these alternatives in this rulemaking. See Section II.A.3 of the preamble t o the final rule for additional detail responding to th e comment on whether the use of IVT will involve trans mitting data over the I nternet.

21 This comment was also supported by HelperBroom LLC

— Mississippi Lime (Docket I D No

. EPA

- HQ

- OAR

- 2010

- 0929

- 0069). 22 http://csrc.nist.gov/publications/PubsSPs.html

.Draft Deliberative

50 Commenter Name: Angus E. Crane Commenter Affiliation: North American Insulation Manufacturers Association Document Control Number: EPA

- HQ

- OAR

- 2010

- 0929

- 0079 Comment Excerpt Number: 4

Comment: NAIMA and its members are concerned about EPA’s ability to safeguard this information, in part because EPA does not have an ideal track record in maintaining the confidentiality of CBI or trade secrets. Even if the Agency were to accept the information under a confidential business information arrangement and to guarantee protection of trade sensitive data, the risk of disclosure would serve as a disincentive to product and techno logy development. Why? Because EPA has not been able to successfully prevent competitors from obtaining such information provided to EPA in the past. Furthermore, EPA has not identified a revised approach or system whereby reported information will be affo rded any greater security than information previously collected by EPA. The lack of confidence in EPA’s ability to keep information confidential is well

- founded. A review of some of the lawsuits brought against EPA for improper disclosure of information de monstrates that EPA cannot effectively guarantee that sensitive data will not fall into the wrong hands. For example, Monsanto Company was forced to seek injunctive relief against EPA and the Scientific Advisory Panel to enforce a consent decree between Mo nsanto and the Agency after EPA admitted improper disclosure of certain trade secrets. The consent decree was designed to protect Monsanto from any further breaches of security, but the company had to resort to court action to have the consent decree honor ed. Monsanto Co. v. Ruckelshaus , 753 F.2d 649 (8 th Cir. 1985). Yet another example is found with the Chevron Chemical Company. Chevron brought an action against EPA seeking a penalty for disclosure of confidential business information connected with ingred ients in a pesticide product. The court found that the statute providing a penalty for disclosure of confidential information by an officer or employee of the United States does not prevent the agency from using the confidential information in the course o f agency business. Chevron Chemical Company v. Costle , 641 F.2d 104 (3 rd Cir.) cert. denied , 452 U.S. 961 (1981). In other words, EPA was permitted to use the confidential business information in evaluating and determining action on competitors’ pesticide registration applications. Because agencies frequently employ independent contractors who often have access to such information being “used” by the Agency, the safety of that very confidential data is compromised. Indeed, several lawsuits have been brought against EPA for allowing its independent contractors to conduct inspections or review material deemed to contain confidential information or trade secrets. See Bunker Hill Co. Lead and Zinc Smelter v. Environmental Protection Agency , 658 F.2d 1280 (9 th Ci r. 1981); United States v. Stauffer Chemical Co. , 684 F.2d 1174 (6 th Cir. 1982). The court generally allows disclosure of confidential information to other offices, employees or authorized representatives of the government when necessary for any proceeding under a federal statute. Because the revolving door of the federal government never stops, a scenario of a government employee transferring to the public sector while equipped with knowledge of trade secrets is not implausible.Draft Deliberative

51 Given the weakened competit ive advantage of U.S.

- based companies, this concern over the potential loss of sensitive trade secrets is even more important today. Indeed, it would be destructive to the health of U.S. businesses for EPA to implement a reporting program that essentially gives away sensitive information to anyone who wishes to surf the Internet. This is particularly troubling given that EPA originally contemplated making much of the reported information available to others: “EPA proposes to make data collected under this r ule available to State agencies and the public, with the exception of any CBI data, as discussed in Section I.C of this preamble.” [ Footnote: 74 Fed. Reg. at 16,594 (April 10, 2009).] The anticipated volume of information reported to, and possibly flowing from, EPA demands diligent protection of the CBI reported to EPA. Response: The cases cited concerned issues regarding CBI in the 1980s. The EPA wishes to reiterate that it considers the protection of information claimed as CBI with utmost seriousness and has continued to securely manage CBI submitted to the EPA. The commenter expressed concern with the EPA’s ability to safeguard trade secret s and CBI provided to the EPA and cited a number of case law in support

. However, nothing in the comment above and the cited case law raises specific issues or concerns with any aspect of the IVT approach being finalized today. Furthermore, as described below, the cited case law involved significantly different situations from this rulemaking and is therefore not an ap propriate basis for assessing this final rule

. First, while the cited case law involved trade secret s and CBI, the Agency has not made confidentiality determinations for any of the inputs to emission equations , including any determination that any data ent ered into IVT qualifies as CBI

. Any such determination must be made in accordance with the CAA and the EPA’s implementing regulations under 40 CFR part 2, subpart B. Second, while the EPA had possession of the information at issue in the cited cases, the d ata entered into IVT are not reported to the EPA , nor will IVT allow the EPA to collect or otherwise access such data. Given that the EPA will not have such data, there is no reason to be concerned with potential disclosure of such data by the EPA , inadvertently or otherwise. As explained in Section II.A.3 of the final preamble , the data entered into IVT will not be considered to be agency records as defined by the Freedom of Information Act or the Federal Records Act. The EPA has no legal obligati on to safeguard non

- agency record s

. Although the comment above raises no specific issues or concerns regarding IVT, IVT is designed to operate securely within e

- GGRT, as a transient process, such that data entered into IVT would be temporarily housed in th e IVT system while the reporter is actively using IVT. The EPA complies with the strict security procedures and guidance governing access to federal data servers established by NIST and in accordance with the FISMA. Furthermore, in order to address the not ed security concerns, the EPA has identified an additional security layer to encrypt the transient session data used by the server while the reporter is actively using IVT. See Section II.A.3 of the preamble to the final rule for additional detail on the s ecurity features of IVT

.Draft Deliberative

52 7.2 Inputs Verification Tool

— Other Risks of Disclosure

Commenter Name: Angus E. Crane Commenter Affiliation: North American Insulation Manufacturers Association Document Control Number: EPA

- HQ

- OAR

- 2010

- 0929

- 0079 Comment Excerpt Number : 3

Comment: IT IS NOT CLEAR THAT PROTECTIONS FROM PUBLIC ACCESS TO NON

REPORTABLE DATA INPUTS ARE ADEQUATE EPA does give some comfort that those emission calculation inputs removed from reporting requirements by the Proposed Rule may receive protection fr om public disclosure. EPA proposes that those data inputs, though no longer reportable, must be entered into a verification tool. The tool in turn generates both an emissions calculation and a verification summary for EPA, but then deletes the data inputs from the system so that EPA does not gain access to them. To the extent these data inputs are actually relevant to N

- 1 calculations, such temporary storage and limits to EPA access should ensure that this sensitive information remains with the covered comp anies. However, EPA does not require that company keep a printout of the data inputs generated by the tool as an official record by the company for 5 years and make it accessible to EPA should the Agency seek to perform follow

- up verification work. 78 Fed. Reg. at 56,000. Hence, EPA’s access is not as limited as the Agency professes it to be. Id . At 55,999, 56,002. Rather, the Agency may still secure such data inputs if it makes the affirmative effort to do so for verification purposes. See , proposed amende d 40 C.F.R. 98.3(g) (“Upon request by the Administrator, the records required under this section must be made available to EPA.”) Indeed, EPA discusses the possibility of “more direct follow

- up activities” such as site inspections. See id . at 56,04, 56,006. In this way, the Proposed Rule only eliminates the automatic provision of the information to the Agency through the annual reporting requirements but no subsequent
access. There are no provisions in the Proposed Rule which elaborate upon wh en the Agency is authorized to access such data and its procedures for doing so while keeping the information confidential. For example, the Proposed Rule does not set forth a requirement that EPA can access the data only through an official enforcement

- re lated action that might accord the information privileged status and provide some security from public release. Nor are there provisions to ensure that non

- enforcement staff or contractors of EPA cannot access the data and inadvertently release it or other wise render the information unprotected. NAIMA believes that the verification tool concept, should the tool work as intended, can be a valuable method of helping to protect confidential and sensitive business information from public disclosure. But EPA mus t provide adequate provisions to ensure that such information is not subsequently released or otherwise rendered public when the Agency seeks to verify the input data. Response: See Section II.A.3 of the preamble to the final rule for the EPA’s response to this comment.Draft Deliberative

53 Commenter Name: David Friedman Commenter Affiliation: American Fuel and Petrochemical Manufacturers Document Control Number: EPA

- HQ

- OAR

- 2010

- 0929

- 0080 Comment Excerpt Number: 6

Comment: AFPM has been an active partner in EPA’s development of the GHGRP, particularly with respect to EPA's treatment of confidential business information (“CBI”) under these reporting requirements. In response to EPA’s 2010 proposed confidentiality determinations and reporting requirements, AFPM (at the time know n as NPRA) submitted comments explaining that EPA’s proposal raised antitrust concerns for AFPM’s members and subjected certain CBI to public disclosure by classifying certain data elements as “emission data .” [ Footnote: NPRA Comments on Proposed Confident iality Determinations for Data Required under Mandatory Greenhouse Gas Reporting Rule and Proposed Amendment to Special Rules Governing Certain Information Obtained Under the Clean Air Act, 75 Fed. Reg. 39,094 (July 7, 2010) (Attachment A).] In response to concerns raised by AFPM and others, EPA proposed to defer for three years the reporting requirements for certain “inputs to emissions equations” data elements so that the Agency could further consider whether these data elements should be treated as CBI a nd issued a “Call for Information” regarding the confidentiality of these data elements. 75 Fed. Reg. 81,350 (Dec. 27, 2010); 75 Fed. Reg. 81,366 (Dec. 27, 2010). AFPM, along with other trade associations, submitted comments that supported EPA’s proposal t o defer the reporting requirements, but again urged EPA to expressly affirm that “inputs to emission equations” do not qualify as “emission data” and are entitled to CBI status, noting both the confidentiality and antitrust concerns associated with their d isclosure

. [ Footnote: API, NAM, and AFPM Comments on Change to the Reporting Date for Certain Data Elements Required Under the Mandatory Reporting of Greenhouse Gas Rule; Proposed Rule; 75 Fed. Reg. 81,350 (Dec. 27, 2010) (Attachment 2).] Since that time, AFPM and its member companies have continued to work with EPA to develop a solution that ensures compliance with the GHGRP while appropriately protecting CBI. AFPM recognizes and supports EPA’s commitment to protecting CBI and its willingness to take actio n to ensure that such information is not inappropriately disclosed. With respect to the proposed rule, AFPM supports EPA’s decision to allow companies to use EPA’s electronic verification tool (along with related recordkeeping and reporting requirements) a s an alternative to directly reporting raw material data and other CBI. At the same time, we remain concerned that the Agency has not gone far enough to ensure that critical and sensitive CBI data remain confidential by failing to state explicitly in the p roposed rule that “inputs to emissions equations” data elements are not “emission data” for purposes of Section 114 of the Clean Air Act (“CAA”). Given EPA’s recognition that inputs to emissions equations are confidential, the Agency must take the necessar y steps to protect it from any risk of further disclosure by clarifying that such information is not “emission data.” While EPA’s proposed verification tool should be sufficient to protect most “inputs to emissions equations” data elements from public disc losure, there remains a residual risk that such data elements could be subject to disclosure under the CAA. Therefore, to ensure the confidentiality of these data elements, we urge EPA to explicitly state in the final rule that “inputs to emissions equatio ns” qualify for confidential treatment under EPA’s regulations and should not be deemedDraft Deliberative

54 “emission data.” According to EPA’s five

- part test, business information is entitled to confidential treatment if:

1. the business has asserted a business confidentiality claim which has not expired by its terms, nor been waived nor withdrawn;
2. the business has satisfactorily shown that it has taken reasonable measures to protect the confidentiality of the information, and that it intends to continue to take such measures;
3. t he information is not, and has not been, reasonably obtainable without the business’s consent by other persons (other than governmental bodies) by use of legitimate means (other than by discovery based on a showing of special need in a judicial or quasi

- ju dicial proceeding);
4. no statute specifically requires disclosure of the information; and
5. either

— (1) the business has satisfactorily shown that disclosure of the information is likely to cause substantial harm to the business’s competitive position or, (2) the information is voluntarily submitted information (see § 2.201(i)), and its disclosure would be likely to impair the Government’s ability to obtain necessary information in the future. 40 C.F.R. § 2.208. AFPM members’ “inputs to emission equations” dat a satisfy each of these elements. First, AFPM and its members have already asserted their confidentiality claims in prior GHGRP rulemaking comments. As EPA acknowledged, almost all industry comments asserted that “inputs to emissions equations . . . are co nsidered trade secrets or otherwise sensitive business information, and that making those inputs publicly available would cause them serious competitive harm.” 75 Fed. Reg. at 81,534. Second, as AFPM has previously explained, its members continue to take r easonable measures to protect the confidentiality of such data elements, in part to address antitrust concerns raised by the Federal Trade Commission (“FTC”). See Attachment B at 6

- 7. Third, this data could not be otherwise obtained without consent of AFPM ’s members. Fourth, no statute requires disclosure of this information and, as discussed in the following section, these data elements should not be classified as emission data. Fifth, public disclosure of “inputs to emissions equations” data will cause su bstantial harm to the competitive position of AFPM members. Disclosure of information regarding usage of raw materials, production volumes, and process

- specific information could provide competitors with insight into operational limits and process capaciti es, proprietary manufacturing formulas, and details regarding production costs. Thus, “inputs to emissions equations” data elements meet EPA’s regulatory requirements for protection as CBI. While AFPM supports the steps EPA has taken in this proposal to av oid public disclosure of certain “inputs to emission equations” data, we continue to disagree with EPA’s position, first stated in the 2010 proposed rule, that data elements assigned to the “inputs to emissions equations” category should be treated as “emi ssion data” pursuant to 40 C.F.R. § 2.301(a)(2)(i). See 75 Fed. Reg. at 39,108. EPA has continued to perpetuate this interpretation in the final “deferral” rule and again in this proposal. As described above, “inputs to emission equations” data qualify as CBI and thus should be protected from disclosure. However, by asserting that such data elements are “emission data” EPA is creating a substantial risk that “inputs toDraft Deliberative

55 emissions equations” may be disclosed to the public. For example, any member of the publi c could attempt to obtain emission data in EPA’s possession by submitting a Freedom of Information Act (“FOIA”) request. The most appropriate way to avoid the risk of disclosure of confidential “inputs to emissions equations” is for EPA to expressly state in the final rule that “inputs to emission equations” are not “emission data” and thus are protected from disclosure as CBI. Contrary to EPA’s assertions, inputs to emissions equations are not “necessary to determine” GHG emissions because these data do no t describe actual emissions and instead are used to verify actual emissions already reported using other means. An interpretation recognizing these distinctions would be both reasonable and consistent with the text of the CAA. Under the CAA, any informatio n provided to EPA must be protected as confidential upon a requisite showing, unless that information is deemed to be “emission data.” Specifically, the statute requires that “[a]ny records, reports, or information obtained under [42 U.S.C. § 7414(a)] shal l be available to the public, except that upon a showing satisfactory to the administrator by a person that records, reports, or information, or particular part thereof, (other than emission data) to which the Administrator has access under this section if made public, would divulge methods or processes entitled to protection as trade secrets . . ., the Administrator shall consider such record, report, or information or particular portion thereof confidential . . . .” 42 U.S.C. § 7414(c) (emphasis added).

C ourts reviewing agency interpretations of the statutes that they administer apply the well

established two

- step Chevron framework. See Chevron, U.S.A., Inc. v. NRDC, 467 U.S. 837 (1984). At the first step, a court must determine “whether Congress has direc tly spoken to the precise question at issue.” Id. at 842. Congress has not spoken directly to address the issue here, because the CAA does not define “emission data” and does not address “inputs to emission equations” at all

. [ Footnote: EPA has never taken the position that the scope of emission data can be resolved through a Chevron step 1 analysis and has instead issued regulations to more clearly define the scope of this exclusion from confidentiality. See Attachment B at 8 n.5

. ] Thus , the CAA does not compel EPA to treat “inputs to emissions equations” as “emission data,” and the Agency must instead adopt an interpretation that is consistent with its obligation to protect CBI from disclosure. If a statute’s meaning is unclear, a court ’s task under step two of Chevron [INSERT: Chevron, U.S.A., Inc. v. NRDC, 467 U.S. 837 (1984)] is to determine when an agency’s interpretation “is based on a permissible construction of the statute.” Id. Here, the most common and straightforward interpreta tion of “emission data” is actual emissions into the air that can be measured and calculated. In contrast, “inputs to emissions equations” data elements describe calculations and formulas that can be used to estimate emissions, not actual, measurable emiss ions, and, therefore, do not meet the commonsense definition of “emission data.” Thus, the reasonable construction of the statute is one that excludes “inputs to emissions equations” from the definition of “emission data.” To interpret Section 114(c) other wise would expand the provision’s exclusion for emission data to the point that it swallows the rule and, thereby, thwarts Congress’ intent to protect the confidential information reported by regulated entities. Further, “inputs to emissions equations” fal l outside EPA’s own regulatory definition of “emission data.” EPA defines emission data as:Draft Deliberative

56 1. Information necessary to determine the identity, amount, frequency, concentration, or other characteristics . . . of any emission which has been emitted by the sour ce . . .; 2. Information necessary to determine the identity, amount, frequency, concentration, or other characteristics . . . of the emissions which, under an applicable standard or limitation, the source was authorized to emit . . .; and
3. A general descripti on of the location and/or nature of the source to the extent necessary to identify the source and distinguish it from other sources . . . . 40 C.F.R. § 2.301(a)(2)(i) In the 2010 proposed rule, EPA concluded that part (B) did not apply “because there are n o established GHG emission limits for the facilities subject to Part 98.” 75 Fed. Reg. at 39,100. Further, because “inputs to emissions equations” do not describe the location and/or nature of sources, part (C) is also inapplicable. “Inputs to emissions eq uations” also fall outside of part (A) because these data elements are not needed to determine the characteristics of GHG emissions from the source

. [ Footnote: In the event that EPA establishes GHG emissions limits for facilities subject to Part 98, part ( B) would be inapplicable for the same reasons described here for Part(A).] Existing case law addressing EPA’s regulatory definition confirms that the “necessary to determine” clause in parts (A) and (B) should be construed narrowly to avoid allowing the
ex ception for “emission data” to swallow the Congress’ intent to protect CBI from disclosure. For example, the District Court for the District of Columbia has held that a “strict interpretation of the ‘necessary to determine’ requirement is warranted to ensu re that the exception does not swallow the rule.” NRDC v. Leavitt, Case No. Civ. 04

- 1295, 2006 WL 667327 at *4 (D.D.C. Mar. 14, 2006); see also id. (“a plain reading of 40 C.F.R. § 2.301(a)(2)(i) indicates that ‘emission data’ is defined narrowly . . .”). Likewise, a district court in Texas has held that EPA cannot consider inputs to emissions equations “necessary to determine” emissions without considering all relevant factors, including “alternative methods of identifying or measuring pollutants” that wou ld avoid disclosure of proprietary or confidential information. RSR Corp. v. EPA, 588 F. Supp. 1251, 1255

- 56 (N.D. Tex. 1984). EPA’s 1991 Notice of Policy, which provides a list of data fields that EPA “presently considers to constitute emission data” furt her supports a narrow construction of that term. 56 Fed. Reg. 7,042 (Feb. 21, 1991). There, EPA concluded that “emission estimation method[s]” are emission data because they are necessary to determine the characteristics of the emissions. However, the Poli cy does not go beyond the identification of the method itself and also require disclosure of the inputs required by the emission estimation method. Id. Following this Policy, “inputs to emissions equations” should not be considered “emission data.” Further , these input data elements are not necessary to determine the identity, amount, frequency, concentration, or other characterization of any emission. The term “emission” is not ambiguous and requires an actual discharge into the air. See 41 Fed. Reg. 36,90 2, 36,922 (Sept. 1, 1976) (confirming that satisfying 40 C.F.R. § 2.301(a)(2)(i)(A) must be “data concerning actual (experienced) emissions”). The data elements EPA has classified as “inputs to emissions equations” do not describe the actual emissions from a source and, in any event, EPA already receives actual emission data under the GHGRP. As result, these inputs data, which may be used by EPA for certain verification purposes, are redundant with the actual emission data already reported, and would not pr ovide the public with any new information regarding actual emissions. Thus, according to EPA’s own interpretations of part (A), “inputs to emissions equations” cannot beDraft Deliberative

57 “necessary to determine” the characteristics of GHG emissions and, therefore, fall out side of the “emission data” exception and should be excluded from disclosure as CBI. In addition to the confidentiality concerns discussed above, treating “inputs to emissions equations” as “emission data” could subject AFPM members to potentially incompat ible legal obligations because disclosure of these data elements will raise significant antitrust concerns. In comments filed in response to EPA’s proposed confidentiality determinations for the GHGRP, the FTC explained that disclosure of “inputs to emissi ons equations” data would raise antitrust concerns, including violation of the principle of aggregation

. [ Footnote: FTC, Comments of the Federal Trade Commission (Sept. 30, 2010) (“FTC Comments”) (Attachment C).] The antitrust concerns raised by the FTC co nstitute a significant risk for AFPM members and provide another reason for protecting the confidentiality of “inputs to emissions equations.” “Inputs to emissions equations” data elements include information related to fuel production and distribution, in cluding details regarding inputs, the nature and location of sources, and plant operations. Antitrust laws generally prohibit competitors from facilitating anticompetitive coordination in prices or production through sharing of price, output, and related i nformation. Thus, the exchange of price information is of particular concern. See United States v. Container Corp. of America, 393 U.S. 333 (1969); FTC, FTC Guide to the Antitrust Laws, Dealings with Competitors: Spotlight on Trade Associations

. [ Footnote: Available at http://www.ftc.gov/bc/antitrust/tradeassociations.shtm .] Similar concerns apply to information sharing that could facilitate coordinated output decisions. See United States v. Andreas, 216 F.3d 645, 666

- 69 (7th Cir. 2000) (antitrust laws prohibit agreements to restrict output). By treating “inputs to emissions equations” as “emission data,” EPA would risk the further disclosure of these data elements, leading to violations of the principle that shared data should be “sufficiently aggregated” and should “not allow recipients to identify” the competitive information of “any particular provider .” [ Footnote: In other contexts, the FTC has explained any shared cost or price data mu st be managed by a third party, be more than three months old, and be “sufficiently aggregated such that it would not allow recipients to identify the prices charged or compensation [costs] paid by any particular provider.” See Dep’t of Justice & FTC, Stat ements of Health Care Antitrust Enforcement Policy, Statement 6: Statement of Department of Justice and Federal Trade Commission Enforcement Policy on Provider Participation in Exchanges of Price and Cost Information, available at http://www.ftc.gov/bc/healthcare/industryguide/policy/statement6.htm .] “Inputs to emissions equations” data are not sufficiently aggregated and thus would provide company

- specific information on pro duction, throughput, raw material consumption, capacity, and future operations that could, in theory, facilitate the tacit or explicit coordination of pricing or output among competitors. In its September 30, 2010 comments to EPA, the FTC cautioned that pu blic disclosure of CBI “may lead to collusion that harms customers through higher prices, decreased quality, and decreased innovation.” FTC Comments at 2. The FTC specifically identified “inputs to emissions equations” data as a problematic category becaus e it “include[s] data on production, throughput, raw material consumption, capacity, and future operations.” Id. at 1. FTC explained that public disclosure of this information “may make it easier for reporting companies to either tacitly or explicitly coor dinate their pricing decisions.” Id. at 1

- 2. These risks are particularly acute for AFPM members, as the FTC specifically listed petroleum refining and petrochemical production as industries of concern. Id. at 3. To avoid these antitrust concerns, the FTC urged EPA to treatDraft Deliberative

58 all “inputs to emissions equations” data as confidential. Id. at 12

- 13. AFPM urges EPA to defer to the FTC and make clear that “inputs to emissions equations” data elements do not qualify as “emission data.” AFPM and its members take ser iously their antitrust obligations and strive to avoid taking any action that could raise antitrust concerns. If EPA continues to treat “inputs to emissions equations” as “emission data,” AFPM members will risk the possibility that information will be made publicly available that the FTC believes could facilitate anticompetitive behavior. Rather than placing AFPM members in such a “Catch 22,” EPA should ensure the confidentiality of these data elements by stating explicitly in the final rule that they are n ot emission data subject to disclosure. Response: The EPA wants to clarify that it has not made confidentiality determinations for any of the inputs to emission equations (including whether they are emission data under the CAA) , either in this final rule o r in any other final action . Any such determination must be made in accordance with the CAA and the EPA’s implementing regulations under 40 CFR part 2, subpart B , and the EPA has not done so, nor did the EPA purport to do so , in its four

- step evaluation relative to the inputs to equations

. 23 As explained in S ection I.C of the preamble to the final rule, the goal of this rulemaking is to address the concerns of reporting inputs to equations that have disclosure concerns . The EPA believes that it has achieve d this goal through this rulemaking, which does not require making confidentiality determinations on data that are inputs to equations. The EPA is therefore not addressing specific comments on why such data are not emission data and why they qualify as CBI

. The commenter supports the IVT approach but expresses concerns that “there remains a residual risk that such data elements could be subject to disclosure under the CAA.” However, the comment above did not elaborate on such remaining residual risk and we are therefore unable to address it in this response.

Commenter Name: Karen Ritter Commenter Affiliation: API Document Control Number: EPA

- HQ

- OAR

- 2010

- 0929

- 0074 Comment Excerpt Number: 3

Comment: I. The need for EPA to ascertain that confidential “inputs to emission equations” are not “emissions data” API and its member companies appreciate and support EPA’s decision in the proposed rule that, in lieu of reporting CBI such as raw material data, the Agency would allow facilities to use an electronic verific ation tool being developed by EPA that is subject to enhanced recordkeeping and reporting requirements. In fact, API members are participating in the pilot program for the Verification Tool that will help demonstrate how the tool works with e

- GGRT.

23 For additional information on the four

- step evaluation, please see Section I.C of the preamble. The four

- step evaluation, which evaluates potential disclosure concerns and alternative reporting and verification approaches, involves consideration of seve ral but not all factors in the EPA’s regulations governing confidentiality determinations.Draft Deliberative

59 API app reciates that EPA recognizes the utmost need to take seriously and protect confidential business information and that the Agency has signaled a willingness to take necessary and appropriate steps to prevent the inappropriate disclosure of such information. At the same time, regarding those elements that EPA properly has concluded should be accorded protection as CBI, EPA must clarify that such information is not “emission data” both to reconcile its confidentiality determination with the text of the Clean A ir Act and to avoid the risk of this information being disclosed through other means. A. EPA should clarify that the “inputs to emission equations” data elements which are accorded protection as CBI are not “emission data In 2010, API supported EPA’s deci sion to defer the reporting deadline for a subset of data elements in the “inputs to emission equations” category until March 31, 2015 in order to provide sufficient time to consider comments on specific confidentiality determinations for certain data elem ents. See 75 Fed. Reg. 81350 (Dec. 27, 2010). Although API appreciates that EPA now proposes that many of these elements are confidential, API disagrees with EPA’s position as set forth in the July 2010 proposed rule (and set forth again in the final rule and in the 2013 proposed rule), that the identified data elements in the inputs to emission equations category qualify as “emission data” under 40 C.F.R. § 2.301(a)(2)(i). See 75 Fed. Reg. at 39108. As we discuss in detail below, EPA must protect against t he disclosure of confidential “inputs to emission equations.” The appropriate way to do this is to clarify that inputs to emission equations are simply not “emission data” within the meaning of the Clean Air Act (CAA) and EPA regulations. B. “Inputs to emi ssion equations” fall outside of the plain text of the CAA’s narrow exemption for “emission data” The CAA provides that upon the requisite showing, information provided to EPA must be afforded confidential treatment “other than emission data.” 42 U.S.C. § 7414(c). CAA section 114(c), 42 U.S.C. § 7414(c), requires that: “[a]ny records, reports or information obtained under subsection (a) of this section [section 114(a)] shall be available to the public, except that upon a showing satisfactory to the Administ rator by a person that records, reports, or information, or particular part thereof, (other than emission data) to which the Administrator has access . . . if made public, would divulge methods or processes entitled to protection as trade secrets of such p erson, the Administrator shall consider such record, report, or information or particular portion thereof confidential . . ..” 42 U.S.C. § 7414(c) (emphasis added). Thus, given that Section 114(c) might be read to limit the provision’s protection against f urther disclosure for CBI that is deemed “emission data,” in order to ensure that confidential information is not at risk for further disclosure, it is critical that EPA properly define such information outside the realm of “emission data.”

Under the well

- established two

- step test set forth in Chevron, U.S.A., Inc. v. NRDC, 467 U.S. 837 (1984), a court first must determine “whether Congress has directly spoken to the precise question at issue.” If the intent of Congress is clear, that is the end of the matt er because the court (and the agency) must give effect to an unambiguous intent of Congress. If the statute isDraft Deliberative

60 silent or ambiguous, however, with respect to the specific issue, the question before the court is whether the agency answer is based upon a perm issible construction of the statute. If Congress has left a gap for an agency to fill, an agency may elucidate a specific provision of the statute by regulation unless such regulations are arbitrary, capricious, or manifestly contrary to the statute. Id.

T he CAA does not define “emission data” and does not speak directly to the treatment of “inputs to emission equations.” In turn, the CAA does not compel EPA to treat the inputs to emission equations elements as “emission data” under step one of Chevron

. [ Fo otnote: EPA has never suggested that the CAA speaks directly to the question at issue or mandates a particular interpretation that compels this type of information to be treated as emission data. Rather, in the 1970s, EPA determined that it was necessary t o promulgate regulations to establish procedures by which EPA would evaluate whether information collected under the CAA was entitled to confidential treatment. This long

- standing interpretation of whether certain information falls within the “emission dat a” exception shows that there was a gap to fill in the statute. Furthermore, EPA’s responses to comments show that EPA attempted to craft a reasonable construction of the statutory term “emission data” that would disclose some data on experienced emissions while protecting the interests of the businesses that provide information to EPA, See 41 Fed. Reg. at 36922.] Thus, EPA must interpret the CAA in a manner that simultaneously enforces its obligations to protect the disclosure of confidential business info rmation. 1. “Inputs to emission equations” do not fall within the statutory or regulatory definition of “emission data” Under step two of the Chevron analysis [i.e., two

- step test set forth in Chevron, U.S.A., Inc. v. NRDC, 467 U.S. 837 (1984)], where a st atute is “silent or ambiguous with respect to the specific issue, the question for the Court is whether the agency’s answer is based on a permissible construction of the statute.” Id. The CAA does not define “emission data” but the common understanding of this term is actual, experienced emissions into the air that can be measured and calculated. The “inputs to emission equations” elements, however, simply describe various formulas and calculations, are not actual emissions, and thus do not constitute “emis sion data” under CAA Section 114(c). The only reasonable construction of the CAA that is consistent with EPA’s regulations and relevant precedent requires EPA to conclude that “inputs to emission equations” do not constitute “emission data” within the mean ing of Section 114(c). The “emission data” exemption in CAA Section 114(c) is far too narrow to include the broad and confidential universe of “inputs to emissions equations” data. The information EPA has proposed warrants confidential treatment that could be at risk for further disclosure if EPA does not accurately characterize such information as being outside the realm of “emission data.” In its regulations, EPA defines what constitutes “emission data.” See 40 C.F.R. § 2.301(a)(2)(i). “Inputs to emission equations” is not encompassed within this definition of emission data, which is defined as:
(A) Information necessary to determine the identity, amount, frequency, concentration, or other characteristics . . . of any emission which has been emitted by the source . . .;Draft Deliberative

61 (B) Information necessary to determine the identity, amount, frequency, concentration, or other characteristics . . . of the emissions which under an applicable standard or limitation the source was authorized to emit . . .; and
(C) A genera l description of the location and/or nature of the source to the extent necessary to identify the source and distinguish it from other sources . . .. 40 C.F.R. § 2.301(a)(2)(i). In 2010, EPA correctly determined that part (B) of its regulatory definition i s not applicable because there are no established GHG emissions limits for the facilities subject to the GHGRP (75 Fed. Reg. at 39100). Furthermore, the “inputs to emission equations” do not fall within subsection (C) because they do not describe the locat ion or nature of sources. Likewise, the “inputs to emission equations” data elements fall outside of part (A) because such data elements are not necessary to determine the characteristics of any “emission” that has been emitted. Relevant case law supports that EPA’s regulations defining “emission data” and, in particular, the “necessary to determine” clause, must not be interpreted to allow EPA’s narrow exception for “emission data” to swallow the well

- settled and sensible rule that sensitive business infor mation is eligible for CBI protection. See NRDC v. Leavitt, Civ. No. 04

- 01295, 2006 WL 667327 at *4 (D.D.C. March 14, 2006) (a “strict interpretation of the ‘necessary to determine’ requirement is warranted in order to ensure that the exception does not sw allow the rule.”); see also id. (a “plain meaning of 40 C.F.R. § 2.301(a)(2)(i) indicates that ‘emission data’ is defined narrowly . . .). The case of RSR Corp. v. EPA, 588 F. Supp. 1251 (N.D. Tex. 1984) is instructive. In RSR Corp., EPA made a determinati on that various documents which included inputs to emission equations were necessary to determine emissions or sources. Ultimately, however, the district court remanded the determination back to the EPA because the agency failed in its administrative recor d to support its conclusion that it was “necessary” to include the inputs to emission equations. The RSR court found it clear that before concluding that requested information is necessary, EPA must consider all relevant factors including “available altern atives, so that the release of information claimed to be proprietary could be avoided unless required by statute.” Id. at 1256. A 1991 EPA Notice of Policy reinforces that EPA’s interpretation of “emission data” should be construed narrowly. The Policy pro vides a list of data fields that EPA “presently considers to constitute emission data.” 56 Fed. Reg. 7042 (Feb. 21, 1991). In the Policy, EPA identified the “emission estimation method” as a data field that is necessary to establish the characteristics of the emissions and is, therefore, “emission data.” The Policy, however, only requires identification of the method, e.g., material balance, and use of AP

- 42 emissions factors but does not require disclosure of the actual inputs used in the emission estimati on method. 56 Fed. Reg. 7043. Thus, the most reasonable approach would be for EPA to similarly exclude inputs data from the realm of “emission data.” The inputs data are simply not “information” necessary to determine the identity, amount, frequency, conce ntration, or other characterizations of any “emission.” The term “emission” is unambiguous and means material that has actually been discharged (emitted) into the air. In promulgating its CBI regulations, EPA confirmed that data falling into category (A) m ust be “data concerning actual (experienced) emissions.” See 41 Fed. Reg. at 36922. The detailedDraft Deliberative

62 facility process and operational information that EPA has categorized as “inputs to emissions equations” provides no information regarding the characteristics of any emissions and, in turn, actual emission data is being fully reported to EPA under the GHGRP. Rather it provides information about annual throughput and production rates

– which encompass information that should not be readily available to the public because, as discussed below, it would raise serious antitrust concerns. Furthermore, where EPA intends to use the inputs data solely for verification, and where the inputs do not describe or identify any actual (experienced) emissions, the inputs data can not be “necessary to determine” the characteristics of emissions. Finally, and importantly, the amount of emissions is separately reported under the GHGRP and the bare inputs to equations do not provide the public any additional, relevant information regar ding the scope of the emissions themselves. Thus, in order to reconcile EPA’s confidentiality determination with Section 114(c) and to protect against the risk of further disclosure of confidential information, EPA must ensure that such information is not defined as “emission data.” 2. EPA properly concluded that certain “inputs to emission equations” data elements are entitled to confidential treatment First, as noted above, API supports EPA’s decision that certain “inputs to emission equations” data eleme nts are CBI and should be protected from disclosure. Although API supports EPA’s development and willingness to use the verification tool in an effort to avoid the disclosure of confidential information, as discussed above EPA must go further and clarify t hat such confidential information is not “emission data” in order to ensure that the information will not be further available to the public or subject to disclosure under the CAA. As API has explained in comments submitted in the past, the inputs data clearly satisfy EPA’s five

- part test for confidential treatment (see 40 C.F.R. § 2.208) and, in turn, any data that EPA believes must be verified should be addressed on a case

- by

- case basis.
EPA’s five

- part test for whether business information is entitled to confidential treatment is well

settled. Business information is entitled to confidential treatment if:
(a) the business has asserted a business confidentiality claim which has not expired by its terms, nor been waived nor withdrawn; (b) the business ha s satisfactorily shown that it has taken reasonable measures to protect the confidentiality of the information, and that it intends to continue to take such measures;
(c) the information is not, and has not been, reasonably obtainable without the business’ s consent by other persons (other than governmental bodies) by use of legitimate means (other than by discovery based on a showing of special need in a judicial or quasi

- judicial proceeding); (d) no statute specifically requires disclosure of the informati on; and
(e) either

— (1) the business has satisfactorily shown that disclosure of the information is likely to cause substantial harm to the business’s competitive position or, (2) the information isDraft Deliberative

63 voluntarily submitted information (see § 2.201(i)), and i ts disclosure would be likely to impair the Government’s ability to obtain necessary information in the future. 40 C.F.R. § 2.208. These five elements are easily satisfied.
First, as EPA is well

- aware, API has asserted confidentiality claims with respect t o some or all inputs to emissions equations (including, but not limited to, product compositions, raw materials used, fuel types and quantities, production volumes, and other process

- specific information). API and other entities made it abundantly clear th at these inputs are considered trade secrets or otherwise sensitive business information and making such inputs publicly available would cause serious competitive harm. 75 Fed. Reg. at 81534. Second, API and its members have taken, and will continue to tak e, reasonable measures to protect the confidentiality of data elements. And as discussed above, this data has historically been protected in part to address the antitrust concerns as set forth by, among others, the Federal Trade Commission (FTC). Third, EP A could not otherwise obtain this data without the consent of API’s members. Fourth, there is no statute that requires disclosure of this information (and as discussed supra, these data do not qualify as “emission data” and are not subject to disclosure un der the CAA). Fifth, disclosure of the inputs to emission equations will almost certainly cause substantial harm to API members’ competitive positions. As discussed, disclosing production volumes, and process specific information could provide insight to c ompetitors regarding sensitive operational limits and process capabilities. Additionally, disclosure of the type, composition, and relative proportions of raw materials used can reveal specific formulas used to manufacture products and reveal details about production costs. Where all five requirements have been met, there is no question that the information qualifies as CBI. 3. Release of confidential “inputs to emission equations” data elements raises significant antitrust
concerns
In addition to the need to treat the confidential inputs data outside the definition of “emission data” to avoid disclosure under EPA’s regulations, if EPA fails to take sufficient action to protect such data from disclosure, significant antitrust concerns may arise. As the FTC h as made clear, failing to protect confidential “inputs to emissions equations” data elements from disclosure could trigger antitrust concerns and violate the principle of aggregation. EPA must avoid imposing a requirement to disclose inputs data because su ch disclosure is inconsistent with statutory requirements and policies promoting competition. The data elements in this category include cost

- and output

- related information that is a significant determinant of prices including information regarding fuel p roduction and distribution (which provides details about inputs, nature and location of sources, and plant operations). The antitrust laws generally prohibit competitors from sharing price, output, and other information that may facilitate anticompetitive coordination in prices or production and thereby harm consumers. The exchange of price information is of particular concern. [ Footnote: The antitrust laws are designed to promote and preserve the competitive private enterprise system by encouraging free an d open competition and the fairest distribution of high quality goods and services at the lowest possible prices. The basic provisions of the antitrust laws are found in the Sherman Act, Clayton Act, Robinson

- Patman Act, and the Federal Trade Commission Ac t. Distilled, these Acts oblige regulated entities to ensure that they do not discuss or exchangeDraft Deliberative

64 information with their competitors on issues such as prices to be charged, division or allocation of markets or customers, distribution of products, profit le vels, production of products or level of production, bases for determining prices, and exchanges of price information to certain customers, among other issues. Violations of these Acts can lead to imprisonment, fines, court

issued injunctions, treble damag e awards, and state penalties. As noted supra, the FTC submitted comments in EPA’s CBI rulemaking and took the position that EPA’s proposed rule “may allow for the public release of competitively sensitive information” and, in particular, pointed to data

u nder three categories that were at high risk and warranted confidential protection: “inputs to emission equations,” “unit/process ‘static’ characteristics that are not inputs to emission equations,” and “unit/process operating characteristics that are not inputs to emission equations.” See FTC Comments at 6. With respect to “inputs to emission equations,” the FTC pointed out that “inputs to emission equations” include annual fuel combustion volume, production/throughput and raw material consumption (such as petrochemical production), characteristics of raw materials, products, and by

- products, and facility operating information which, if not characterized as “emission data,” would otherwise be CBI. ] See United States v.Container Corp. of America, 393 U.S. 33 3 (1969); see also Federal Trade Commission (FTC) FTC Guide to the Antitrust Laws http://www.ftc.gov/bc/antitrust/factsheets/antitrustlawsguide.pdf

. Because the Antitrust laws prohibit agreements to restrict output, see United States v. Andreas, 216 F.3d 645, 666

- 69 (7th Cir. 2000), a similar set of antitrust concerns apply to information

sharing (tacit or explicit) that may facilitate coordinated output decisions. Any disclosur e of “inputs to emission equations” would violate well

- settled principles that shared data should be “sufficiently aggregated” and should “not allow recipients to identify” the competitive information of “any particular provider.” Without such safeguards, producers are more likely to learn the specifics of individual competitors’ ongoing operations. Such knowledge could impact prices and/or output and the risk of causing competitive harm increases because some sensitive aspects of fuel production may persis t over time. EPA’s proposal fails to address these concerns. As discussed above, EPA must confirm that any elements it deems confidential are not “emission data.” Otherwise, the data elements in the “inputs to emission equations” that EPA has now determine d lack any “identified disclosure concerns,” might be available for disclosure to the public. [ Footnote : In our September 7, 2010 comments, API members expressed concern that some of the Suppliers’ reporting requirements could reveal process

- specific information and production volumes, thus providing competitors with data about sensitive process capabilities and operational limits and market capabilities and engagements. For these reasons, API has previously stated that petroleum fuel refiners, importers, and exporters should not have to report on petroleum feed stock and product volumes or unit

- specific GHG e missions and process data to EPA unless assured the confidentiality of these data.] As the FTC has explained, because numerous industries subject to the GHGRP share various market conditions, “making confidential business information (CBI) public may lead to collusion that harms consumers through higher prices, decreased quality, and decreased innovation.” Comments of the Federal Trade Commission, September 30, 2010 at 2. More specifically, the FTC expressly highlighted its concerns about EPA’s proposed re lease of “inputs to emission equations” and other sensitive data elements explaining that:Draft Deliberative

65 Three categories of data that the EPA proposes to make public contain potentially sensitive competitive business information: “inputs to emission equations,” “unit p rocess ‘static’ characteristics that are not inputs to emission equations,” and “unit/process operating characteristics that are not inputs to emission equations.” These three categories include data on production, throughput, raw material consumption, cap acity, and future operations. Public disclosure of such facility

- and firm

- specific sensitive business information may make it easier for reporting companies to either tacitly or explicitly coordinate their pricing decisions. This is especially true when c ertain market conditions are present such as transparency, high concentration, impediments to entry, homogenous products, and low elasticity of demand. See Comments of the FTC (emphasis added; internal footnotes omitted).
As a result of its concerns, the F TC recommended that EPA treat all “inputs to emission equations” data elements as confidential. Id. Because the FTC is the federal agency specifically charged with maintaining competition and safeguarding the interests of consumers, we urge EPA to be parti cularly deferential of its advice regarding the serious need to take adequate steps to avoid disclosing this sensitive data. API continues to urge EPA to follow the FTC’s recommendations and provide CBI protection to all “inputs to emission equations” part icularly where there is not a sufficient record upon which to determine how EPA excluded some inputs as confidential. Response: Please see the EPA’s response to comment EPA

- HQ

- OAR

- 2010

- 0929

- 0080, Excerpt 6 , for the EPA’s response to this comment.

Commente r Name: Lorraine Krupa Gershman Commenter Affiliation: American Chemistry Council 24 Document Control Number: EPA

- HQ

- OAR

- 2010

- 0929

- 0085 Comment Excerpt Number: 11

Comment: I. Legal and Policy Issues ACC appreciates EPA’s recognition of the need to protect t his confidential and sensitive business information; however, EPA’s proposed regulatory treatment of such information creates uncertainties that would put these emission calculation inputs at risk of public disclosure if these uncertainties are not address ed by EPA in the final rule. In order to ensure that companies’ emission calculation inputs are not disclosed to competitors, ACC urges EPA to determine that the 440 data elements that are in the subparts listed in Table 2 of this proposed rule are not “em issions data” under Section 114(c) of the Clean Air Act (CAA), 42 U.S.C. §7414(c). Such a finding would guarantee these data the full protection from public disclosure provided under EPA regulations. As explained below, such a determination would be

24 This comment w as also supported by Dow (Docket I D No. EPA

- HQ

- OAR

- 2010

- 0929

- 0068).Draft Deliberative

66 perfec tly consistent with the statute, EPA regulations, and the federal government’s overall policy of protecting trade secrets and confidential commercial information.

A. Certain Emission Calculation Inputs are Protected by EPA’s Regulations on Confidential Business Information The 440 data elements at issue in this rulemaking assuredly meet EPA’s five

- part test for confidential information that must be protected from public disclosure. 40 C.F.R. § 2.208. This test entitl es information to protection where it meets the following criteria: (1) a business asserts a business confidentiality claim that has not expired, been waived, or withdrawn; (2) the business takes reasonable measures to protect the confidential nature of th e information and intends to continue taking those measures; (3) the information is not reasonably obtainable, by anyone other than government entities, without the business’ consent; (4) no statute specifically requires the disclosure of the information; and (5) the business has either shown that disclosure of the information is likely to cause substantial harm to its competitive position, or that disclosure would be likely to impair the government’s ability to obtain information in the future.Id.

For ACC’ s members, the data inputs originally proposed in 2010 to be reported to EPA, [ Footnote: These inputs were subsumed in EPA's 2010 proposed broad

- brush determination that "inputs to emission equations" are considered "emissions data." 75 Fed. Reg. 39094 (Ju ly 7, 2010)] but which EPA is now proposing not be reported to EPA, clearly meet these five requirements. For example, information pertaining to member facilities’ usage of raw materials, production volumes, and other process

- specific information could pro vide competitors with details regarding the operational limits of manufacturing facilities, manufacturing formulas, production costs, and other confidential, sensitive, and secret information that can provide a company with a competitive advantage over oth ers in the same market. ACC’s comments and the comments of some of our member companies on the 2010 proposal discussed our concerns in great detail, and we incorporate those comments by reference herein. As we have noted in previous comments, EPA has right fully determined that specific data are entitled to protection from public disclosure. However, this same protection is not being given when that exact same data must be used by a company as an input to an emissions equation. For example, EPA is proposing in §98.246(a)(12) and (13) that data elements, i.e., name and annual quantity of each carbon

- containing feedstock (or product, respectively) included in Equation X

1, X

- 2 and X

- 3 of §98.243, be protected as CBI because EPA has determined that the data, ‘Ra w Materials Consumed That Are Not Inputs to Emissions Equations’ and ‘Production/Throughput Data That Are Not Inputs to Emissions Equations’, respectively, could result in competitive harm if publicly disclosed. However, when these same data are used as “i nputs” to emission equations, EPA is proposing at §98.246(a)(4) to remove the reporting requirement for each of the monthly volume, mass and carbon content values used in Equations X

- 1 through X

- 3 of §98.243 and instead require companies to maintain record s of these data on

- site for 5 years, subject to agency inspection. EPA is silent as to whether this data is to be afforded CBI protection. The potential disclosure of these data elements poses no less significant a threat of substantial competitive harm th an the disclosure of the data elements at §98.246(a)(12) and (13) that EPA has determined are entitled to confidential treatment. In order to avoid substantial competitive harm, the final rule must protect all data that contain sensitive business informati on and EPA can only do so by abandoning its 2010 proposal that when used as inputs to emissions equations thisDraft Deliberative

67 sensitive data will not be protected from public disclosure because the Agency deems it to be “emissions data.” Only then will ACC member compani es have some hope of being able to shield their sensitive business information from disclosure.

B. Classifying Certain Emission Calculation Inputs as “Emission Data” is Unsupported by the Clean Air Act and EPA’s Existing Interpretations EPA’s August 2013 M emorandum, “Evaluation of Competitive Harm from Disclosure of “Inputs to Equations” Data Elem ents deferred to March 31, 2015 ” concurs that the disclosure of certain emission calculation inputs could result in competitive harm and these inputs therefore sho uld be protected. At the same time, the Agency appears to believe that these inputs would still be considered “emissions data” pursuant to Section 114(c) of the CAA, as it proposed in July 2010. The language of the CAA, however, is ambiguous and EPA may an d should interpret the term “emission data” to exclude certain emission calculation inputs, consistent with the statute, EPA’s regulations and case law. ACC believes that choosing a contrary interpretation at this time is not only bad public policy, but wo uld be unsupported by the CAA and inconsistent with EPA past interpretation of the term “emission data”. Most importantly, it would potentially defeat EPA’s proposed efforts to protect such information from disclosure.
ACC’s concern arises out of the fact that the CAA excludes “emission data” from confidentiality protections, thus creating ambiguity regarding EPA’s ability to protect certain data inputs that the Agency now agrees deserve protection. Importantly, the CAA does not define the term “emission da ta.” 42 U.S.C. §7414(c). Pursuant to Chevron, U.S.A., Inc. v. NRDC, 467 U.S. 837, 843 (1984), where “Congress has not directly addressed” the precise meaning of a statutory term, EPA may forward “a permissible construction of the statute.” Many years ago, EPA promulgated its definition of “emission data” at 40 C.F.R. § 2.301(a)(2). That definition construes “emission data” to include only that information “necessary” to determine, among other things, the identity, amount, frequency, and concentration of emi ssions. Id. §2.301(a)(2)(i)(A). [ Footnote: 40 C.F.R. §§ 2.301(a)(2)(i)(B) and (C) are not implicated by the GHG Reporting Rule as the information submitted does not pertain to either an “applicable standard or limitation,” or “the location and/or nature of the source,” respectively.] In 1991, EPA issued a policy document stating what it considers to be “emission data” under 40 C.F.R. §2.301(a)(2)(i), meaning what it considers to be “necessary” to determine the basic characteristics of source emissions. See 56 Fed. Reg. 7,042 (Feb. 21,1991) (the “1991 Policy”). Using its authority under Chevron, EPA may interpret whether certain emission calculation inputs are “emission data.” In doing so, however, the Agency faces several constraints. First, EPA cannot inter

pret the term “emission data” in a way that is “inconsistent with the statutory mandate or that frustrate[s] the policy that Congress sought to implement.” FEC v. Democratic Senatorial Campaign Committee, 454 U.S. 27, 31

- 21 (1981). Second, any interpretati on must represent “a reasonable accommodation of conflicting policies that were committed to the agency’s care by the statute.” United States v. Shimer, 367 U.S. 374, 382 (1961). Third, when changing an interpretation through informal rulemaking, the agenc y must “justif[y] [its] change of interpretation with a reasoned analysis.” Rust v. Sullivan, 500 U.S. 173, 187 (1991) (internal quotation omitted). EPA’s July 2010 proposed interpretation that all “inputs to emission equations” are “emission data” [ Footno te: See 75 Fed. Reg. 39094, 39108 (July 7, 2010)]Draft Deliberative

68 infringes on all three constraints and that interpretation needs to be corrected as to the 440 inputs that are the subject of this rulemaking.

1. Section 114(c) and “Emissions Data ” EPA’s proposed interpret ation that all emission calculation inputs are “emission data” is inconsistent with Section 114(c) for two main reasons. First, the purpose of this statutory provision is to protect sensitive business information unless it falls within the narrow exception of “emission data.” Given EPA has now acknowledged the need to protect certain emission calculation inputs from public disclosure, the Agency cannot simultaneously classify these sensitive data as “emission data” which must be publicly disclosed.
Second, Section 114(c) states in pertinent part: “Any records, reports or information obtained under subsection (a) shall be available to the public, except that upon a showing satisfactory to the [EPA] by any person that records, reports or information, or parti cular part thereof, (other than emissions data), to which the [EPA] has access...if made public, would divulge methods or processes entitled to protection as trade secrets of such person, the [EPA] shall consider such record, report or information ...confident ial...” (Emphasis added). The language of the statute seems clear that if EPA receives a record, report or information considered to be “emissions data”, it shall make such record, report or information available to the public. The proposed rule seems to dis pose of this potential obligation by stating that the EPA would not have “access” to the 440 business sensitive inputs at issue in this rulemaking because they are not retained by the verification tool. ACC is not comforted by that response. Given that EPA has already determined that these business sensitive inputs should not be made publicly available, we believe that a consistent and reasonable interpretation of Section 114(c) requires the Agency to determine that these inputs are not “emissions data”.

Ce rtain emission calculation inputs are not data on the emissions themselves, e.g., the pollutant’s identity, the volume of emissions, the concentration of the pollutant, etc. Instead, these inputs are information about the manufacturing process

– such as fu el usage, production/throughput, process feed rate, raw material consumption, and byproducts. This operational data is exactly the type of proprietary and confidential business information that § 114(c) was intended to protect. Enlarging what should be a n arrow exception for information on the identity, volume, and concentration of pollutant emissions would make § 114(c)’s protections ineffective in serving its purpose of protecting confidential business information about industrial processes and formulae. In fact, interpreting these data inputs as “emission data” would create an exception that would swallow the rule. Under this broad approach to “emission data,” it would be hard to identify any types of confidential process information that would be exclude d from “emission data”. One district court has already interpreted the term “emission data” to require a narrow construction in order to preserve the purpose of 42 U.S.C. § 7414(c). Natural Res. Def. Council v. Leavitt, Case No. 04

- 1295, 2006 WL 667327 at *4 (D.D.C. Mar. 14, 2006) (interpreting EPA’s regulatory definition of “emission data” to be “defined narrowly”). EPA similarly should exclude certain data inputs from the definition of “emission data” or else Section 114(c) would lapse into irrelevance.Draft Deliberative

69 2

. Balancing Protection of CBI and Public Disclosure EPA’s proposed classification of all “inputs to emission equations” as “emission data” fails to provide a reasonable balance between the competing federal government policy of protecting confidential busi ness information and the public’s right to know the reporters’ GHG emissions. EPA’s July 2010 proposed interpretation significantly conflicts with the federal government’s overall policy of protecting confidential information. The government has repeatedly affirmed the value of protecting trade secrets and confidential commercial or financial information submitted to government agencies. See, e.g., 5 U.S.C. § 552(b)(4) (protection of trade secrets and privileged and confidential commercial or financial info rmation are exempt from Freedom of Information Act); 44 U.S.C. § 3501(8) (federal information policy is to ensure that federal government agencies protect “privacy and confidentiality” of information); 18 U.S.C. § 1905 (government officers or employees tha t discloses confidential business information obtained through the course of their official duties subject to fines and imprisonment). Indeed, Section 114(c) of the CAA explicitly protects trade secrets and confidential information pertaining to “methods a nd processes” with the sole exception of “emission data”. EPA has already acknowledged that certain emission calculation inputs contain exactly this type of “sensitive” business information. 75 Fed. Reg. at 39,106. This institutional respect for confidenti al and proprietary information should counsel EPA to err on the side of more protection, not less. This is especially true given that the GHG information being reported is not for purposes of ensuring compliance with enforceable emission standards. The GHG Reporting Rule was developed for informational purposes, such as improving the quality of the Inventory of U.S. Greenhouse Gas Emissions and Sinks submitted pursuant to the United Nations Framework Convention on Climate Change, “advancing the understandin g of emission processes and monitoring methodologies,” identify “shortcomings in the national statistics and identify where adjustments may be needed.” 74 Fed. Reg. 16448, 16455 (Apr. 10, 2009). Limiting EPA’s interpretation of “emission data” to actual em ission data, and not all emission calculation inputs, will amply serve the purposes of the GHG Reporting Rule by providing accurate and high quality current data regarding the magnitude of GHG emissions while honoring the national policy of protecting sens itive business information. EPA’s current interpretation puts it in the crux of a contradiction: although the Agency acknowledges that, as “emission data,” the emission calculation inputs “must be available to the public” under CAA § 114(c), the verificati on tool is explicitly designed to destroy this “emission data” to prevent its public disclosure. Such untenable straddling would be completely unnecessary if the Agency simply adopted and finalized a common sense approach that deemed certain data inputs ab out the reporters’ operations to be outside the scope of “emission data” and to be afforded protection from public disclosure.

3. EPA’s Change in Interpretation In the GHG Reporting Rule, and more specifically in the proposed 2010 determination that all “i nputs to emission equations” are considered “emissions data”, EPA has changed its interpretation of “emission data” in at least three significant ways: (1) it has expanded the definition to include many more parameters than in its 1991 Policy; (2) it has, for the most part, abandoned the 1991 Policy’s use of a case

- by

- case analysis for potentially confidential information in favor of a blanket ruling; and (3) it has disregarded the case law that holds thatDraft Deliberative

70 “emission data” is limited to that information nece ssary to determine the basic characteristics, e.g., amount, of a source’s emissions. Yet, EPA has never provided a substantial analysis squaring its new, expansive interpretation of “emission data” with its existing interpretation under the 1991 Policy. In stead, EPA simply denied that it was changing its interpretation of “emission data.” For example, although EPA conceded that “there are many data elements under Part 98 that are not addressed in EPA’s 1991 notice,” 75 Fed. Reg. at 39105, it summarily decla red that the 1991 Policy put “the public ... on notice that EPA considers many of the data elements in this data category to be emission data and thus not entitled to confidential treatment.” Id. at 39107; see also id. at 39108 (claiming that EPA’s new inter pretation of “emission data” is “consistent with the” 1991 Policy). EPA’s new interpretation of “emission data” is not only inconsistent with the 1991 Policy because it is more expansive, it is inconsistent because EPA has expanded its interpretation of “e mission data” in a blanket manner. Although the 1991 Policy states that its listing of emission data “is not exhaustive,” 56 Fed. Reg. at 7042, it also states that any additional data will only be deemed to be “emission data” after a case

- by

- case review. I d. at 7043. EPA has not only changed its interpretation of “emission data” to include all “inputs to emission equations”, it has done so while abandoning its policy of performing a case

- by

- case analysis. EPA has never acknowledged this change from its exis ting interpretation, much less provide a reasoned analysis to justify the change. Lastly, EPA’s prior interpretation of “emission data,” both in its regulatory definition and in the 1991 Policy, limited the term to include only that information “necessary” to determine, among other things, the identity, amount, frequency, and concentration of emissions. Id. § 2.301(a)(2)(i)(A); 56 Fed. Reg. 7042. At least one court has struck down an EPA decision that facility process information was “emission data” because it was not “necessary” to determine the facility’s emissions. There, the court held that EPA failed to support its cursory claim that the information was “the only practical way to determine the amount of pollutants emitted.” RSR Corp. v. EPA, 588 F. Supp . 1251, 1256 (N.D. Tex. 1984). Thus, a necessity determination is a material consideration in determining what is or is not “emission data.” Yet, in its 2010 proposal, EPA apparently discarded the requirement of necessity and did so without any acknowledge ment or reasoned analysis. EPA’s policy change makes little sense given that the Agency has already ensured that the emission calculation inputs are not ‘necessary’ for EPA to acquire and verify information on reporters’ emissions. EPA has stated that it w ill rely on a verification summary generated by the reporting tool

– which will not include any of the emission calculation inputs

– ‘as a first step for conducting verification once the annual report is submitted.’ 78 Fed. Reg. at 55,999; see also 78 Fed. Reg. at 56,002 (if a reporter overrides a value calculation, the verification summary ‘would note a discrepancy, which would prompt EPA for further review after the reporter submits the annual report.’). These verification summaries would provide EPA with the ‘necessary’ emission data, and the means to verify their accuracy, even if the emission calculation inputs were deemed to be confidential business information. In other words, EPA has already designed the verification tool to ensure that the emission calculation inputs are not ‘necessary’ for GHG reporting purposes. ACC appreciates that EPA has recognized in this proposed rule that certain inputs to emission calculations are sensitive business information and is therefore proposing an alternative verif ication tool to prevent those data inputs from being reported to EPA and potentiallyDraft Deliberative

71 disclosed. ACC also appreciates that EPA is proposing that it is not necessary for these inputs to be reported to EPA, collected by EPA or that EPA have access to these in puts. At the same time, EPA’s 2010 proposed regulatory classification of such inputs as “emission data” creates the continued risk of disclosure of this data under the Clean Air Act. The Agency must clarify in its final rule that the 440 identified inputs (1) are confidential business information entitled to protection from public disclosure under Section 114(c), (2) do not need to be reported or collected by EPA to verify the accuracy of the reporting, and therefore (3) are not considered to be “emission d ata” pursuant to Section 114(c) of the Clean Air Act. Response: The EPA clarifies that P art 98, as amended today, no longer requires the reporting of the 395 25 inputs identified in this final rule. Please see the EPA’s response to comment EPA

- HQ

OAR

- 2010

- 09 29

- 0080, Excerpt 6 , for the EPA’s response to all other aspects of this comment.

Commenter Name: Robert A. Reich Commenter Affiliation: DuPont Document Control Number: EPA

- HQ

- OAR

- 2010

- 0929

- 0071 Comment Excerpt Number: 7

Comment: DuPont has been engaged with ACC in reviewing and commenting on the legal issues raised by this proposal. We note that we endorse the ACC comments that will be submitted. We are particularly concerned that EPA

– while trying to accommodate the need to maintain confidentiality of the inputs to emissions equations that are particularly sensitive form a CBI standpoint

– has not recognized these sensitive items as CBI. For the reasons stated in the ACC comments, DuPont strongly urges EPA to recognize these inputs to emissions equatio ns as CBI. Response: Please see the EPA’s response to comment EPA

- HQ

- OAR

- 2010

- 0929

- 0080, Excerpt 6 , for the EPA’s response to this comment.

Commenter Name: Peter Pagano Commenter Affiliation: American Iron and Steel Institute 26 Document Control Number: EPA

- HQ

- OAR

- 2010

- 0929

- 0072 Comment Excerpt Number: 2

Comment: EPA is also proposing to remove the reporting requirement of 440 “inputs to equations” data elements in the Subparts listed in Table 2 of the preamble, also referenced in Table 1 of the August 20 13 Lisa Grogan

- McCulloch memorandum “List of ‘Inputs to Equations’ Data Elements Proposed Not To Be Reported” (Docket ID No. EPA

– HQ

– OAR

– 2010

– 0929

-

25 Refer to Section s II.B.2 and II.B.3 of the preamble as well as the memorandum “Summary and Explanation of Minor Revisions to the Proposed Rule” (August 2014) for discussion about the cha nges to the number of inputs to equations being removed from reporting since proposal. 26 This comment was also supported by United States Steel Corporation (Docket I D No. EPA

- HQ

- OAR

- 2010

- 0929

- 0078).Draft Deliberative

72 0044). EPA, however, does not include language in this proposal specifically classifying them as CBI, even th ough the proposed rule effectively treats them as such by only requiring to enter them in the verification tool, and not the reporting tool and also because the new data elements in Table 4 of the preamble, which are derived from the same “inputs to equati ons,” are subsequently defined as CBI in Table 5 of the preamble. AISI requests that EPA include language that expressly recognizes the CBI status of the 440 “inputs to equations” data elements and in accordance with our comments treat this data consistent ly as such. Response: Please see the EPA’s response to comment EPA

- HQ

- OAR

- 2010

- 0929

- 0080, Excerpt 6 , for the EPA’s response to this comment.

Commenter Name: Angus E. Crane Commenter Affiliation: North American Insulation Manufacturers Association Documen t Control Number: EPA

- HQ

- OAR

- 2010

- 0929

- 0079 Comment Excerpt Number: 1

Comment: Glass production facilities must report specific overall greenhouse gas emissions, which is appropriate as the stated purpose of the Rule is to collect greenhouse gas emissions data. However, under the existing regulations, the calculation of emissions requires these same facilities to report the annual mass of each carbonate

- based raw material charged to each furnace; annual quantity of glass produced from each furnace and for a ll furnaces combined; annual process emissions; and the carbonate

- based mineral mass fraction for each carbonate

- based raw material charged to a continuous glass melting furnace. ( See Glass Production Final Rule: Mandatory Reporting of Greenhouse Gases, 40 C.F.R. Part 98, Subpart N, and especially 98.146(b).) This detailed and process

- specific information does not constitute data that is actually required in order for EPA to determine greenhouse gas emissions. In fact, not only is this information not neces sary, it is confidential business information embodying trade secrets and market sensitive data. EPA’s most recent proposal only purports to protect some of this data from immediate public access.
CONFIDENTIAL BUSINESS INFORMATION, TRADE SECRETS, AND MARKE T SENSITIVE DATA SHOULD NOT BE COLLECTED BY EPA
As referenced above, the specific type of data required by EPA of fiber glass manufacturers is the very type of data to which the Federal Trade Commission (“FTC”) identified as having possible antitrust implications in its September 30, 2010 comments to EPA on the Agency’s “Proposed Confidentiality Determinations.” The FTC noted that EPA historically determined whether information qualified for confidential treatment on a case

- by

- case basis. EPA, however, concluded that the volume of greenhouse gases would make a case

- by

- case determination unduly burdensome to the Agency. In response to that decision, the FTC stated: The FTC is concerned, however, that the proposal may allow for the public release of compe titively sensitive information. Specifically, because of the potential risk to competition, we suggest that data reported under three categories

– “inputs to emission equations,” “unit/process ‘static’ characteristics that are not inputs to emissionDraft Deliberative

73 equati ons,” and “unit/process operating characteristics that are not inputs to emission equations,”

– may warrant confidential protection. To clarify that these categories identified by the FTC impact glass companies, it is helpful to refer again to the FTC’s co mments which state that “[i]nputs to emission equations include, for example, volume of fuel combusted per year; production/throughput and raw material consumption, such as petrochemical production; characteristics of raw materials, products, and by

- produc ts; and facility operating information." [ Footnote: See 75 Fed. Reg. at 39,108

- 09 (describing types of data that would fall within the “inputs to emission equations” data category).] These are the very data points required of glass companies. The FTC expla ins why public disclosure of sensitive information creates antitrust concerns: [S]haring information among competitors may increase the likelihood of collusion or coordination on matters such as price or output. [ Footnote: FTC/DOJ GUIDELINES FOR COLLABORAT IONS AMONG COMPETITORS §3.31(b).] Coordinated interaction among competitors includes collusive agreements, but it can also include conduct not necessarily condemned by the antitrust laws. [ Footnote: This includes parallel accommodating conduct by rivals in which “each rival’s response to competitive moves made by other is individually rational, and not motivated by retaliation or deterrence, nor intended to sustain an agreed

- upon market outcome, but nevertheless emboldens price increases and weakens competi tive incentives to reduce prices or offer customers better terms.” FTC/DOJ HORIZONTAL MERGER GUIDELINES §7.] Firms that engage in coordinated interaction are better able to predict, even absent explicit agreement, how rivals will react to price changes. [ F ootnote: The FTC recognizes that rivals in the petroleum and other industries collect market intelligence to anticipate and respond to rivals’ output and pricing decisions. See, e.g. , In re Chevron Corp., FTC Docket No. C

- 4023, Analysis of Proposed Consent Order to Aid Public Comment (Sept. 7, 2001) (“Integrated refiner

- marketers carefully monitor the prices charged by their competitors’ retail outlets, and therefore can readily identify firms that deviate from a coordinated or collusive price.”).] The pote ntial for information disclosure to harm competition will depend on the structure of the affected market and the type of information disclosed. [ Footnote: See Todd v. Exxon Corporation, 275 F.3d 191, 199 (2d. Cir. 2001) (quoting U.S. v. United States Gypsu m Co., 438 U.S. 422, 441 n. 16 (1978)) (“A number of factors including most prominently the structure of the industry involved and the nature of the information exchanged are generally considered in divining the precompetitive or anticompetitive effects of [the information disclosed.]”); see also FTC/DOJ GUIDELINES FOR COLLABORATIONS AMONG COMPETITORS §3.31(b).] Given these antitrust concerns, NAIMA urges EPA to abandon the collection of data not directly related to actual greenhouse gas emissions. Specific ally, the information requested of glass companies qualifies as confidential business information and in some instances could constitute trade secrets. NAIMA is concerned that many of these requests seek information that is proprietary, confidential busine ss information and market sensitive. If this information, despite EPA’s best intentions and controls, were inadvertently divulged, it could potentially impact the competitive advantage in the marketplace of many companies. Equally important, the reporting requirements for such sensitive information will elicit information that is irrelevant to EPA’sDraft Deliberative

74 purpose and statutory mandate here. For example, the “Annual quantity of glass produced” is irrelevant to emissions. ( See Glass Production Final Rule: Mandatory Reporting of Greenhouse Gases, 40 C.F.R. Part 98, Subpart N, 40 C.F.R. § 98.146(b)(3).) Therefore, NAIMA continues to believe that the Agency should require facilities to report their emissions, but the quantity of raw materials and information that might reveal their related mineral mass fractions and other sensitive data should not be reported. The questionable relevance of the information does not justify the gravity of the risks. Even if EPA planned to accept the information under a CBI arrangement and even if EPA guaranteed protection of trade sensitive data, as it purports to do with some of the data requested, the risk of disclosure of sensitive information would still exist for this information, which has only limited, if any, benefit to regulators. Therefore, NAIMA recommends that EPA not require the glass industry to report the quantity of glass produced, the quantity of each carbonate

- based raw material charged to all furnaces combined and any other information that similarly could divulge product formulations and production quantities. EPA has stated that it “would protect any information claimed as CBI in accordance with regulations in 40 C.F.R. part 2, subpart B.” [ Footnote: 74 Fed. Reg. at 16,463 (April 10, 2009).] However, NAIMA notes that in general, emission data collected under CAA sections 114 and 208 cannot be considered CBI. Response: The EPA proposed, and is finalizing with no changes, that all of the inputs to equations in subpart N, glass production, would be entered into IVT rather th an reported to the EPA. Regarding the commenter’s assertion that the “annual mass of each carbonate

- based raw material charged to each furnace; annual quantity of glass produced from each furnace and for all furnaces combined; annual process emissions; and the carbonate

- based min eral mass fraction for each carbonate

- based raw material charged to a continuous glass melting furnace” are not needed : they are important for verifying the reported emissions. This amendment, which requires that these data elements be entered into IVT ins tead of being reported, simply changes the verification approach and does not change the fact that these data remain important for verification purposes. Regarding the remainder of the comments , please see the EPA’s response to comment EPA

- HQ

OAR

- 2010

- 092 9

- 0080, Excerpt 6 , for the EPA’s response.

Commenter Name: Angus E. Crane Commenter Affiliation: North American Insulation Manufacturers Association Document Control Number: EPA

- HQ

- OAR

- 2010

- 0929

- 0079 Comment Excerpt Number: 2

Comment: EPA IS ONLY OFFERING LIMITED PROTECTION TO CERTAIN TYPES OF CONFIDENTIAL BUSINESS INFORMATION NAIMA appreciates EPA’s efforts to protect information that the Agency considers “inputs to emissions equations” through removal of reporting requirements for that data and utilizati on of a verification tool. This proposal, if implemented effectively, may reduce concerns over potential public disclosure of certain confidential business information. Unfortunately, EPA has notDraft Deliberative

75 considered all requested information for reporting to be “in puts to emissions equations” and so would continue to require reporting of key confidential information without sufficient protection. Moreover, it is not clear how the Agency may make use of the “inputs to emissions equations” data in the future without r isk of disclosure. EPA has determined, in the Proposed Rule, that certain information should not be required to be reported by companies within the Glass Production sector that are covered by Part 98 Subpart N. EPA has considered three of nine subsections of data reporting requirements under 40 C.F.R. 98.146 as “inputs to emissions equations” data and proposed that they not be reported. See Table 3, 78 Fed. Reg. at 55,999; id . at 56,019. They are:

 Annual quantity of each carbonate

- based raw material charged (tons) to each continuous glass melting furnace (currently part of 98.146(b)(2))

 Carbonate

- based mineral mass fraction (percentage, expressed as a raw decimal) for each carbonate

- based raw material charged to a continuous glass melting furnace (currently 98.146(b)(4)); and

 The fraction of calcination achieved for each carbonate

- based raw material, if a value other than 1.0 is used to calculate process mass emissions of CO 2 (currently 98.146(b)(6)). Significantly, EPA left unchanged and unprotected the remaining six elements that must be reported under section 98.146(b), several of which may be used in determining the greenhouse gas emissions calculation, N

- 1, under 40 C.F.R. 98.143(b). Moreover, EPA still requires reporting of the annual quantity of eac h carbonate

- based raw material charged (tons) to all furnaces combined. Proposed amendment to 98.146(b)(2), 78 Fed. Reg. at 56,019. At a minimum, EPA should also remove from reporting requirements the other elements of 98.146(b) used in the N

- 1 calculation s, e.g. , the entirety of (b)(2); (b)(1) (annual process emissions as opposed to total facility emissions); (b)(5) (results of tests to verify carbonate

- based mineral mass fraction); (b)(7) (method used to determine fraction of calcination); and (b)(8) (tot al number of continuous glass melting surfaces). [ Footnote: 98.146(b)(9), the number of times in the reporting year that missing data procedures were followed, is admittedly more of a data quality assurance requirement rather than an input to equation elem ent, though it is still a provision that may be better utilized within the verification tool.] For example, the information required to be reported under 98.146(b)(5) would allow competitors to gain the same access to confidential information on types of m aterials and amounts used in production that would have been accessible through one of the provisions removed by EPA. 98.146(b)(4). Further, the annual quantity of glass produced, 98.146(b)(3), has no relevance to any calculations, and should not be a repo rting requirement or verification element, as stated above. It should be deleted in its entirety from 98.146 and not made subject to input in the tool. Indeed, to the extent EPA considers any other portions of 98.146(b) to not be “inputs to emission equati ons,” they are then not relevant to greenhouse gas reporting or verification under Subpart N and should not be required to be reported or input into the verification tool at all. Thus, while EPA purports to offer some protections to certain types of reques ted confidential business information, its coverage is incomplete, and the Agency still requests information beDraft Deliberative

76 reported that is commercially sensitive and either irrelevant to the calculations or information that should be more adequately protected from d isclosure. Response: The EPA appreciates the commenter’s support for the proposal to remove reporting for “inputs to equations” data elements. The EPA is finalizing as proposed the removal of all inputs to equations in subpart N and the requirement to ente r these inputs into IVT. Regarding the comment that the EPA should consider removing reporting for other data required to be reported in 40 CFR 98.146

— i.e., 40 CFR 98.146(a)(1), (a)(2), (b)(1), (b)(2) (furnaces combined), (b)(3), (b)(5), and (b)(7) through (b)(9) : n one of these data are inputs to emission equations. This action is addressing inputs to emission equations. Other types of reporting elements are collected in e

- GGRT and are handled as CBI if the EPA has determined that they
are CBI (refer to the final CBI rule , 76 FR 30782, May 26, 2011). For example, the EPA has determined that 40 CFR 98.146(b)(2), (3), and (5)(iii) qualify as CBI. Regarding the usefulness of these data , refer to the April 10, 2009 , proposal (74 FR 16448) for EPA’s rationale for collecting these data. Regarding the comment expressing concern about the EPA’s protection of data entered into IVT , refer to Section II.A.3 of the preamble to the final rule for the EPA’s response to this comment.



### 8.0 Revision of Table A

- 8

Commenter Name: Charles Johnson Commenter Affiliation: Aluminum Association Document Control Number: EPA

- HQ

- OAR

- 2010

- 0929

- 0086 Comment Excerpt Number: 4

Comment: The EPA needs to add Equation F

- 4 to the list in Table A

- 8 of the proposed rule. Equation F

- 4 is required to calculate C2F6 emissions. Equation F

- 2 (or F

- 3) and F

- 4 are used to calculate monthly emissions of CF4 and C2F6. Equation F

- 1 is then used to calcu late annual emissions of these pollutants as the sum of monthly values. If the EPA intends that the verification tool will be used to determine annual CF4 and C2F6 emissions for comparison to reported annual emissions, Equation F

- 1 should also be added to the list in Table A

- 8. Response: The proposed amendments did not require that the input to Equation F

- 4 be entered into IVT, because this input is not required to be reported under Part 98. However, upon further evaluation in response to this comment, we a gree with the commenter that this data element is needed to allow IVT to calculate and verify emissions. According ly , in the final rule, we are requiring that the input to Equation F

- 4 be entered into IVT.



### 9.0 EPA’s Harm Analysis Results, Including Removal of Requirements to Report Certain Inputs to Emissions Equations

9.1 EPA’s Harm Analysis Results

— General Comments

Commenter Name: Leslie Sue Ritts Commenter Affiliation: National Environmental Development Association ’ s Clean Air ProjectDraft Deliberative

77 Document Control Number: EPA

- HQ

- OAR

- 2010

- 0929

- 0075 Comment Excerpt Number: 2

Comment: The record of decision based on the agency’s four

- step evaluation described at pages 55997

- 998 of the Notice of Proposed Rulemaking provide a strong legal foundation for finalizing the proposal. Response: The EPA thanks the commenter for their support.

Commenter Name: Lorraine Krupa Gershman Commenter Affiliation: American Chemistry Council 27 Document Control Number: EPA

- HQ

- OAR

- 2010

- 0929

- 0085 Comment Excerpt Number: 8

Comment: ACC greatly appreciates EPA’s recognition of the sensitivity of certain industry data and its proposal to protect this data from public disclosure. However, ACC continues to believe that reporting facilities should be able to assert individual CBI for any required dat a element. It is possible that, despite EPA’s best efforts to identify all the data elements that should be protected from public disclosure, there may be certain data elements that need CBI protection at individual facilities or in specific situations. By not allowing facilities to assert CBI, EPA continues to leave open the possibility that a facility is required to publicly disclose CBI data. This can be easily rectified by EPA adding in an option for a petition request that would need to be submitted, f or example, 6 months prior to the reporting deadline so that it can be approved or denied prior to the required data submittal. If EPA fails to act on the petition, then the data would be protected as CBI for that reporting year and until such time as EPA acts on the petition. Alternatively, EPA could include a simpler process whereby reporters could designate certain data as CBI and then provide additional information to substantiate their claim upon request by EPA. Response: To the extent that the comment er’s concerns and suggestions pertain to a copy of the data entered into the IVT that is kept at facilities, as explained in Section II.A.3 of the preamble to the final rule, the EPA does not envision collection of such record s

. Should that occur, the EPA will treat such data in accordance with CAA Section 114 and the EPA’s implementing regulations under 40 CFR part 2, subpart B. The EPA does not see a need to provide a new process, such as the petition process suggested by the commenter, nor did the commen ter explain why the current applicable law and regulations regarding treatment of CBI should not be followed. To the extent that the comment also pertains to P art 98 data to be reported to the EPA, the EPA notes that it has made final confidentiality dete rminations for most of the data through rulemaking. Further, the EPA wants to clarify that 40 CFR 2.301 (d) governs treatment of P art 98 data. The EPA has not proposed to change any aspect of 40 CFR 2.301(d) in this rulemaking

. To

27 This comment was also supported by Dow (Docket I D No. E PA

- HQ

- OAR

- 2010

- 0929

- 0068).Draft Deliberative

78 the extent that the commen ter is seeking to change any aspect of that regulation, the comment is outside the scope of this rulemaking.

9.2 EPA’s Harm Analysis Results

— Subpart C

Commenter Name: Karen Ritter Commenter Affiliation: API Document Control Number: EPA

- HQ

- OAR

- 2010

- 0929

- 0074 Comment Excerpt Number: 9

Comment: API concurs with the decision about the listed data elements that are not to be publicly reported and which will undergo an alternative verification procedure. In particular, API supports EPA’s proposal to retain confiden tiality for the listed data elements which are used for GHG emissions calculations as inputs to emission equations, including:

 The 26 data elements under Subpart C for stationary fuel combustion sources at industrial sources; Response: The EPA thanks the c ommenter for their support.

Commenter Name: Glenn E. Davis Commenter Affiliation: HelperBroom LLC

— Mississippi Lime Document Control Number: EPA

- HQ

- OAR

- 2010

- 0929

- 0069 Comment Excerpt Number: 4

Comment: MLCO is also supportive of USEPA's determination that many subpart C data elements are now designated CBI in Table 1 and will be maintained as such. [See DCN EPA

HQ

- OAR

- 2010

- 0929

- 0069 for Exhibit A.] Response: The EPA wants to clarify that the Agency has not made confidentiality determinations for any inputs to emission equations , either in this final rule or any other final action. Any such determination must be made in accordance with CAA Section 114 and the EPA’s implementing regulations in 40 CFR part 2, subpart B

. The Agency’s four

- step evaluation (see Se ction I.C of the preamble to the final rule) does not involve such analysis.

9.3 EPA’s Harm Analysis Results

— Subpart G

Commenter Name: Wade Foster, Manager, Scientific Programs Commenter Affiliation: The Fertilizer Institute Document Control Number: EPA

- HQ

- OAR

- 2010

- 0929

- 0064 Comment Excerpt Number: 7

Comment: EPA proposes to (1) make confidentiality determinations for eight “inputs to emission equations” data elements. [Refer to the table on pages 3

- 4 of the comment letter, whichDraft Deliberative

79 lists eight inputs i n paragraphs 98.76(b)(2) and (b)(7)

- (11).] TFI agrees that these data elements should all be maintained as confidential. The source category is predominately “concentrated”/”moderately concentrated” based on FTC guidelines, meaning that there are competi tive concerns with the release of these data elements. Thus, this conclusion alone warrants protection of these eight data elements. Also, as noted by EPA, none of the data elements were identified as being publicly available based on the Agency’s record r eview, [ Footnote: Memorandum from Lisa Grogan

- McCullough, EPA, to Docket EPA

- HQ

- OAR

- 2010

- 0929, entitled “Summary of Data Collected to Support Determination of Public Availability of Inputs to Emission Equations for which Reporting was Deferred to March 31, 2015” at 67 (Aug. 2013) (hereinafter “EPA Step 1 Memorandum”).] confirming that ammonia producers consider these data CBI. Finally, the data elements reflect production or raw material data that EPA has correctly concluded “would likely cause competitive harm” if disclosed, [ Footnote: EPA Step 2 Memorandum at 18, 61

- 62] and TFI members routinely hold these data elements as confidential. Response: The EPA thanks the commenter for their input on certain aspects of the EPA’s four

step evaluation

. P lease see t he EPA’s response to comment EPA

- HQ

- OAR

- 2010

- 0929

- 0069, Excerpt 4 in Section 9.2 of this document

. 9.4 EPA’s Harm Analysis Results

— Subpart O

Commenter Name: Mark Roberts and Avipsa Mahapatra Commenter Affiliation: Environmental Investigation Agency Document Control Number: EPA

- HQ

- OAR

- 2010

- 0929

- 0082 Comment Excerpt Number: 2

Comment: EPA should withdraw the portions of proposed amendments to the recordkeeping requirements that do not protect true CBI concerns and undermine the public’s ability to track greenho use gas emissions. Specifically, withdrawing the reporting requirement of the mass and quantity of production of gases under subparts L and O, and the reporting of the destruction efficiency rate does not protect a valid CBI concern and is a great disservi ce to the public. See, e.g., 40 C.F.R. § 98.126(b)(5)

- (9), (f)(1), (g)(1), (h)(2); § 98.156(a)(7)

- (10), (b)(1)

- (2), (d)(5), (e)(1). The mass and amount of gases produced and the destruction efficiency rates will not disclose the methodologies for making th ose substances or protect appropriate CBI concerns anymore than a farmer not disclosing the amount of corn grown on a hectare of land would protect CBI. A review of the destruction efficiency helps evaluate the efficiency of different technologies, whether companies are optimizing the equipment and whether different collection techniques such as collection and destruction at a central facility is as effective as an in

- line destruction technology. Data reported under the current reporting scheme demonstrate how optimizing the operation of production and destruction technologies can dramatically reduce emissions of these super greenhouse gases and that production facilities with in

- line destruction technologies emit dramatically less than facilities that colle ct by

- product gases for destruction at another facility. EPA should withdraw these proposed changes as the needs of public transparency outweigh any alleged CBI concern. Response: The EPA notes that the inputs to emission equations whose reporting deadline was deferred until 2015 for subpart L are being finalized in a separate final action.Draft Deliberative

80 Regarding the comments related to subpart O , the demonstrated destruction efficiency of the destruction device for each fluorinated GHG fed into the device from the proc ess (40 CFR 98.15 6(d)(5) and (e)(1)) , provide data that could be used to calculate the amount of fluorinated GHG in a waste stream removed from the process and sent to a destruction device. This data element would reveal information on process efficiency a nd operating costs. Competitors could deduce the amount of fluorinated GHG sent to a destruction device if the annual emissions of each fluorinated GHG , as required to be reported under 40 CFR 98.156(a)(11)

- (13), are known and if it could be deduced that t he emissions consist exclusively of post

- destruction device emissions (information that a competitor knowledgeable of some aspects of the facility and/or of fluorine chemistry might deduce). As a result, the EPA’s harm evaluation for these inputs to emissi on equations remains unchanged. Regarding the comments related to 40 CFR 98.156(a)(7 )

– ( 10) and (b)(1 )

– ( 2 ) , please see the EPA’s response to comment EPA

- HQ

- OAR

- 2010

- 0929

- 0082, Excerpt 7 , for the EPA’s response to this comment.

Commenter Name: Mark Roberts and Avipsa Mahapatra Commenter Affiliation: Environmental Investigation Agency Document Control Number: EPA

- HQ

- OAR

- 2010

- 0929

- 0082 Comment Excerpt Number: 7

Comment: EPA proposes to remove the requirement for reporting the annual mass of HFC

- 23 generated, s ent off site for sale or destruction, and fed into a destruction device and ultimately destroyed. See 40 C.F.R. § 98.156(a)(2), (a)(7)

- (10), (b)(1)

- (2). EPA justifies the amendment to reporting requirements under concern that reporting this mass of HFC

- 23 produced or used by a reporter would likely cause competitive harm as the production or throughput data could reveal confidential information and/or strategy. This justification is misplaced and lacks a cogent rationale where the reporting of the annual ma ss of HCFC

- 22 production is still required. 40 C.F.R. § 98.156(a)(1). Under the evaluation of individual data elements conducted by EPA, requiring the annual mass production of HCFC

- 22 was not deemed to be detrimental to a firm’s competitiveness. HFC

- 23 ha s a global warming potential (GWP) of 14,800 and data on production mass of this gas does not necessarily reveal anything about confidential information and/or strategy. The mass of HFC

- 23 produced primarily has to do with the operation of production equip ment, and the operation and maintenance of the destruction equipment than with confidential information and/or strategy. Both DuPont and Honeywell reported to EIA that they were able to reduce the amount of HFC

- 23 produced by optimizing the operation and
m aintenance of their production processes. The significant drops in HFC

- 23 emissions by both of these companies show no CBI or strategy other than they improved production to reduce byproduct emissions. There is very little commercial use for HFC

- 23 and whe re it is being sold, there are alternatives. All HCFC

- 22 producers around the world having been looking for markets for HFC

- 23 since HFC

- 23 destruction credits and have focused on the same uses. It can hardly be said that anyone will be surprised if a comp any markets fire suppression equipment with HFC

- 23 or tries to sell it for use it as a solvent. CBI has to protect something that is confidential. If a company marketsDraft Deliberative

81 HFC

- 23 for a new use, the marketing of the new use will be public so there is no legitim ate reason to allow companies not to report their uses of HFC

- 23. EPA should continue to require the reporting and publication of information of annual mass and quantity of HFC

- 23 produced and the amount used for all uses under the currently drafted data
e lements, and should let the deferral of these data elements expire on March 31, 2015. Response: For subpart O, the commenter specifically objects to the removal of reporting requirements in 40 CFR 98.156(a)(2), (a)(7)

- (10), and (b)(1)

- (2). First, the comme nter’s assertion that reporting of the loss factor used to account for the loss of HCFC

– 22 upstream (40 CFR 98.156(a)(2) would not disclose the methodologies for making fluorine

- containing substances is misplaced. The potential disclosure of production me thods is not the concern identified in the EPA’s evaluation. As noted in the EPA’s evaluation, the EPA determined that the loss factor indicates process performance and efficiency, as well as cost to do business (i.e., how much of a facility’s product is l ost). The EPA has also determined that the loss factor, used in conjunction with HCFC

- 22 emissions data reported under TRI, could be used to calculate HCFC

- 22 production, which has been determined to be CBI under a separate rulemaking (76 FR 30782, May 26, 2011). Regarding the annual mass of the HFC

- 23 generated, the annual mass of any HFC

- 23 sent off site for sale, the annual mass of any HFC

- 23 sent off

- site for destruction, the mass of HFC

- 23 in storage at the beginning and end of the year, the annual ma ss of HFC

- 23 fed into the destruction device, and the annual mass of HFC

- 23 destroyed (40 CFR 98.156(a)(7 )

– ( a)(10),(b)(1 )

– ( b)(2 )): the commenter argues that the EPA lacks a cogent rationale where the reporting of the annual mass of HCFC

- 22 production (40 C FR 98.156(a)(1)) is still required. As noted in the EPA’s evaluation, the EPA determined that release of these data elements would provide production or raw material data. The annual mass of HFC

- 23 generated (40 CFR 98.156(a)(1)) provides an upper bound to the amount of HFC

- 23 captured for export or sale in the U.S., and is related to both the quantity of HCFC

- 22 produced and the efficiency of the HCFC

- 22 production process. Specifically, this efficiency decreases as the HFC

- 23 generation rate (kg HFC

- 23 ge nerated/kg HCFC

- 22 produced) increases. Competitors may be able to use plant capacity estimates and the known range of HFC

- 23 generation rates to estimate a range of HCFC

- 22 production and/or limit the range of HFC

- 23 generation rates. Therefore, while at least one company has released information on its HFC

- 23 generation rates, this type of information is generally considered sensitive by producers. Although the EPA requires reporting of annual mass production of HCFC

- 22 (40 CFR 98.156(a)(1)), this data el ement is not an input and has been determined to be CBI under a separate rulemaking (76 FR 30782, May 26, 2011). Furthermore, regarding 40 CFR 98.156(a)(7)

- (a)(10) and (b)(1)

- (b)(2), the EPA notes that it is not the identity of the uses of HFC

- 23 that is a disclosure concern, but the quantity of HFC

- 23
c aptured and sold for these uses. This quantity is sensitive in itself and may also be used to estimate production. For instance, the annual mass of HFC

- 23 sent off

- site for sale would provide direct insight into process performance and/or cost to do business. The annual mass of any HFC

- 23 sent off

- site for destruction, the mass of HFC

- 23 in storage at the beginning and end of the year, the annual mass of HFC

- 23 fed into the destruction device, and the annual mass of HFC

- 23 destroyed are related to the quantities generated and sold and have disclosure concernsDraft Deliberative

82 for the same reasons. As a result, the EPA’s harm evaluation for these inputs to equations remains unchanged.

9.5 EPA’s Harm Analysis Results

— Subpart P

Comme nter Name: Karen Ritter Commenter Affiliation: API Document Control Number: EPA

- HQ

- OAR

- 2010

- 0929

- 0074 Comment Excerpt Number: 10

Comment: API concurs with the decision about the listed data elements that are not to be publicly reported and which will undergo an alternative verification procedure. In particular, API supports the EPA’s proposal to retain confidentiality for the listed data elements which are used for GHG emissions calculations as inputs to emission equations, including: t he six existing data elements and the two new data elements for reporting under Subpart P; Response: The EPA thanks the commenter for their support of the alternative verification procedure

. 9.6 EPA’s Harm Analysis Results

— Subpart S

Commenter Name: Glenn E. Davis Commenter Af

filiation: HelperBroom LLC

— Mississippi Lime Document Control Number: EPA

- HQ

- OAR

- 2010

- 0929

- 0069 Comment Excerpt Number: 3

Comment: The USEPA proposes to consider a number of the important inputs to emissions equations as CBI on a permanent basis.

We concur with USEPA's determination that the following subpart S data elements are designated CBI and will be maintained as such: [see inserted table listing 9 Subpart S inputs to equations in section 98.196(b)(2), (3), (5), (6), (8), (10), (11), and (12)].

Since i ssuance of the proposed Mandatory Greenhouse Gas Reporting Rule ("GHGRR") in April 2009, MLCO has had, and continues to have, a substantive interest in the associated rule making. The CBI treatment issues are of significant importance to MLCO in protection of competitively sensitive information. Accordingly, we have provided numerous comment letters to USEPA, including those dated September 7, 2010 and March 4, 2011 regarding proposed treatment of CBI in connection with the GHGRR. Copies of MLCO's prior com ment letters are attached as Exhibit A for your ready reference. [See DCN EPA

- HQ

- OAR

- 2010

- 0929

- 0069 for Exhibit A.] A complete description of MLCO, its facilities, and important, distinctive market conditions in the lime industry are described fully in Sec tion II of our September 7, 2010 comment letter. In addition, the letters in Exhibit A contain information regarding data elements that MLCO considers CBI and, if publicly released to competitors, would cause significant, unintended harm to important comme rcial interests. Such data elements include product analytical data and relatedDraft Deliberative

83 emission factors, unit and total facility production capacities, monthly and annual sales volumes, and fuel

- specific consumption and quality data. MLCO' s previous comments exp lained the domestic lime industry is highly concentrated with US and foreign producers and very competitive. Moreover, there are commodity aspects to production and marketing of some grades of lime, there are also critical but often subtle differences betw een lime products based on regional and local lime attributes and how it is produced at different lime plants. Accordingly, many of the data elements on emissions inputs and other elements are very sensitive to each lime producer's competitive position. Ac cess to CBI can be used to reverse engineer a specific lime plant's production efficiency, cost per unit of lime, and process for lime production. This threatens unfair competition, price pressure on rivals, and ultimately harm to the competitive process. Notably, manufacturers of lime substitutes or lime process replacements could also obtain an unfair advantage in competition for specific types of applications, including cement companies and Chinese magnesite producers. Response: The commenter was incorre ct in his assertion that the EPA has now proposed to permanently consider those inputs to emission equations as CBI. Please see the EPA’s response to comment EPA

- HQ

- OAR

- 2010

- 0929

- 0069, Excerpt 4 in Section 9.2 of this document

.

Commenter Name: William C. Herz Commenter Affiliation: National Lime Association 28 Document Control Number: EPA

- HQ

- OAR

- 2010

- 0929

- 0089 Comment Excerpt Number: 1

Comment: In a July 7, 2010 proposed rule, EPA proposed to require the reporting of certain inputs to emissions calculatio ns, such as quantities of lime products sold and quantities of each types of fuel used. NLA submitted comments on Sept. 7, 2010 demonstrating that these inputs included information that was highly sensitive in the competitive market for lime products. On D ec. 27, 2010, EPA published a Call for Information in which it proposed to temporarily defer the public reporting of the emissions inputs in question. NLA submitted comments on March 7, 2011, supporting the deferral of these inputs. Both sets of prior NLA comments are attached, and are incorporated herein by reference. [See Docket I D No. EPA

- HQ

- OAR

- 2010

- 0929

- 0089 for the attached comments.] EPA has now proposed to permanently consider those inputs to constitute confidential business information (CBI). For t he reasons stated in its prior comments, NLA strongly supports EPA’s current proposal. Briefly, the previous comments explained that the U.S. lime industry is highly competitive, and that there are critical differences among lime products produced at diffe rent lime plants. The data contained in the emissions inputs could be used by competitors

– both domestic and foreign

– to gain a clear picture of a lime plant’s specific “recipe” for making lime, its production efficiency, and its cost per unit of lime pro duced. That information could then be

28 This comment was also supported by HelperBroom LLC

— Mississippi Lime (Docket I D No

. EPA

- HQ

- OAR

- 2010

- 0929

- 0069).Draft Deliberative

84 used to put price pressure on rivals, or to take other steps detrimental to competition. These effects are not limited to competition within the lime industry; for example, cement companies compete with lime for soil s tabilization projects and Chinese magnesite producers compete with U.S. lime companies to sell to steelmakers. Response: The EPA thanks the commenter for his support of the proposed rule

. However, we note that t he commenter was incorrect in his assertion t hat the EPA has now proposed to permanently consider those inputs to constitute CBI. Please see the EPA’s response to comment EPA

- HQ

- OAR

- 2010

- 0929

- 0069, Excerpt 4 in Section 9.2 of this document

.

9.7 EPA’s Harm Analysis Results

— Subpart V

Commenter Name: Wade Foster, Manager, Scientific Programs Commenter Affiliation: The Fertilizer Institute Document Control Number: EPA

- HQ

- OAR

- 2010

- 0929

- 0064 Comment Excerpt Number: 11

Comment: At the outset, we note confusion regarding the number of data elements in Subpart V identified as “inputs to emission equations.” EPA’s GHGRP Proposal identifies 21 such data elements. [ Footnote: 78 Fed. Reg. at 56,000] This number of data elements is confirmed by EPA in a rulemaking docket memorandum. [ Footnote: EPA Step 1 Memorandum at 48] However, in another EPA docket memorandum, the Agency identifies only 16 (not 21) data elements for this source category. [ Footnote: Memorandum from Lisa Grogan

- McCullough, EPA, to Docket EPA

- HQ

- OAR

- 2010

- 0929, entitled “Data Elements Deferred to March 31, 2015: List of Data Elements Proposed Not To Be Reported” at 19 and 32 (Aug. 2013). Page 19 identifies six Subpart V “inputs to emission equations” data elements proposed for retained confidentiality protection and page 32 identifies ten “inputs to emis sion equations” data elements proposed for public disclosure, for a total of 16 “inputs to emission equations” data elements for Subpart V.] The confusion appears to be regarding 40 C.F.R. § 98.226(c), reflecting the annual nitric acid production from eac h nitric acid train, which comprises five “inputs to emission equations” data elements. The current online version of 40 C.F.R. Part 98, Subpart A, Table A

- 7 identifies 40 C.F.R. § 98.226(c) as an “input to emission equations” currently protected from publ ic disclosure. [ Footnote: http://www.ecfr.gov/cgi

- bin/text

idx?c=ecfr&SID=27b141574f8eecd9a4b2ef548d7fc180&rgn=div5 &view=text&node=40:22.0.1.1.3&idno=4 0#40:22.0.1.1.3.1.1.10.17 ] However, the online Code of Federal Regulations for 40 C.F.R. § 98.226(c) shows it as “reserved.” [ Footnote: http://www.ecfr.gov/cgi

- bin/text

idx?c=ecfr&SID=27b141574f8eecd9a4b2ef548d7fc180&rgn=div5&view=text&node=40:22.0.1. 1.3&idno=40#40:22.0.1.1.3.22.1.7 ] This data element was present when EPA originally published the GHGRP in October 2009. [ Footnote: 74 Fed. Reg. 56,260, 56,446 (Oct. 30, 2009)] And, two revisions to Subpart V did not modify 40 C.F.R. § 98.226(c). [ Footnote: 75 Fed. Reg. 66,343, 66,468 (Oct. 28, 2010) and 75 Fed. Reg. 79,092, 79,157 (Dec. 17, 2010).] As such, TFI believes this is a valid data element and will, as such, address it in its comments. [ Footnote: This would result in eleven “inputs to emission equations” data elements proposed for retained CBI protection, not six as set forth in EPA’ s GHGRP Proposal (78 Fed. Reg. at 56,000).]Draft Deliberative

85 Response: The commenter is correct that 40 C.F.R. § 98.226(c) is a valid data element promulgated as part of the 2009 GHG Reporting Rule. As noted in the proposal preamble, 40 C.F.R. § 98.226(c) is not currently included in the Code of Federal Regulations because it was inadvertently omitted via a federal register publication error. The EPA nonetheless included the inputs to equations in this citation in the Step 2 Evaluation of Competitive Harm. As previously spe cified in the proposal preamble, the EPA determined that the equation inputs specified in this provision have disclosure concerns. As a result, in this final action, we are removing the inputs to equations that were originally promulgated in October 2009 ( 74 FR 56260 ) from being reporting requirements, and are instead requiring them to be entered into IVT rather than reported to the EPA.

Commenter Name: Wade Foster, Manager, Scientific Programs Commenter Affiliation: The Fertilizer Institute Document Cont rol Number: EPA

- HQ

- OAR

- 2010

- 0929

- 0064 Comment Excerpt Number: 12

Comment: TFI supports EPA’s conclusion that the data elements set forth at 40 C.F.R. §§ 98.266(c) (five data elements), 98.226(d) (one data element), 98.226(m)(1) (four data elements), and 98 .226(m)(3) (one data element) should be retained as confidential. As appropriately identified by EPA, these eleven data elements reflect production, raw material, or performance data that “would cause competitive harm” if disclosed. [ Footnote: EPA Step 2 M emorandum at 18] In addition, as EPA notes, none of these data elements are identified as being publicly available based on EPA’s review of several data sources. [ Footnote: EPA Step 1 Memorandum at 78.] Finally, TFI members routinely hold these data elemen ts as confidential. Response: Please see the EPA’s response to comment EPA

- HQ

- OAR

- 2010

- 0929

- 0069, Excerpt 4 in Section 9.2 of this document

.

Commenter Name: Wade Foster, Manager, Scientific Programs Commenter Affiliation: The Fertilizer Institute Document Control Number: EPA

- HQ

- OAR

- 2010

- 0929

- 0064 Comment Excerpt Number: 13

Comment: Regarding the remaining ten data elements proposed for release to the public [Refer to table on p.6 of comment letter: Refers to 3 inputs in 98.226(i), 3 inputs in 98.226(j); 1 input in each 98.226(m)(4)

- (6); and 1 input in 98.226(p).] 98.266, many TFI members hold these data elements as confidential because they identify efficiencies, utilization factors, and other train

specific information that could be used to determine fac ility operational conditions, despite some facilities releasing this information. They are the type of “process design, process performance and operation” data elements that EPA recognized “would reveal information that likely cause competitive harm, if re ported and publicly released.” [ Footnote: EPA Step 2 Memorandum at 18]Draft Deliberative

86 As examples, EPA identifies abatement destruction efficiency (40 C.F.R. § 98.226(i)), abatement utilization factor (40 C.F.R. § 98.226(j)), and fraction control technology (40 C.F.R. § 98.226(p)) as seven data elements (three each for abatement destruction efficiency and abatement utilization factor, and one for fraction control technology) proposed for public disclosure. The rationale for releasing the abatement destruction efficiency i s because two permits reviewed by EPA require the release of this information. [ Footnote: EPA Step 2 Memorandum at 18.] However, because two facility permits require the release of this information does not mean that all other facilities release this infor mation. In fact, the Agency does not identify any other sources where this data element is publicly available, and no publicly

- available sources for a train

- specific abatement utilization factor or fraction control technology. [ Footnote: EPA Step 2 Memoran dum at 18.] Many TFI members have employed secondary nitrous oxide abatement technology on existing nitric acid trains and, in doing so, the members have considered all available technical options and capital requirements for the site. Many new nitric acid plants are either under construction, or contemplated for construction. It is much easier to place nitrous oxide abatement technology on a new plant, when compared to an existing plant. Releasing these data elements, regardless of whether EPA holds the si te

- specific emissions factor as confidential (as proposed) would still reveal operational efficiencies and process design and performance parameters regarding an existing nitric acid train. As such, TFI believes that the abatement destruction efficiency,
a batement utilization factor, and fraction control technology data elements should be retained as confidential. Finally, EPA believes that releasing the nitrous oxide concentration per test run (40 C.F.R. § 98.226(m)(4)) and volumetric flow rate per test ru n (40 C.F.R. § 98.226(m)(5)) would not compromise business competitiveness. These data elements reveal train

- specific information regarding abatement efficiencies and flows that could, if released, compromise efforts to encourage voluntary nitrous oxide re ductions at existing facilities. In addition, EPA does not identify any publicly

- available sources of this information. [ Footnote: EPA Step 1 Memorandum at 78] As such, TFI believes that these data elements should remain non

- disclosable. In sum, TFI urges EPA to retain as confidential 20 of the 21 Subpart V data elements identified as “inputs to emission equations.” Response: See Section II.B.3 of the preamble to the final rule for the EPA’s response to this comment.

Commenter Name: Wade Foster, Manager, Scientific Programs Commenter Affiliation: The Fertilizer Institute Document Control Number: EPA

- HQ

- OAR

- 2010

- 0929

- 0064 Comment Excerpt Number: 14

Comment: TFI agrees with EPA that the number of test runs per nitric acid train data element (40 C.F.R. § 98. 226(m)(6)) could be released to the public since its members typically do not consider the element to be confidential and, as a result, disclosing it would not create CBI
concerns.Draft Deliberative

87 Response: The EPA thanks the commenter for their support. In the final rule , the EPA has decided to not collect information on the number of test runs per nitric acid train, because the information is not useful in the absence of the remaining inputs in the equation that will not be reported to the EPA

. The data element was origi nally collected in order to verify that the emissions were calculated correctly, and without the remaining inputs in the equation, this data element is no longer useful as a reporting element. See Section II.B.3 of the preamble to the final rule for additi onal discussion responding to this comment.

9.8 EPA’s Harm Analysis Results

— Subpart W

Commenter Name: Karen Ritter Commenter Affiliation: API Document Control Number: EPA

- HQ

- OAR

- 2010

- 0929

- 0074 Comment Excerpt Number: 12

Comment: EPA is not proposing any changes to the Subpart W data elements that were deferred from reporting till March 31, 2015. As a consequence, all of these data will have to be reported retroactively to the start of reporting under Subpart W in September 2012. API has commented previous ly that its major concern with data confidentiality under Subpart W is the disclosure of information for exploratory wells, especially when they are located in step

out areas where no prior reporting exists for a given sub

- basin.

Federal law and state code s allow companies to designate as confidential data obtained from exploratory wells, especially in new discovery areas, or areas that are being explored for development. The original intent of state oil and gas commissions to allow withholding of select dr illing and production information from early release to the public was to allow competitive exploration by searching for new pockets of oil or gas and experimenting with new tools and techniques. To clarify, API’s confidentiality concerns associated with i nformation on exploratory wells is related to the timing of releasing this information to the public. The information is most sensitive if it is made available too early during the exploration or initial development stages

. The situation of problematic early disclosure would occur acutely where an exploration well is the sole well in a sub

- basin category (including vertical or horizontal) and hence is not reported combined with other wells which might help shield any individual well’s contribution. API d oes not expect more than a handful of such wells in any given year. API requests that

– consistent with state and federal laws in oil producing states

– EPA categorically determine that all information (with the exception of well ID and location), that is associated with exploratory wells , is to be classified as CBI for a period of at least 24 months from the start of exploration. API would propose that during that time EPA could allow for one of two options:

1. Companies would report all data to EPA as mandat ed by Subpart W, but EPA will hold the reported data as CBI and not include it in its public data release for at least 24 months. ThisDraft Deliberative

88 can be accomplished by a flagging system (or a “radio button”) in e

- GGRT that could also allow for a short informative te xt on why that particular well information is to be maintained confidential; or
2. EPA would set up a deferral system where initial data on exploratory wells will be well ID and location information and the remaining data would be backfilled by companies afte r a period of 24 months. This approach is workable in practice because it will not require case

- by

- case review of companies’ information, and it is consistent with the approach taken by states’ oil and gas commissions and is protective of companies’ commer cial investment interests. Early release of data regarding operating characteristics of such wells, including post

- flowback flaring/venting volumes, could cause competitive harm if made publicly available too early. Industry makes substantial investments i n exploration and development projects in new areas; these are very costly and it takes a long time to characterize the magnitude and potential production characteristics of prospective resources. In some areas, companies may spend hundreds of millions of dollars per exploration project, in addition to the hundreds of millions of dollars invested to acquire leases. These costs consist of testing the prospective area via drilling, analyzing field and laboratory information and determining whether it is a via ble commercial play. Releasing data on such wells through the GHGRP

- despite the fact that they are held confidential by other regulatory bodies

- could cause substantial competitive harm and lead to a loss of investment value. Competitive advantage inclu des the ability to shield sensitive information on a company’s operations including oil and gas reserve information on new wells, internally developed assessments of geologic prospects, drilling plans and interim results. Competitive harm may occur if the public can obtain detailed high resolution operational information on a well

- by

- well basis and on a daily or weekly basis. The success of a well and of a particular play

- especially in exploratory areas

- could be inferred if detailed data is provided to the public too soon during the exploration and assessment period, and where according to state practices the data is not already publicly available. An example of such an occurrence might be an exploratory well completed in December of the reporting year, reported to EPA by end of March of the following year and then released by EPA to the public within a few months during the same year. Federal regulations recognize broadly in Title 43 of the CFR the need to regulate public availability of information for oil and gas related operations as provided in § 3162.8 [FOOTNOTE: 47 FR 47765, Oct. 27, 1982. Redesignated and amended at 48 FR 36583

- 36586, Aug. 12, 1983, further amended at 49 FR 37364, Sept. 21, 1984; 53 FR 17364, May 16, 1988]:
§ 3162.8 Confidentiali ty (a) Information obtained pursuant to this part and on file shall be open for public inspection and copying during regular office hours upon a written request, pursuant to rules at 43 CFR part 2, except that:

1. Upon request, information obtained from an op erating rights owner or operator under this part that constitutes trade secrets and commercial or financial information which isDraft Deliberative

89 privileged or confidential or other information that may be withheld under the Freedom of Information Act (5 U.S.C. 552(b)), su ch as geologic and geophysical data and maps, shall not be available for public inspection or made public or disclosed without the consent of the operating rights owner or operator, as appropriate, for a period of 12 months;
2. Upon expiration of the 12

- month period, the operating rights owner or operator, as appropriate, may request that the data be held confidential for an additional 12

- month period; and
3. Upon termination of a lease, whether by expiration of its terms or otherwise, such information shall be m ade available to the public. Furthermore, many state agencies recognize that information about the initial exploratory drilling phase is sensitive and have made special provisions for these situations. The examples provided below are intended to illustrate how state agencies are dealing with this situation:

1. Alaska State Code (AS 31.05.035) specifies procedures for “Confidential Reports”. Section (c) of the Alaska Code recognizes that: “... information required in (a) of this section that relate to an explor atory or stratigraphic test well and those portions of an application for a permit to drill an exploratory or stratigraphic test well that the commission determines contain proprietary engineering or geotechnical information shall be kept confidential for 24 months following the 30

- day filing period unless the owner of the well gives written permission to release the application and reports and information at an earlier date.“

2. Texas Administrative Code (title 16 part 1 chapter 3, Oil and Gas) states in sect ion (d) of rule 3.16: “(d) Delayed filing based on confidentiality. Each log filed with the commission shall be considered public information and shall be available to the public during normal business hours. If the operator of a well desires a log to be c onfidential, on or before the 90th day after the date a drilling operation is completed, the operator must submit a written request for a delayed filing of the log. When filing such a request, the operator must retain the log and may delay filing such log for one year beginning from the date the drilling operation was completed. The operator of such well may request an additional filing delay of two years, provided the written request is filed prior to the expiration date of the initial confidentiality peri od. If a well is drilled on land submerged in state water, the operator may request an additional filing delay of two years so that a possible total delay of five years may be obtained. ” Response: For subpart W, the EPA is finalizing the proposed decision to require subpart W facilities to report all inputs to emission equations for which reporting was deferred to 2015; however, in the final rule, the EPA is providing an option for reporters to delay reporting of s ix of these inputs to emission equations fo r 2 reporting years for specific situations related to two types of exploratory wells, delineation and wildcat wells (as defined in this final rule in 40 CFR 98.238). See Section s II.B.2 and II.B.3 of the preamble to the final rule for additional detail
re sponding to this comment.Draft Deliberative

90 Commenter Name: Various Commenter Affiliation: Natural Resources Defense Council/Environmental Defense Fund/Earthjustice/Clean Air Task Force/Sierra Club Document Control Number: EPA

- HQ

- OAR

- 2010

- 0929

- 0088 Comment Excerpt Number: 3

Comment: Section 114(c) of the Clean Air Act provides that EPA must disclose “emission data [FOOTNOTE: 42 U.S.C. § 1714(c).],” which agency regulations broadly define to include “[i]nformation necessary to determine the identity, amount, frequency, conce ntration, or other characteristics . . . of any emission which has been emitted,” or information necessary to determine the characteristics of any emissions which “under an applicable standard or limitation” a source may emit, or even “[a] general descript ion of the location and/or nature of the source [FOOTNOTE: 40 C.F.R. § 2.301(a)(2)(i).].” Beyond certain very limited categories, [FOOTNOTE: The regulations provide that this definition may be read narrowly only for data pertaining to research and developm ent processes. Id. § 2.301(a)(2)(ii).] “emission data” is to be interpreted comprehensively, to fulfill the public purposes of the Act and regulations. Further, for information that is not “emission data” the Act requires: [a]ny records, reports, or inform ation obtained under subsection (a) of this section shall be available to the public, except that upon a showing satisfactory to the Administrator by any person that records, reports, or information, or particular part thereof, (other than emission data) t o which the Administrator has access under this section if made public, would divulge methods or processes entitled to protection as trade secrets of such person, the Administrator shall consider such record, report, or information or particular portion th ereof confidential [FOOTNOTE: 42 U.S.C. § 1714(c)]. Subpart W inputs to emission equations data elements meet EPA’s regulatory definition of emission data, and therefore must be disclosed. EPA and the public must rely upon these data to determine emissions because reporters using equations are, by definition, not directly measuring emissions. The only emission data available to EPA are the inputs and verification data. As EPA explained, “once a facility selects a calculation method [using emissions equation s], then the equation becomes the only way for determining such emissions,” and so “these inputs to the equation are information ‘necessary to determine’ the calculated emissions [FOOTNOTE: 75 Fed. Reg. 39,094, 39,109 (July 7, 2010)].” EPA has acknowledged that inputs to emissions equations are emission data, and therefore it must disclose them to the public [FOOTNOTE: See, e.g., id. at 39,108 et seq]. In addition to the fact that Subpart W inputs data are “emissions data” and must be disclosed, the Act sep arately requires disclosure of these data because they are publicly available and not commercially sensitive [FOOTNOTE: See 42 U.S.C. § 7414; see also Envtl. Def. Fund et al., Comments Regarding Proposed Deferral of Greenhouse Gas Reporting and Call for In formation (Docket ID Nos. EPA

- HQ

- OAR

- 2010

- 0929 and EPA

- HQ

- 2010

- 0964) (Mar. 7, 2011), available at http://www.eenews.net/assets/2011/03/08/document_gw_01.pdf . In our comments we includ ed a report by Susan Harvey, an oil and gas expert, that contained dozens of examples where industry already publicly discloses information it had sought to protect as confidential business information. Id. at 24.]. Indeed, industry comments on the propose d deferral indicated most data elements were publicly available because “[s]tate oil and gas commissions publishDraft Deliberative

91 significant amounts of information on oil and gas production operations [Envtl. Prot. Agency, Public Comments and Responses for: Mandatory Gree nhouse Gas Reporting Rule: Deferral Notice 174 (Aug. 2011) (comments of Karin Ritter, American Petroleum Institute).].” The exclusion of such inputs from reporting and public disclosure would unnecessarily deny the public access to vital emission data and could hinder efforts to refine other data collection programs such as the Annual Inventory of Greenhouse Gas Emissions and Sinks. We support EPA’s proposed determination in this rulemaking to disclose Subpart W inputs because the data are publicly availabl e and not commercially sensitive. Using a careful four

- step process, the agency concluded that the Subpart W “inputs to equations” data elements are not confidential. In the proposed rule, EPA concluded that “for all of the industry segments within Subpart W, either the data are reported at a level of geographical aggregation that protects individual well information, or the markets in which the affected firms operate are structured in ways that disclosure of ‘inputs to equations’ data elements would not be likely to cause competitive harm [FOOTNOTE: Id. at 16.].” We agree that the rule as currently structured will not cause competitive harm, and this lack of competitive harm provides separate legal justification for disclosing the data. EPA has expressed th e critical importance of creating a transparent, public database of GHG emission data. In the final reporting rule, for instance, EPA explained that: using the rich data set provided by this rulemaking, EPA, States and the public will be able to track emis sion trends from industries and facilities within industries over time, particularly in response to policies and potential regulations. The data collected by this rule will also improve the U.S. government’s ability to formulate climate policies, and to
as sess which industries might be affected, and how these industries might be affected by potential policies. Finally, EPA’s experience with other reporting programs is that such programs raise awareness of emissions among reporters and other stakeholders, an d thus contribute to efforts to identify and implement emission reduction opportunities. These data can also be coupled with efforts at the local, State and Federal levels to assist corporations and facilities in determining their GHG footprints and identi fying opportunities to reduce emissions (e.g., through energy audits or other forms of assistance) [FOOTNOTE: 74 Fed. Reg. 56,260, 56,265 (Oct. 30, 2009).]. Indeed, in its proposal to disclose GHG emission data, EPA again strongly stated that “[p]ublic rel ease of the information collected under Part 98 that are emission data or non

‐ [confidential business information] is important because it ensures transparency and promotes public confidence in the data [FOOTNOTE: 75 Fed. Reg. at 39,099.].” EPA went on to e mphasize that such information was vital to “policy makers, the public, and industry” as they all work to understand and control emissions [FOOTNOTE: Id.]. The agency in short has, in line with its statutory mandates, made a strong commitment to public dis closure and public participation in developing and sharing reporting rule data. Moreover, EPA affirmed the importance of Subpart W data to deepening understanding of emissions in the oil and gas sector and achieving needed reductions:

The data submitted un der [Subpart W] will provide important information on the location and magnitude of GHG emissions from petroleum and natural gas systems and will allow petroleumDraft Deliberative

92 and natural gas facilities to track their own emissions, compare them to similar facilities an d aid in identifying cost effective opportunities to reduce emissions in the future . . . . [Through collection of Subpart W data] EPA will be in a better position to characterize (1) the extent of methane emissions from these sources that will remain afte r imposition of controls required by [the NSPS]; and (2) whether additional measures are available and appropriate for addressing such emissions [FOOTNOTE: 77 Fed. Reg. 49,490, 49,513

– 14 (Aug. 16, 2012)]. Finally, reporting Subpart W data will help to addr ess a recent report from EPA’s Office of Inspector General, which recommended that EPA “develop and implement a comprehensive strategy for improving air emission data for the oil and gas production sector .” [ Footnote: EPA Office of Inspector General, EPA N EEDS TO IMPROVE AIR EMISSIONS DATA FOR THE OIL AND NATURAL GAS PRODUCTION SECTOR

— REPORT 13

- P

- 0161 (Feb. 20, 2013); available at http://www.epa.gov/oig/reports/2013/20130220

- 13

- P

- 0161. pdf ] The report notes that EPA considers Subpart W as its main GHG emission data collection strategy from the oil and natural gas industries. Response : The EPA wants to clarify that it has not made confidentiality determinations for any inputs to emission equations either in this final rule or any other final action. Any such determination must be made in accordance with CAA Section 114 and the EPA’s implementing regulations in 40 CFR p art 2, subpart B

. The agency’s four

- step evaluation (see Section I.C of t he preamble to the final rule) does not involve such analysis. Further, in response to comment, the EPA is amending subpart W as proposed except that the EPA is providing an option fo r reporters to delay reporting of s ix of these inputs to emission equations for 2 reporting years for specific situations related to two types of exploratory wells, delineation and wildcat wells (as defined in this final rule in 40 CFR 98.238). See Section II.B.3 of the preamble to the final rule for additional detail regarding this change since proposal

. 9.9 EPA’s Harm Analysis Results

— Subpart Y

Commenter Name: Karen Ritter Commenter Affiliation: API Document Control Number: EPA

- HQ

- OAR

- 2010

- 0929

- 0074 Comment E xcerpt Number: 11

Comment: API concurs with the decision about the listed data elements that are not to be publicly reported and which will undergo an alternative verification procedure. In particular, API supports EPA’s proposal to retain confidentiality for the listed data elements which are used for GHG emissions calculations as inputs to emission equations, including: t he 75 (out of the original list of 80) data elements under Subpart Y. Response: Please see the EPA’s response to comment EPA

- HQ

- OAR

- 2010

- 0929

- 0069, Excerpt 4.

9.10 EPA’s Harm Analysis Results

— Subpart Z

Commenter Name: Wade Foster, Manager, Scientific Programs Commenter Affiliation: The Fertilizer InstituteDraft Deliberative

93 Document Control Number: EPA

- HQ

- OAR

- 2010

- 0929

- 0064 Comment Excerpt Number : 10

Comment: For the phosphoric acid production source category, EPA proposes to make confidentiality determinations for four data elements. For convenience, we set forth EPA’s proposal relating to the four “inputs to emission equations” data elements in Subpart Z. [Refer to table in p. 9 of comment letter, which lists four data elements in 98.266(f)(5)

- (6).] TFI agrees that these data elements should all be maintained as confidential. The source category is predominately “concentrated”/”moderately conce ntrated” based on FTC guidelines, meaning that there are competitive concerns with the release of these data elements. Also, as noted by EPA, none of the data elements were identified as being publicly available based on the Agency’s record review, [ Footno te: EPA Step 1 Memorandum at 83] the data elements reflect production or raw material data that EPA has correctly concluded “would likely cause competitive harm” if disclosed, [ Footnote: EPA Step 2 Memorandum at 18, 111] and TFI members routinely hold thes e data elements as confidential. Response: Please see the EPA’s response to comment EPA

- HQ

- OAR

- 2010

- 0929

- 0069, Excerpt 4 in Section 9.2 of this document

. 9.11 EPA’s Harm Analysis Results

— Subpart EE

Commenter Name: Robert A. Reich Commenter Affiliation: DuPont Document Control Number: EPA

- HQ

- OAR

- 2010

- 0929

- 0071 Comment Excerpt Number: 1

Comment: DuPont has submitted numerous comments on the issue of confidential business information (CBI) during the course of the development and implementation of the Greenhouse G as Reporting Program (GHGRP). It is of primary concern to DuPont that CBI be protected and not disclosed to the public. EPA proposed (see 75 FR 39094, July 7, 2010) to publicly report inputs to emission equations data, but as we have noted in our comments dated September 6, 2010, much of that information is sensitive and not publicly reported elsewhere. DuPont submitted related comments on the issue of CBI in response to various subsequent EPA notices. These comments were submitted on March 7, 2011 and June 20, 2012. As a member of the American Chemistry Council, DuPont provided input to CBI

- related comments submitted by ACC on March 12, 2012. In addition DuPont representatives have met with EPA representatives several times on the subject of CBI.

DuPont was pleased that EPA recognized that additional time was needed to resolve many of the CBI issues and deferred a number of inputs to emissions equations until 2015. DuPont is encouraged that EPA has recognized of our CBI concerns in the current proposal. We a ppreciate EPA’s effort to balance its desire to provide information to the public with the need to protect sensitive business information. CBI issues for inputs to emissions equations are of greatest concern to DuPont under Subparts L (Fluorinated Gas Prod uction) and EE (Titanium Dioxide Production). We note that by removing the reporting requirements proposed by EPA to be removed under Subpart EE, but verifiedDraft Deliberative

94 through the use of the Inputs Verification Tool, the Agency will have alleviated our concerns wit h regard to CBI under Subpart EE. Response: The EPA thanks the commenter for their support. Please see the EPA’s response to comment EPA

- HQ

- OAR

- 2010

- 0929

- 0069, Excerpt 4 in Section 9.2 of this document

.


### 10.0 Reporting and Use of IVT for 2010

– 2013 Data Elements in Table A

- 7

10.1 IVT Not Required for 2010

– 2013 Inputs

Commenter Name: Russell A. Wozniak Commenter Affiliation: Dow Document Control Number: EPA

- HQ

- OAR

- 2010

- 0929

- 0068 Comment Excerpt Number: 2

Comment: Dow supports EPA’s proposal on FR Page 56004 to not requ ire retroactive submittal of input values into the Inputs Verification Tool for the Reporting Years 2010

– 2013. Dow agrees that any potential added benefit does overweigh the additional data entry burden that would be required for regulated facilities to use the Inputs Verification Tool for years prior to 2014. The Greenhouse Gas reporting rule is a system that continues to change and evolve, and instead of burdening reporters with the data entry for previous years, EPA is rightly focused on ensuring quali ty GHG emissions data for RY 2014 and future years Response: The EPA thanks the commenter for their support.

Commenter Name: Karen Ritter Commenter Affiliation: API Document Control Number: EPA

- HQ

- OAR

- 2010

- 0929

- 0074 Comment Excerpt Number: 18

Comment: API concurs with EPA’s proposal to not require retroactive submittal of inputs data that would be entered into the new inputs validation tool for reporting years 2010

- 2013, and instead focus on prospective reporting. As evidenced by follow

- up questions receiv ed by API members from EPA on prior year reports, EPA has been conducting verification of prior reports. Therefore the burden that would be required for reporters to use the inputs verification tool for years prior to reporting year 2014 is not warranted. Response: The EPA thanks the commenter for their support.Draft Deliberative

95 Commenter Name: Lorraine Krupa Gershman Commenter Affiliation: American Chemistry Council 29 Document Control Number: EPA

- HQ

- OAR

- 2010

- 0929

- 0085 Comment Excerpt Number: 7

Comment: ACC supports EPA’s proposal not to require retroactive submittal of inputs data for the years 2010

- 2013, and instead focus on prospective reporting. The GHGRP is an evergreen system, changing, expanding and improving as it evolves. EPA is rightly focused on ensuring quality GHG emissions data in the future. Response: The EPA thanks the commenter for their support.

10.2 Reporting of Inputs from 2010 to 2013

Commenter Name: Various Commenter Affiliation: Natural Resources Defense Council/Environmental Defense Fund/Earthjustice/Clean Air Task Force/Sierra Club Document Control Number: EPA

- HQ

- OAR

- 2010

- 0929

- 0088 Comment Excerpt Number: 2

Comment: Because EPA did not identify disclosure concerns for Subpart W “inputs to equations,” the current deferral of reporting for such inputs will e xpire on March 2015. EPA proposes to collect and report this data as part of the annual report for reporting year 2014, which if EPA follows past practice would be released in October 2015. Given EPA’s carefully

considered determination that Subpart W inpu ts are publicly available and not commercially sensitive, and that these inputs are already being collected by industry for eventual reporting, we respectfully urge EPA to begin collecting and reporting these data prior to reporting year 2014. We respectfu lly recommend that the agency set an interim deadline, such as August 2014, for the first reports of Subpart W inputs to be submitted. This would allow the data to be released to the public with the 2013 reporting year data in the fall of 2014, likely a fu ll year before the current schedule in the proposed rule. Having this data quickly is imperative as policymakers and companies are evaluating mitigation opportunities. In the proposed rule, EPA claims that the deferred reporting deadline will “ease the bur den for facilities” by delaying the reporting deadline for Subpart W inputs to emission equations data [FOOTNOTE: 78 Fed. Reg. at 56,000]. However, facilities already possess the relevant data elements and are required to have organized the relevant data e lements into a form that is suitable for expeditious inspection and review [FOOTNOTE: See 76 Fed. Reg. 53,057, 53,061 (Aug. 25, 2011) (citing 40 C.F.R. § 98.3(g)).], and promptly reporting them will promote transparency. EPA also states that “[t]his propos ed approach would prevent facilities from being required to revise, re

- certify, and re

- submit annual reports from each previous reporting year [FOOTNOTE: Id.] .” To avoid this issue, EPA could instead request that the data be reported as a supplement to the annual report for reporting year 2013.

29 This comment was also supported by Dow (Docket I D No. EPA

- HQ

- OAR

- 2010

- 0929

- 0068).Draft Deliberative

96 Congress mandated the establishment of the GHG reporting program to ensure the public benefits from greater transparency and accountability in the scope and dimensions of GHG emissions. State regulators, industry sta keholders, policymakers, and the public need the withheld data as soon as possible to deepen understanding of the emissions profile of the petroleum and natural gas sector and to assist in developing timely and effective technical and policy solutions. For instance, the inputs for which reporting is currently deferred include vital information on the number of emitting facilities and components deployed in the field. Without these inputs, it is difficult to assess whether differences in emissions reported b y different facilities are attributable to inherent characteristics such as activity levels or component counts, or whether more site

- specific factors are driving emissions. Release of Subpart W inputs will also help both EPA and the public verify the accu racy of emissions reports and build additional confidence in the reliability of the reporting system. Accurate and timely information on the sources of emissions from this sector will assist greatly in identifying and advocating for solutions

— as Congress r ecognized when it directed EPA to develop the reporting system. Response: The EPA wants to clarify that the Agency’s statement cited in the above comment about “easing the burden” on reporters was not related to “delaying the reporting deadline,” as stated by the commenter. As explained in Section s II.B and III.A.3 of the preamble to the proposed rule, the EPA is “easing the burden” on reporters by not requiring reporters to revise, recertify, and resubmit annual reports for reporting years 2010 through 2013. Facilities will instead be required to report these 2010 through 2013 data in the 2014 annual report. The EPA is not amending the reporting deadline for the se data elements; deferral of these data elements expires on March 31, 2015 , as specified in 40 CFR 98.3(c)(4)(vii)

. Though the EPA recognizes the benefits of these data being reported by an earlier deadline, as the commenter indicates, the EPA does not be lieve that it is appropriate to include in this final rule an earlier interim deadline for subpart W data for the following reasons. The EPA did not propose to change the existing deadline for reporting the deferred inputs. Reporters therefore have no notice or an opportunity to comment on such change. Further more, considering that the existing deadline of March 31, 2015 , is approximately 6 months from now, the EPA does not see much to be gained to get the information any sooner

. The commenter sugge sted setting the interim deadline in August 2014, which is obviously infeasible because it is prior to this rule taking effect. For the reasons stated above , the EPA declines the commenter’s suggestion to include in this final rule an interim reporting dea dline for subpart W inputs. The EPA is finalizing as proposed the requirement that these data be reported as part of the annual report for reporting year 2014.

Commenter Name: Karen Ritter Commenter Affiliation: API Document Control Number: EPA

- HQ

- OAR

- 201 0

- 0929

- 0074 Comment Excerpt Number: 7

Comment: API notes that part of the additional time requirement for companies is the need to back

- fill data elements for which the deferral is expiring on March 31 st 2015. In anticipation of this massive data input tha t would be required for Subpart W, for example, it is critical for EPADraft Deliberative

97 to consider phasing

- in the opening of eGGRT, as early as September 1, 2014, to first allow back filling of deferred data elements from prior years, per the final rule once promulgated. This period should then be immediately followed

- by December 1, 2014

- with launching of the new data verification tool to entry of appropriate data and initiation of the reporting cycle of 2014 data. Response: For reporting the subpart W inputs for repor ting years 2011

– 2014, the EPA plans to use a spreadsheet format that will be uploaded to e

- GGRT. Recognizing the substantial amount of information that facilities will be entering into the spreadsheet, the EPA anticipates publishing the spreadsheet in Octo ber 2014. This will allow facilities to begin data entry into the spreadsheet prior to the open reporting period. The spreadsheet can then be uploaded to e

- GGRT during the open reporting season

. Please see Section II.A.3 of the preamble for further discussion on this topic. Regarding the commenter’s suggestion that the EPA launch IVT by December 1, 2014 , the EPA will offer stakeholders an opportunity prior to the open reporting period (which is typically in mid

- February) to view and provide feedba ck on the IVT modules for all 23 subparts, using a sandbox testing environment similar to that used previously for e

- GGRT testing. The EPA intends to offer sandbox testing from October through December 2014, providing testing by subpart on a rolling basis. R e porters will be provided an opportunity to view and test IVT for their applicable subparts prior to the beginning of reporting for reporting year 2014. The sandbox testing period will provide reporters sufficient lead time to familiarize themselves with IV T and sync their systems with IVT prior to the open reporting period for reporting year 2014. See Section II.A.3 of the preamble to the final rule for further discussion in response to this comment and the EPA’s plans for sandbox testing of IVT.

Commenter Name: G. Woods Commenter Affiliation: Littlejohn Engineering Associates Document Control Number: EPA

- HQ

- OAR

- 2010

- 0929

- 0058 Comment Excerpt Number: 1

Comment: If ‘ inputs to equations ’ is not to be saved by the Inputs Verification Tool , what is the purpose of having reporters input previous years data? Response: The EPA believes that the commenter may have misunderstood the proposed rule. Under the proposal, inputs to equations for which the EPA has identified disclosure concerns with would not be reported t o the EPA for previous years, and we are finalizing these provisions as proposed. The use of IVT will start with reporting year 2014. Inputs to equations for which disclosure concerns were not identified will be required to be reported to the EPA fo r 2010, 2011, 2012, 2013, 2014, and beyond. These data will be used to verify emissions and inform GHG policy.Draft Deliberative

98 Commenter Name: G. Woods Commenter Affiliation: Littlejohn Engineering Associates Document Control Number: EPA

- HQ

- OAR

- 2010

- 0929

- 0058 Comment Excerpt Number: 2

Comment: Would verification of ‘ inputs to equations’ for previous years necessarily mean previous years GHG emissions were correct or incorrect? Response: The EPA deferred the reporting date for many inputs to emission equations until March 31, 2 015

. Accordingly, these data for reporting years 2010 through 2013 (excluding those that are no longer required to be reported under this final rule) must be reported by March 31, 2015

. Although the EPA has performed some verifications during the deferral period, t he EPA will use these previous years’ data to perform additional verification as needed and to inform future GHG policy. Should the EPA identify potential substantive errors 30 in a previous annual report, the EPA will follow the process outline in 40 CFR 98.3(h), which provides a facility with 45 days to either resubmit the corrected report or to demonstrate that the potential error is not in fact a substantive error.

Commenter Name: G. Woods Commenter Affiliation: Littlejohn Engineering Associat es Document Control Number: EPA

- HQ

- OAR

- 2010

- 0929

- 0058 Comment Excerpt Number: 3

Comment: Isn’t submitting previous years ‘ inputs to equations ’ equivalent to requiring reporters to submit reports for previous years? Response: The EPA deferred the reporting date for many inputs to emission equations until March 31, 2015

. Accordingly, these data for reporting years 2010 through 2013 (excluding those that are no longer required to be reported under this final rule) must be reported by March 31, 2015

. However, t he EPA is not requiring reporters to resubmit 2010 through 2013 annual reports. To avoid the burden on reporters that would result from recertification of these reports, the EPA is finalizing as proposed the provision that the reporter will not be required to resubmit previous reports for 2010 through 2013, but will be required to enter all relevant data (data for which reporting was deferred to 2015 and for which the EPA is not amending the reporting requirements) for previous years in the annual report fo r reporting year 2014. The EPA anticipates that this approach will result in minimal burden for reporters. See Sections III.A.3 of the proposal preamble for a discussion of this proposed decision, including how this approach minimizes burden on reporters.

30 40 CFR 98.3(h)(3) defines subs tantive error as an error that impacts the quantity of GHG emissions reported or otherwise prevents the reported data from being validated or verified. 40 CFR 98.3(h) states that once a substantive error is identifie d, an owner or operator shall, within 45 days of receipt of the notification, either resubmit the report that, for each identified substantive error, corrects the identified substantive error (in accordance with the applicable requirements of this part) or provide information demonstrating that the previously submitted report does not contain the identified substantive error or that the identified error is not a substantive error.Draft Deliberative

99 

### 11.0 Recordkeeping Requirements for IVT Users

11.1 Recordkeeping Format

Commenter Name: Jeff Applekamp Commenter Affiliation: Gas Processors Association Document Control Number: EPA

- HQ

- OAR

- 2010

- 0929

- 0070 Comment Excerpt Number: 1

Comment: EPA is adding a requirement that reporters using “inputs to equations” data elements must use an EPA

- provided electronic inputs verification tool. EPA is proposing that the “inputs to equations” data elements that would not be reported must be kept as records. These records must be in the format generated by the inputs verification tool (i.e., a file for downloading or printing). As such, the EPA determined that the data that must be kept as records would be sufficiently clear, as they would be in the resulting verification tool file . However, the EPA seeks comment on whether additional specificity within the recordkeeping requirements of each subpart would improve the clarity of the specific records that are required to be retained. We strongly suggest that the recordkeeping section of each subpart be modified to clearly specify which records are to be maintained. e

- GGRT is just a reporting tool; it is not a regulation. It is not appropriate for the reporting tool (which can change without notice

- and

- comment) to dictate which records are to be maintained. Such changes can only be specified in the rule, and the e

GGRT tool can only reflect the rule requirements. Response: T he EPA agrees with the recommendation to specify in P art 98 each record that reporters must maintain, as this change improves the clarity of the specific records that are required to be retained

. For a description of how the EPA has implemented this change in P art 98, see Section II.C.2 of the preamble to the final rule.

Commenter Name: David Friedman Commenter Affiliation: American Fuel and Petrochemical Manufacturers Document Control Number: EPA

- HQ

- OAR

- 2010

- 0929

- 0080 Comment Excerpt Number: 3

Comment: The proposed rule would re quire facilities relying on the verification tool to maintain
on

- site single copy of the verification tool output that lists all “inputs to emissions equations” data elements. This requirement would substantially reduce the flexibility provided by existing regulations, which provide facilities with a range of recordkeeping options. In the absence of any evidence that the existing recordkeeping requirements are inadequate, we urge EPA to maintain the existing requirements for facilities required to use the v erification tool. Response: The EPA is finalizing the proposed record format requirements that facilities subject to IVT maintain a record of data entered into IVT in the format provided by IVT. Specifically, a t the time the facility completes entry of dat a into IVT, the facility is required to download from IVT a file that lists the entered IVT inputs and maintain a copy of the file as a record of theDraft Deliberative

100 entered inputs. The EPA is finalizing this proposed format because the format ensures that, should an on

- s ite visit be necessary, EPA inspectors can readily access these data during site visits, enabling the EPA to quickly and efficiently perform calculations and data checks during site visits. The commenter does not dispute the EPA’s need for such format but raised the issue of limited flexibility in its ability to keep records. The EPA disagrees with the comment that this requirement “substantially” reduces the fl exibility for the current rule, as the only change in format is that the data entered into IVT m ust be kept in the format provided by IVT. This format change does not change any other recordkeeping format provisions under Part 98. As currently required in 40 CFR 98.3(g), subpart A, this file generated by IVT may be maintained in electronic or hard co py format. Additionally, the file may be retained off

- site if the file is readily available for expeditious inspection and review (e.g., archived or stored at a remote location), as is currently allowed under Part 98.

Commenter Name: Karen Ritter Comment er Affiliation: API Document Control Number: EPA

- HQ

- OAR

- 2010

- 0929

- 0074 Comment Excerpt Number: 4

Comment: EPA states in the preamble to the proposed rule that because there may be more direct follow

- up activities when using EPA’s proposed Verification Tool as an alternative verification approach for CBI data elements, the record retention period should be extended from three to five years. EPA claims that the Verification Tool will be used by over 2,000 facilities, for which they would like to have extended access to relevant records for potential follow

- up, including on

- site audits if necessary. EPA also proposes that this five year record retention requirement begin with records for reporting year 2010. API contends that extending the recordkeeping require ment from three to five years for data elements entered into the Verification Tool is not warranted and is unduly burdensome. Extending the recordkeeping requirement imposes an unnecessary extra burden on reporting facilities, and EPA provides no justifica tion for the extended retention period. The proposed record format revision would require reporters to maintain an electronic or hard copy of the single file generated by the proposed inputs verification tool, listing all “inputs to equations” data element s entered into the tool. All other records required under Part 98 would be maintained in the format currently required under Part 98. API notes that the existing reporting rule provides reporters with flexibility due to the variety of formats acceptable fo r recordkeeping. In the proposed rule, however, EPA would remove some of this flexibility, while also increasing substantially the volume of records required. This volume of data is not amenable to storage at remote field locations, such that the records c ould be immediately accessible for potential on

- site inspections.Draft Deliberative

101 As discussed above, to maintain accurate records and back

- up documentation for demonstrating compliance, companies will have to rely on data centers and centralized archiving procedures in support of such remote locations as offshore production platforms, compressor stations, fuel supply terminals, to name just a few. Response: Regarding the comment that the proposed format change reduces “some” of the flexibility provided in Part 98 for ke eping records, the only change in format is that the data entered into IVT must be kept in the format provided by IVT. This format change does not change any other recordkeeping format provisions under Part 98. T he commenter has not stated or demonstrated that this change is sig nificant or causes undue burden and we do not see a reason to allow additional formats. Facilities subject to IVT are required to maintain a record of data entered into IVT in the format provided by IVT. At the time the facility com pletes entry of data into IVT, the facility is required to download from IVT a file that lists the entered IVT inputs and maintain a copy of the file as a record of the entered inputs. The EPA is finalizing this proposed format because the EPA has determin ed that this format change does not cause undue burden to reporters and because the format ensures that, should an on

- site visit be necessary, EPA inspectors can readily access these data during site visits, enabling the EPA to quickly and efficiently perf

orm calculations and data checks during site visits. As mentioned above, t his format change does not change any other recordkeeping format provisions under Part 98. As currently required in 40 CFR 98.3(g), subpart A, this file generated by IVT may be maint ained in electronic or hard copy format. Additionally, the file may be retained off

- site if the file is readily available for expeditious inspection and review (e.g., archived or stored at a remote location), as is currently allowed under Part 98. Regardin g the comment that the proposed revisions to recordkeeping are “increasing substantially the volume of records required” , we believe this comment is referring to the proposed requirement to maintain all records for 5 years (and not the format for keeping r ecord of values entered into IVT) . As explained in the preamble to the proposed rule, the EPA determined that 5 years is a reasonable time frame given the large number of reporters affected by this proposed revision (over 2,000 facilities) and the likely i ncrease in follow

- up activities. It is important that relevant records are available to the EPA for follow

- up activities with facilities, including on

- site audits (if necessary) and to address potential errors, discrepancies, or questions. When an EPA empl oyee visits a facility, it is important that the employee be able to examine not only the current year’s records but those from previous years as well, because previous years’ data will provide year

- to

- year comparisons, which are useful for verifying the c urrent year’s data. Further, extending the 5

- year record retention requirement to all subparts for IVT users is necessary for inspectors to address questions regarding the accuracy of equation inputs entered into IVT as they relate to other recordkeeping i nformation not entered into IVT, such as a monitoring plan or recordkeeping information in a different subpart. Refer to Section II.C.3 of the preamble to the final rule for further discussion of why this proposed recordkeeping requirement is justified und er the alternative verification approach being finalized. Regarding the comment that this volume of data would require use of centralized archiving procedures that would result in records not being readily available for on

- site inspections , the EPA does n ot see any reason why the recordkeeping amendments in this action will necessitate a change in where records are kept (i.e., whether a reporter stores data on

- site or in central data archives). The format change in this final action does not change any oth er recordkeeping formatDraft Deliberative

102 provisions under Part 98. As currently required in 40 CFR 98.3(g), subpart A, this file generated by IVT may be maintained in electronic or hard copy format. Additionally, the file may be retained off site if the file is readily ava ilable for expeditious inspection and review (e.g., archived or stored at a remote location), as is currently allowed under Part 98.

11.2 Recordkeeping

— Duration for Subparts for Which IVT Is Required

Commenter Name: Glenn E. Davis Commenter Affiliation: HelperBroom LLC

— Mississippi Lime Document Control Number: EPA

- HQ

- OAR

- 2010

- 0929

- 0069 Comment Excerpt Number: 6

Comment: MLCO is supportive of USEPA's proposed extension of the records retention period from three years to five years, as outlined in the propo sed rule. Response: The EPA thanks the commenter for their support.

Commenter Name: Leslie Sue Ritts Commenter Affiliation: National Environmental Development Association ’ s Clean Air Project Document Control Number: EPA

- HQ

- OAR

- 2010

- 0929

- 0075 Comment Excer pt Number: 4

Comment: While NEDA/CAP believes that five years for data retention may be excessive, it is an acceptable trade

- off to ensure the validity of the data submitted should EPA have questions about prior MRR GHG submissions based on subsequent repo rting years. Response: The EPA thanks the commenter for their support.

Commenter Name: Mark Roberts and Avipsa Mahapatra Commenter Affiliation: Environmental Investigation Agency Document Control Number: EPA

- HQ

- OAR

- 2010

- 0929

- 0082 Comment Excerpt Number: 6

Comment: EIA supports EPA in extending the record retention period from 3 to 5 years, for the same reasons that EPA cites in the proposed rule document. Response: The EPA thanks the commenter for their support.Draft Deliberative

103 Commenter Name: Russell A. Wozniak Commente r Affiliation: Dow Document Control Number: EPA

- HQ

- OAR

- 2010

- 0929

- 0068 Comment Excerpt Number: 3

Comment: EPA notes in the preamble that the record retention time is proposed to be extended from three years to five years for all subparts for reporters that are required to use the Inputs Verification Tool. EPA notes that there may be more direct follow

- up activities under this alternative verification approach, thus EPA is proposing to extend the record retention period from three to five years. Dow notes tha t our experience has been that EPA has been reviewing data and information submitted under Subpart X and that EPA has asked a number of questions regarding Subpart X data submittals which Dow has been able to respond to in a timely manner. Since the Inputs Verification Tool will be capable of “checking” the data used as inputs to emissions equations almost on a real time basis, we fail to see why EPA would need more time to review past report submittals than the rule currently allows. Thus, we comment that the three year recordkeeping requirement should be sufficient and there is not a need to expand the recordkeeping requirements to five years for all subparts of 40 CFR 98. Response: The EPA needs a 5

- year record duration because the EPA anticipates that th ere may be situations where the verification summary will indicate discrepancies between reported GHG emissions and the equations results calculated by IVT as well as other verification results that will require further attention. Some of these verificatio n checks occur on a real

- time basis, as noted by the commenter, but others occur following annual report submission. In certain situations, the EPA will need additional time to follow up with these reporters to resolve discrepancies given the large number of reporters affected by this revision and the likely increase of the follow

- up activities as a result of today’s amendment

. See Section II.C.3 of the preamble to the final rule for further discussion responding to this comment, including the EPA’s need fo r a 5

- year record retention requirement and a description of the additional follow

- up verification activities that could necessitate additional follow

- up review of facility records.

Commenter Name: Wade Foster, Manager, Scientific Programs Commenter Affil iation: The Fertilizer Institute Document Control Number: EPA

- HQ

- OAR

- 2010

- 0929

- 0064 Comment Excerpt Number: 3

Comment: EPA proposes to extend the record retention period from three to five years for “inputs to emission equations” data elements that are pro posed for retained confidentiality. EPA’s rationale for doing so is to allow time to follow

- up with reporters if there are questions regarding their reports, and to allow EPA inspectors time “for appropriate assessment of compliance.” [ Footnote: 78 Fed. Re g. at 56,006] As to the first reason, while we understand the Agency’s need to verify the accuracy of information, including source category relied

- upon “inputs to emission equations,” it is our understanding that the verification tool would generate an im mediate flag of any input errors. As such, it does not make sense that an additional two years is needed to verify data generated using confidential “inputs to emission equations” dataDraft Deliberative

104 elements, when compared to data generated using CBI elements from other GHGRP data categories (or data generated using no CBI data). Response: Please see response to comment EPA

- HQ

- OAR

- 2010

- 0929

- 0068, Excerpt 3, and Section II.C.3 of the preamble to the final rule for the EPA’s response to this comment

.

Commenter Name: Niki Wuestenberg Commenter Affiliation: Republic Services Document Control Number: EPA

- HQ

- OAR

- 2010

- 0929

- 0077 Comment Excerpt Number: 4

Comment: EPA proposes extending the record retention period from three to five years for reporters required to use the IVT.

EP A’s concern that more time may be needed for direct follow

- up under the alternative verification approach for justification to the extension is not justified based on past experience with follow

- up review Republic has undergone with EPA under Subparts C an d HH. Republic has responded to a number of EPA questions in a timely manner within the year of the data submitted into e

- GGRT. Therefore, additional time is not warranted. Response: This revision to the recordkeeping timeframe is part of the new verificat ion approach using IVT that is being finalized today

. As explained in the proposal preamble, f or this new verification approach, the EPA has determined that records need to be maintained for 5 years , given the large number of reporters affected by this pro posed revision (over 2,000 facilities) and the likely increase in follow

- up activities

. It is important that relevant records are available to the EPA for follow

- up activities with facilities, including on

- site audits if necessary, regarding potential erro rs, discrepancies, or questions. The commenter did not object to the IVT approach nor did it identify or explain any deficiency in the EPA’s rationales for extending the recordkeeping period. See Section II.C.3 of the preamble to the final rule for further explanation of why the EPA needs a 5

- year record retention period for the alternative verification approach

.

Commenter Name: Lorraine Krupa Gershman Commenter Affiliation: American Chemistry Council 31 Document Control Number: EPA

- HQ

- OAR

- 2010

- 0929

- 0085 Comment Excerpt Number: 6

Comment: ACC questions EPA’s proposal to extend the recordkeeping requirements to five years from the current requirement of three years for those submitters who will need to utilize this new inputs verification tool. EPA has not demonstrated a need for reporters to keep the data

31 This comment was also supported by Dow (Docket I D No. EPA

- HQ

- OAR

- 2010

- 0929

- 0068).Draft Deliberative

105 for two additional years. EPA should demonstrate a need for facilities to spend the additional resources necessary to keep such records. Response: See the EPA’s response to comment EPA

- HQ

- OAR

- 2010

- 0929

- 007 7, Excerpt 4 , for the EPA’s response to this comment.

Commenter Name: Karen Ritter Commenter Affiliation: API Document Control Number: EPA

- HQ

- OAR

- 2010

- 0929

- 0074 Comment Excerpt Number: 8

Comment: API recommends that EPA retain the three

- year recordkeepin g requirement for documentation and record retention for all subparts per the existing rule. Doing so will lessen the recordkeeping burden and prevent confusion as to which requirements apply to a given Subpart at a specific facility. Response: Regarding t he comment that the proposed 5

- year record retention period would add more burden , please see Section II.C.3 of the preamble to the final rule for the response to this comment. Also, the commenter appears to suggest that a 5

- year record retention period wo uld cause confusion as to which requirements apply to a given subpart for a specific facility

. The EPA sees such confusion to be unlikely considering the record retention period applies to all of the records for a given facility. Further, i t is not unique for different facilities to have different regulatory requirements. The EPA notes that currently under Part 98, facilities have different monitoring and reporting requirements depending on the specific subpart, and that facilities have been able to keep tr ack of the different requirements to date. The EPA is confident in the ability of owners of multiple facilities to comply with applicable requirements for individual facilities

. In any event , if a parent company prefers to have the same record retention pe riod for all of its facilities, there is nothing in this rulemaking that prevents owners from maintaining all records for a period of 5 years.

Commenter Name: Kerry Kelly Commenter Affiliation: Waste Management Document Control Number: EPA

- HQ

- OAR

- 2010

- 0929

- 0090 Comment Excerpt Number: 3

Comment: WM strongly opposes EPA extending the record retention period from three years to five years for reporters required to use the verification tool. EPA’s stated reasons for extending the record ret ention period are in direct conflict with the Agency’s previous evaluation of this issue in its Response to Comments document and itsDraft Deliberative

106 promulgation of the GHG MRR. In 2009, the Agency described the following rationale for a three

- year record retention perio d:

“ Comment: Several commenters suggested that EPA require retention of records for three years rather than the five years specified in the proposed rule. Some of these commenters stated that three years is consistent with ARP, which is a comparable progra m that requires electronic reporting of similar, detailed data. Many contended that retaining the large amount of data required by this rule for five years rather than three years is overly burdensome and is not necessary. They indicated that three years o f records is sufficient to allow verification of annual GHG reports. ” Response: Please see Section II.C.3 of the preamble to the final rule for the EPA’s response to this comment.

Commenter Name: Niki Wuestenberg Commenter Affiliation: Republic Services Document Control Number: EPA

- HQ

- OAR

- 2010

- 0929

- 0077 Comment Excerpt Number: 6

Comment: Republic does not support extending the record retention. Republic urges EPA to examine why the 3

- year record retention was chosen when the rule was promulgated in 2009 as the proposed change is in conflict with EPA’s previous evaluation [74 FR56281, October 30, 2009]. EPA concluded that a 3

- year time period was justified as follows:

 Sufficient time for EPA audit and review

 Reduces the recordkeeping burden

 Consistent with recordkeeping provisions of the ARP and other Federal reporting programs Response: Regarding the comment that this 5

- year record duration requirement conflicts with the EPA’s rationale in the 2009 promulgated GHGRP rule ( 74 FR 56260 ) , please see Section I I.C.3 of the preamble to the final rule for the EPA’s response. Regarding the comment that this 5

- year record duration requirement is inconsistent with recordkeeping requirements in other federal programs , the other federal programs referred to by the com menter

— i.e., Department of Energy (DOE) and Acid Rain Program (ARP )

— are not using the alternative verification approach associated with today’s action. See Section II.C.3 of the preamble to the final rule for further discussion in response to this comment, including further explanation of why this 5

- year record duration requirement is not inconsistent with recordkeeping requirements in other federal programs.Draft Deliberative

107 Commenter Name: Sharon H. Kneiss and John Skinner Commenter Affiliation: National Waste/Recycling Association/Solid Waste Association of North America Document Control Number: EPA

- HQ

- OAR

- 2010

- 0929

- 0076 Comment Excerpt Number: 2

Comment: The National Waste & Recycling Association and SWANA oppose extending the record retention period from three years t o five years for reporters required to use the verification tool. Response: See Section II.C.3 of the preamble to the final rule for the EPA’s response to this comment.

Commenter Name: Wade Foster, Manager, Scientific Programs Commenter Affiliation: The F ertilizer Institute Document Control Number: EPA

- HQ

- OAR

- 2010

- 0929

- 0064 Comment Excerpt Number: 4

Comment: EPA proposes to extend the record retention period from three to five years for “inputs to emission equations” data elements that are proposed for ret ained confidentiality. EPA’s rationale for doing so is to allow time to follow

- up with reporters if there are questions regarding their reports, and to allow EPA inspectors time “for appropriate assessment of compliance.” Regarding EPA’s second rationale, while we appreciate the Agency’s need for compliance assurance, this should be accomplished by timely inspections. Response: The EPA stated in the proposal preamble that the EPA had considered whether the current record retention period and record format r equirements would be sufficient to allow the EPA to perform data verification under this alternative verification approach. As explained in the proposal preamble, the EPA determined that 5 years is needed given the large number of reporters affected by thi s proposed revision (over 2,000 facilities) and the likely increase in follow

- up activities. While the EPA strives to do any on

- site visits in a timely manner, i t is important that relevant records are available to the EPA for follow

- up activities with fac ilities, including on

- site audits if necessary, regarding potential errors, discrepancies, or questions. See Section II.C.3 of the preamble to the final rule for further description of why the EPA needs a 5

- year record retention period under the alternativ e verification approach.

Commenter Name: Wade Foster, Manager, Scientific Programs Commenter Affiliation: The Fertilizer Institute Document Control Number: EPA

- HQ

- OAR

- 2010

- 0929

- 0064 Comment Excerpt Number: 5

Comment: EPA proposes to extend the record retention period from three to five years for “inputs to emission equations” data elements that are proposed for retained confidentiality.Draft Deliberative

108 EPA’s rationale for doing so is to allow time to follow

- up with reporters if there are questions regarding their reports, and to allow EPA inspectors time “for appropriate assessment of compliance.” [ Footnote: 78 Fed. Reg. at 56,006] Also, requiring these source categories to retain information longer than other source categories without confidential data elements would lead to unjustified prejudices against these source categories. Regarding EPA’s second rationale, while we appreciate the Agency’s need for compliance assurance, this should be accomplished by a level playing field for all source categories. As currently drafted, sources in categories using CBI “inputs to emission equations” data elements would be unfairly subjected to potentially additional fines and penalties for noncompliance solely due to two extra years of required rec ord retention, when compared to other source categories, solely due to EPA’s regulations requiring the use of emission equations. Response: The EPA is amending P art 98 to provide an alternative verification approach due to concerns with potential disclosur e of certain inputs. The commenter did not provide any information or otherwise explain the claim that 2 additional years of record maintenance for facilities using IVT would trigger additional fines and penalties. While the EPA recognizes the importance o f a level playing field, different verification approaches may necessitate different reporting and recordkeeping requirements to ensure the success of the individual verification approach. See Section II.C.3 of the preamble to the final rule for the EPA’s response to the commenter’s claim that the 5

- year record retention time places more burden on certain source categories.

Commenter Name: Kerry Kelly Commenter Affiliation: Waste Management Document Control Number: EPA

- HQ

- OAR

- 2010

- 0929

- 0090 Comment Excerpt Number: 5

Comment: For landfill reporters, the Agency’s stated rationale does not warrant extending the record retention period for merely one deferred data element [Quantity of Fuel Combusted]. The Agency noted that “if questions arise about inputs to eq uations that it may be necessary to examine other non

- input recordkeeping information such as monitoring plan or recordkeeping information.” The monitoring plan is already a record that a facility must maintain for as long as the facility is required to re port. WM would prefer to exercise the option of either reporting the fuel quantity to EPA via XML upload or maintaining the information in accordance with each facility Monitoring Plan. Response: The EPA is adding to the final amendments an option for sour ces subject to subpart C (that do not meet the criteria for electric generators in 40 CFR 98.36(f)) to elect not to use IVT and, instead, report inputs to emission equations. If a subpart C source elects not to use IVT, and is not subject to any other subp arts required to use IVT, the source would not be subject to any requirements of today’s amendments. See Section II.A.3 of the preamble to the final rule for further discussion of this option.Draft Deliberative

109 Commenter Name: Sharon H. Kneiss and John Skinner Commenter Affiliation: National Waste/Recycling Association/Solid Waste Association of North America Document Control Number: EPA

- HQ

- OAR

- 2010

- 0929

- 0076 Comment Excerpt Number: 4

Comment: National Waste & Recycling Association and SWANA request that the EPA revise th is onerous requirement. For landfill reporters, extending the record retention period for a single deferred data element [“Quantity of Fuel Combusted”] is unwarranted, especially given that the deferred data element is, in effect, available to the EPA.

Res ponse: Please see response to comment EPA

- HQ

- OAR

- 2010

- 0929

- 0090, Excerpt 5.

Commenter Name: Niki Wuestenberg Commenter Affiliation: Republic Services Document Control Number: EPA

- HQ

- OAR

- 2010

- 0929

- 0077 Comment Excerpt Number: 5

Comment: Since the record re tention requirements only apply to facilities subject to the affected subparts (e.g., Subpart C), landfills required to report under the GHGRP but that do not have any Subpart C emissions (e.g., no stationary combustion subject to Subpart C), would then NO T be subject to the proposed revised record retention requirements, thus creating a variable record retention scenario on a site

- by

- site basis. Tracking which facilities are subject to, and not subject to this requirement will also create additional undue burden. Response: P lease see the EPA’s response to Comment EPA

- HQ

- OAR

- 2010

- 0929

- 0074, Excerpt 8. The EPA further notes that the EPA is adding to the final amendments an option for sources subject to subpart C (that do not meet the criteria for electric gen erators in 40 CFR 98.36(f)) to elect not to use IVT and, instead, report inputs to emission equations. If a subpart C source elects not to use IVT, and is not subject to any other subparts required to use IVT , the source would not be subject to any amendme nts in the final rule. See Section II.A.3 of the preamble to the final rule for further discussion of this option.

11.3 Recordkeeping

— Duration for Subparts for Which IVT Is Not Required

Commenter Name: Wade Foster, Manager, Scientific Programs Commenter Affiliation: The Fertilizer Institute Document Control Number: EPA

- HQ

- OAR

- 2010

- 0929

- 0064 Comment Excerpt Number: 6

Comment: TFI disagrees with EPA’s proposal to subject a facility with a source category with confidential “inputs to emission equations” and non

- confidential data elements to a five

- yearDraft Deliberative

110 record retention period for all applicable source categories at the site. Again, this would unfairly prejudice TFI members in Subparts G, V and Z, when compared to sources in other categories. Response: Please see the EPA’s response to comment EPA

- HQ

- OAR

- 2010

- 0929

- 0064, Excerpt 5 in Section 11.2 of this document

.

Commenter Name: Karen Ritter Commenter Affiliation: API Document Control Number: EPA

- HQ

- OAR

- 2010

- 0929

- 0074 Comment Excerpt Number: 20

Comment: Moreove r, the proposal breeds confusion by proposing to extend recordkeeping requirements for all other subparts that apply to reporters subject to just one of the Table 2 Subparts. As currently structured, this proposal will greatly expand the recordkeeping burd en for any facility that is subject to multiple subparts when one of them is listed in Table 2. In that case, the facility would be required to maintain all records under all applicable subparts for a period of five years. For example, if a facility such a s a natural gas processing plant is required to use the proposed inputs Verification Tool under Subpart C (as noted in Table 2), and is also reporting under Subpart W, and/or NN, the facility would be required to maintain all records required under all app licable subparts for five years. This requirement imposes a significantly greater burden than previously estimated on the reporting facilities because some of the data (such as that required by Subpart W) is typically retained in central data centers and n ot at specific field locations that do not have adequate archiving capabilities. Response: Please see the EPA’s response to comment EPA

- HQ

- OAR

- 2010

- 0929

- 0074, Excerpt 8 in Section 11.2 of this document , and Section II.C.3 of the preamble to the final rule.

Commenter Name: Sharon H. Kneiss and John Skinner Commenter Affiliation: National Waste/Recycling Association/Solid Waste Association of North America Document Control Number: EPA

- HQ

- OAR

- 2010

- 0929

- 0076 Comment Excerpt Number: 3

Comment: EPA proposes to require additional records maintenance for not only the subparts requiring the use of the verification tool, but for all subparts. This is an unjustifiable expansion of the scope of the recordkeeping requirements. This proposal will increase the cost and
a dministrative burden and could lead to confusion and noncompliance. Response: Regarding the comment that the proposed amendment extending the 5

- year record retention requirement to all subparts for IVT users is an “unjustifiable expansion of the scope of t he recordkeeping requirements ” , the EPA proposed this provision because ( a s previously indicated in the proposal preamble, September 11, 2013, 78 FR 55994) it determined that during
an on

- site visit, if questions arise regarding the accuracy of equation in puts entered into IVT, itDraft Deliberative

111 may be necessary to examine other recordkeeping information not entered into IVT, such as a monitoring plan or recordkeeping information in a different subpart, in order to fully investigate the accuracy of the data. See Section I I.C.3 of the preamble to the final rule for further explanation of the EPA’s rationale for finalizing this amendment. Regarding the comment that this proposed amendment will “increase the cost and administrative burden” , the commenter provided no details t o support this assertion or to contradict the EPA’s proposed impacts analysis, which concluded that this proposed requirement would impose no additional burden. See Section II.C.3 of the preamble to the final rule for further discussion of why the EPA has concluded that this proposed amendment will not expand the recordkeeping burden. Regarding the comment that this proposed amendment will “lead to confusion and noncompliance” , the EPA sees such confusion to be unlikely considering the record retention peri od applies to all of the records for a given facility. Further, it is not unique for different facilities to have different regulatory requirements. The EPA notes that currently under Part 98, facilities have different monitoring and reporting requirements depending on the specific subpart, and that facilities have been able to keep track of the different requirements to date. The EPA is confident in the ability of owners of multiple facilities to comply with applicable requirements for individual facilitie s. In any event, if a parent company prefers to have the same record retention period for all of its facilities, there is nothing in this rulemaking that prevents owners from maintaining all records for a period of 5 years.

Commenter Name: Niki Wuestenber g Commenter Affiliation: Republic Services Document Control Number: EPA

- HQ

- OAR

- 2010

- 0929

- 0077 Comment Excerpt Number: 7

Comment: Reporters would be required to maintain records for not only the subpart requiring IVT (only Subpart C for Republic facilities), but also for all subparts under the GHGRP. This is an unnecessary administrative burden for a reporting rule resulting in an increase in cost to manage such data. Response: Regarding the comment that the proposed amendment extending the 5

- year record retention requirement to all subparts for IVT users is “unnecessary” , a s previously indicated in the proposal preamble ( September 11, 2013, 78 FR 55994), the EPA proposed this provision because we determined that during a site visit, if questions a rise regarding the accuracy of equation inputs entered into IVT, it may be necessary to examine other recordkeeping information not entered into IVT, such as a monitoring plan or recordkeeping information in a different subpart, in order to fully investiga te the accuracy of the data. See Section II.C.3 of the preamble to the final rule for further explanation of the EPA’s rationale for finalizing this amendment. Regarding the comment that this proposed amendment will “result in an increase in cost to manage [records]” , the commenter provided no details to support this assertion or to contradictDraft Deliberative

112 the EPA’s proposed impacts analysis, which concluded that this proposed requirement would impose no additional burden. See Section II.C.3 of the preamble to the final rule for further discussion of why the EPA has concluded that this proposed amendment will not expand the recordkeeping burden.

Commenter Name: Kerry Kelly Commenter Affiliation: Waste Management Document Control Number: EPA

- HQ

- OAR

- 2010

- 0929

- 0090 Comment Excerpt Number: 4

Comment: EPA proposes to require reporters to maintain records for not only the subparts requiring the use of the verification tool, but for all records maintained for all applicable subparts under Part 98. This is an unjustifiable expan sion of the scope of the recordkeeping requirements. This proposal will increase the cost and administrative burden of an already onerous rule. Response: Please see response to comment EPA

- HQ

- OAR

- 2010

- 0929

- 0077, Excerpt 7, in this section of this document.

Commenter Name: David Friedman Commenter Affiliation: American Fuel and Petrochemical Manufacturers Document Control Number: EPA

- HQ

- OAR

- 2010

- 0929

- 0080 Comment Excerpt Number: 4

Comment: We urge EPA to avoid unnecessary confusion by maintaining the existing recordkeeping requirements for facilities that use the verification tool as an alternative verification approach. While we agree that the verification tool may be widely used, there is no basis to extend the recordkeeping requirement beyond three years. Applying a five

- year recordkeeping requirement to all subparts that apply to facilities that use the verification tool will create confusion as different facilities reporting under the same subpart may have different recordkeeping requirements. Main taining a uniform three

- year recordkeeping requirement to all facilities reporting under any subpart will avoid this confusion. In the absence of any evidence that the existing recordkeeping requirements are inadequate, we urge EPA to maintain the existing requirements for facilities required to use the verification tool. Response: Regarding the comment that the EPA has provided “no evidence that the existing recordkeeping requirements are inadequate” , please see Section II.C.3 for a detailed discussion
on the EPA’s need to have a 5

- year recordkeeping requirement for facilities using IVT. Regarding the comment that this proposed amendment will create confusion because a parent company must track the record retention schedule (i.e., 3 years versus 5 years) fo r each facility , please see the EPA’s response to comment EPA

- HQ

- OAR

- 2010

- 0929

- 0074, Excerpt 8 in Section 11.2 of this document

.Draft Deliberative

113 Commenter Name: Jeff Applekamp Commenter Affiliation: Gas Processors Association Document Control Number: EPA

- HQ

- OAR

- 2010

- 092 9

- 0070 Comment Excerpt Number: 5

Comment: For reporters that are subject to inputs verification (aka Subpart C), the record retention period increases from three years to five years for all subparts that apply to the reporter. It is unclear from the preamb le and text of the proposed rule whether the record retention timeframe (i.e., three years or five years) is based on the applicability of each facility to the verification software requirement or if it is based on whether the reporter is subject to the
ve rification software requirement. For example, a company may have a facility that is subject to Subpart C and therefore subject to the verification software requirement. For that facility, it is clear that records would need to be retained for five years. H owever, if that same company also submits a separate Subpart MM report (they are an importer of natural gas liquids), it is not clear what the record retention time is because the proposed language is based on the reporter not the facility . Thus, the follo wing language change is recommended: “98.3(g) Recordkeeping. An owner or operator that is required to report GHGs under this part must keep records as specified in this paragraph. Except as otherwise provided in this paragraph, retain all required records for at least 3 years from the date of submission of the annual GHG report for the reporting year in which the record was generated. The records shall be kept in an electronic or hard

- copy format (as appropriate) and recorded in a form that is suitable for expeditious inspection and review. If a reporter facility or supplier is required under § 98.5(b) to use software specified by the Administrator to enter data to calculate the reported GHGs, all records required under Part 98 must be retained by the reporter facility or supplier for 5 years from the date of submission of the annual GHG report for the reporting year in which the record was generated. Upon request by the Administrator, the records required under this section must be made available to EP A. Records may be retained off site if the records are readily available for expeditious inspection and review. For records that are electronically generated or maintained, the equipment or software necessary to read the records shall be made available, or , if requested by EPA, electronic records shall be converted to paper documents. You must retain the following records, in addition to those records prescribed in each applicable subpart of this part:” Response: T he EPA agrees with commenter that the propo sed rule needed additional clarification. We have revised 40 CFR 98.3(g) in the final rule to read, “....If the owner or operator of a facility is required under § 98.5(b) to use verification software specified by the Administrator, then all records required for the facility under P art 98 must be retained for 5 years from the date of submission of the annual GHG report for the reporting year in which the record was generated ...” This change clarifies that for each facility, the record retention timeframe is b ased on whether the facility is subject to the verification software requirement for any subpart.Draft Deliberative

114 Commenter Name: Jeff Applekamp Commenter Affiliation: Gas Processors Association Document Control Number: EPA

- HQ

- OAR

- 2010

- 0929

- 0070 Comment Excerpt Number: 6

Comment: For reporters that are subject to inputs verification (aka Subpart C), the record retention period increases from three years to five years for all subparts that apply to the reporter. Is it unclear how long records must be maintained for data as sociated with previously submitted reports. For example, for a natural gas processing plant that is subject to Subpart C and Subpart W, what is the exact date that reporting year 2011 records no longer need to be retained? Some data was submitted in Sept 2 012, while some data will be submitted in March 2015. In this case, it is unclear how the revised data retention requirement and the retroactive reporting requirements will work. As another example, for a natural gas compressor station that is subject to S ubpart C, reporting year 2010 Subpart C data was submitted in September 2011. Because no additional reports will be submitted for that subpart, is it correct that the five year record retention period ends September 2016? Response: The proposed revision to 40 CFR 98.3(g) specified the recordkeeping requirements for IVT users, including both record duration and the start date for this duration, as follows: “...all records... must be retained for 5 years from the date of submission of the annual GHG report for th e reporting year in which the record was generated.” The phrase “from the date of submission of the annual GHG report for the reporting year in which the record was generated” refers to the date of submission of the annual report for the reporting year ass ociated with the records. In the case of data reported for reporting year 2011 that will be reported as part of the reporting year 2014 annual report, this phrase refers to the date of submission of the reporting year 2011 annual report . Regarding the firs t example scenario provided by the commenter , the commenter is correct that the records associated with the annual report submitted in September 2012 for reporting year 2011 must be retained until September 2017. Likewise, records reported in March 2015 that are associated with reporting year 2011 mus t be retained until September 2017. Regarding the commenter’s example scenarios , both example scenarios included subpart C. Please note that in the final rule, the EPA provides an option for certain reporters to not use IVT for subpart C, but rather to re port these data. Refer to Section II.A.3 of the preamble to the final rule for a discussion of this new option and the EPA’s rationale for including the option in the final rule. If a reporter subject to both subparts C and W opts not to use IVT for subpar t C, and the reporter is not required to use IVT for any other subpart, then the reporter must retain records for 3 years from the submission date of the annual report. However, if the reporter elects to use IVT for subpart C or uses IVT for any other subp art, the reporter must retain records for all applicable subparts for 5 years.

R egarding the commenter’s second example of a natural gas compressor station that is subject to
s ubpart C , if the reporter elects to use IVT for subpart C reporting or is other wise required to use IVT, the commenter is correct that records generated for the reporting year 2010 annual report submitted for subpart C in September 2011 must be retained until September 2016.Draft Deliberative

115 

### 12.0 New Data Elements

Commenter Name: G. Woods Commenter Affili ation: Littlejohn Engineering Associates Document Control Number: EPA

- HQ

- OAR

- 2010

- 0929

- 0057 Comment Excerpt Number: 3

Comment: What is the need to make the reporting of GHG longer and more tedious with the input of additional data? Why have to input additi onal data just to end up at the same place? Response: If the commenter is ref erring to the requirement for 23 subparts to enter data into IVT, as stated in the preamble to this final action, the inputs to emission equations play an important role in the EP A’s ability to verify facility

- level emissions and ensure compliance with the program. The alternative verification approach, including the use of IVT, is being finalized to address disclosure concerns identified for certain inputs to emissions equations w hile maintaining the EPA’s ability to verify reported emissions

. Specifically, requiring that the inputs to emission equations (for which disclosure concerns were identified) be entered into IVT enables the EPA to calculate the emission equation results a s well as to conduct verification checks on the inputs to emission equations. These checks are designed to ensure that calculations are performed correctly by the reporter and that appropriate data were used to calculate emissions.

If the commenter is referring to the addition of approximately 20 reporting elements in this final rule, these new data elements are needed as part of this alternative verification approach that would no longer require reporting of certain inputs to emission equations . These new reported data will allow the EPA to perform verification checks and minimize the number of follow

- up activities, which will reduce burden on reporting facilities.

Commenter Name: Timothy N. Montgomery Commenter Affiliation: Ascend Performance Materia ls Document Control Number: EPA

- HQ

- OAR

- 2010

- 0929

- 0066 Comment Excerpt Number: 1

Comment: Ascend supports the proposed method of protecting Confidential Business Information (CBI) proposed by the Agency. However, we believe that the amount of KA used to
man ufacture adipic acid should be substituted for cyclohexane for the verification of N 2 O emissions from Adipic Acid manufacturing based on the following information. Subpart E Proposed Verification Criteria for Validation of N 2 O Emissions

We have used an EPA approved Alternate Method as allowed under 98.53(a)(2) to report N 2 O which would not require use of the proposed data element. In the event that an Alternate Method request was not approved by the Agency, the proposed data element would not fairly represe nt emissions from our manufacturing facility.Draft Deliberative

116 EPA proposed that the annual quantity of cyclohexane fed to all production lines be used as the data element for the Input Verification Tool in e

- GGRT for Subpart E (Adipic Acid Production). This proposed input assumes that adipic acid is manufactured wholly via the oxidation of cyclohexane to a cyclohexane/cyclohexanol (KA) mixture which is then further oxidized with nitric acid to adipic acid. This method assumes that all the KA used in the nitric acid oxidati on comes from cyclohexane oxidation and all the KA is used to produce adipic acid. In reality KA can be purchased or sold commercially as well as produced using other raw materials than cyclohexane. We operate an alternate process to produce KA in addition to the cyclohexane based KA production. Therefore we propose that the amount of KA used to manufacture adipic acid should be substituted for cyclohexane. Response: See Section II.D.3 of the preamble to the final rule for the response to this comment, incl uding the EPA’s amendment of the proposed provision in the final rule. In addition, the EPA wants to clarify that the Agency has not made confidentiality determinations for any of the inputs to emission equations removed from reporting, either in this fina l rule or in any other final action.

Commenter Name: Wade Foster, Manager, Scientific Programs Commenter Affiliation: The Fertilizer Institute Document Control Number: EPA

- HQ

- OAR

- 2010

- 0929

- 0064 Comment Excerpt Number: 8

Comment: EPA proposes to revise 40 C.F.R. § 98.76(b) to include two new data elements: (1) annual ammonia production (metric tons) (40 C.F.R. § 98.76(b)(14)); and (2) annual methanol production (metric tons), if this quantity is not reported under Subpart X (40 C.F.R. § 98.76(b)(15)). [ Foot

note: 78 Fed. Reg. at 56,018] TFI neither opposes the addition of these data elements to Subpart G nor EPA’s conclusion that these elements fall best within the “production/throughput data that are not inputs to emission equations” data category. Respons e: The EPA thanks the commenter for their support for the addition of these two new data elements.

Commenter Name: Wade Foster, Manager, Scientific Programs Commenter Affiliation: The Fertilizer Institute Document Control Number: EPA

- HQ

- OAR

- 2010

- 0929

- 0064 Comment Excerpt Number: 15

Comment: EPA proposes to revise 40 C.F.R. § 98.226(c) to include a new data element, annual percent nitrous oxide emissions reduction for all production units combined (40 C.F.R. §Draft Deliberative

117 98.226(q)) and assign it to the “unit/process o perating characteristics that are inputs to emission equations.” [ Footnote: 78 Fed. Reg. at 56,009, 56,021] TFI neither opposes the inclusion of this data element in Subpart V nor EPA’s conclusion that this data element bests falls within the “production/t hroughput data that are not inputs to emission equations” data category. Response: The EPA thanks the commenter for their support for the addition of this new data element.

Commenter Name: Paul Noe and Robert Glowinski Commenter Affiliation: American Fore st and Paper Association/American Wood Council Document Control Number: EPA

- HQ

- OAR

- 2010

- 0929

- 0083 Comment Excerpt Number: 3

Comment: AF&PA has reviewed the additional four data elements EPA is proposing to add to the reporting regime for pulp and paper mills under Subpart AA and EPA’s proposal regarding the CBI status of each of those elements. We understand EPA’s thinking behind the need for two of the data elements and do not object to their addition. However, the two other requirements in Subpart AA, section 98.276(m) are unclear and inconsistent with other reporting requirements:

 For each chemical recovery furnace and chemical recovery combustion unit for which you are not using Equation C

– 2c of subpart C to calculate CO2 emissions: Annual mass of ste am generated (lb steam), individually for each fossil fuel type and for spent liquor solids.

 For each chemical recovery furnace and chemical recovery combustion unit for which you are not using Equation C

– 2c of subpart C to calculate CO2 emissions: Ratio o f the unit’s maximum rated heat input capacity to its design rated steam output capacity (MMBtu/lb steam), individually for each fossil fuel type and for spent liquor solids. As we understand these latter two requirements, pulp mills that do NOT to use Equ ation C

- 2c would still be required to determine steam generation by fuel type and the unit’s heat/steam capacity ratio. These requirements are unclear and unnecessary for several reasons. First, this requirement for pulp mills is inconsistent with the new requirement for stationary fuel combustion units. Under section 98.36(e)(2)(ii)(D), EPA states that when Equation C

- 2c IS used, then the steam and heat/steam ratio must be submitted. We understand why EPA included inputs to the equation for stationary fuel combustion units using the equation, but we do not understand the need for this information for recovery furnaces that are NOT using the equation. Second, determining the steam generation by fuel type would be very difficult. While most recovery furnaces only use spent pulping liquor as their fuel, some may use other fuels for either start

- up or for flame stabilization. Generally these fuels are liquid. Other than using a percent of fuel to estimate the amount of steam generation per fuel type, we are hard

- pressed to figure out how else such a determination can be made.Draft Deliberative

118 AF&PA believes that the two new data elements in Subpart AA for facilities that do not use Equation C

- 2c are unclear, unnecessary, and burdensome, and requests that they be eliminated in the final rule. Response: See Section II.D.3 of the preamble to the final rule for the EPA’s response to this comment

. For the reasons stated in the preamble , the EPA did not include the two data elements at issue in the comment above in the final amendments of 40 CFR part 98, subpart AA.



### 13.0 Final Confidentiality Determinations for New Data Elements

Commenter Name: Wade Foster, Manager, Scientific Programs Commenter Affiliation: The Fertilizer Institute Document Control Number: EPA

- HQ

- OAR

- 2010

- 0929

- 0064 Comment Excerpt Number: 9

Comment: EPA proposes to revise the Subpart G GHGRP regulations to impose two new data elements, and assign the two proposed data elements to data categories and makes confidentiality determinations for the new data elements. EPA proposes to revise 40 C.F.R. § 98.76(b) to include two new data elements: (1) annual ammonia production (metric tons) (40 C.F.R. § 98.76(b)(14)); and (2) annual methanol production (metric tons), if this quantity is not reported under Subpart X (40 C.F.R. § 98.76( b)(15)). [ Footnote: 78 Fed. Reg. at 56,018] In turn, EPA proposes that these data elements fall within the “production/ throughput data that are not inputs to emission equations” data category. [ Footnote: 78 Fed. Reg. at 56,007] TFI neither opposes the add ition of these data elements to Subpart G nor EPA’s conclusion that these elements fall best within the “production/throughput data that are not inputs to emission equations” data category. Also, TFI agrees with EPA’s conclusion that both data elements sho uld be protected from public disclosure based on a prior EPA categorical determination for this data category. [ Footnote: 78 Fed. Reg. at 56,007] These data elements reflect annual production data that are sensitive information to a company and are held as CBI because their disclosure could cause competitive harm within the industry. Response: T he EPA notes that the commenter does not oppose either the addition of annual ammonia production and annual methanol production to s ubpart G or the EPA’s conclusion that these elements fall best within the “production/throughput data that are not inputs to emission equations” data category. Further, the EPA thanks the commenter for their support of a non

- CBI determination for both data elements.

Commenter Name: Andr ew T. O ’ Hare Commenter Affiliation: Portland Cement Association Document Control Number: EPA

- HQ

- OAR

- 2010

- 0929

- 0067 Comment Excerpt Number: 2

Comment: PCA has submitted comments to past proposals urging that federal regulators take a closer look at submitte d data before excluding them from CBI protections. To that end, cementDraft Deliberative

119 manufacturers support EPA’s proposal to classify the following data elements as CBI, as outlined in Section IV of the preamble: annual clinker production; annual average CO 2 emission fa ctor for a facility, averaged across all kilns; and annual average cement kiln dust (CKD) CO 2 emission factor for the facility, averaged across all kilns. Response: T he EPA thanks the commenter for their support of the EPA’s proposed CBI determinations for the annual clinker production; annual average CO 2 emission factor for a facility, averaged across all kilns; and annual average cement kiln dust (CKD) CO 2 emission factor for the facility, averaged across all kilns.

Commenter Name: Karen Ritter Commenter Affiliation: API Document Control Number: EPA

- HQ

- OAR

- 2010

- 0929

- 0074 Comment Excerpt Number: 1

Comment: API concurs with the CBI determination proposed by EPA for the new data elements for Subparts P and Y. EPA is proposing several additional data elements for reporting under the various Subparts of the GHGRP: For Subpart P, two new data elements are defined as CBI including 40 C.F.R. § 98.166(e) for annual methanol production (metric tons), if this quantity is not reported under Subpart X; and 40 C.F.R. § 98.166(b)(7) for name and annual quantity (metric tons) of each carbon

- containing fuel and feedstock. API agrees with the category assignments and CBI classifications of these new data elements. Response: The EPA thanks the commenter for their support of t he EPA’s proposed CBI determinations for the proposed new data elements for subparts P and Y

.

Commenter Name: William C. Herz Commenter Affiliation: National Lime Association 32 Document Control Number: EPA

- HQ

- OAR

- 2010

- 0929

- 0089 Comment Excerpt Number: 2

Co mment: The proposal adds a new data input item, lime production by type, which is also proposed to be considered CBI. NLA also supports this element of the proposal, because, like the

32 This comment was also supported by HelperBroom LLC

— Mississippi Lime (Docket I D No

. EPA

- HQ

- OAR

- 2010

- 0929

- 0069).Draft Deliberative

120 other inputs, lime production by type is highly sensitive business infor mation that could be of competitive value in the market for lime products. Response: The EPA thanks the commenter for their support of the EPA’s proposed CBI determinations for the proposed new data element lime production by type.

Commenter Name: Wade Foster, Manager, Scientific Programs Commenter Affiliation: The Fertilizer Institute Document Control Number: EPA

- HQ

- OAR

- 2010

- 0929

- 0064 Comment Excerpt Number: 16

Comment: EPA proposes to revise 40 C.F.R. § 98.226(c) to include a new data element, annual p ercent nitrous oxide emissions reduction for all production units combined (40 C.F.R. § 98.226(q)) and assign it to the “unit/process operating characteristics that are inputs to emission equations.” [ Footnote: 78 Fed. Reg. at 56,009, 56,021] TFI neither o pposes the inclusion of this data element in Subpart V nor EPA’s conclusion that this data element bests falls within the “production/throughput data that are not inputs to emission equations” data category. EPA proposes to revise 40 C.F.R. §98.226(c) to i nclude a new data element, annual percent nitrous oxide emissions reduction for all production units combined (40 C.F.R. §98.226(q)) and assign it to the “unit/process operating characteristics that are inputs to emission equations. [ Footnote: 78 Fed. Reg. at 56,009, 56,021] TFI disagrees with EPA’s proposal to release this information to the public. EPA concludes that the data could not be used to calculate nitric acid production for an individual train because it is an aggregate number. [ Footnote: 78 Fed. Reg. at 56,009] However, this is not the case if the facility only has a single nitric acid train with nitrous oxide abatement. Also, EPA asserts that the data element should not be afforded confidentiality protection because it is a publicly

- available pa rameter through the voluntary Climate Action Reserve (“CAR”). While some TFI members may participate in the CAR and release this information, others do not. Thus, it is inappropriate to base the decision to release this information, in part, on the fact th at some nitric acid producers voluntarily participate in the CAR. As such, TFI suggests that EPA not make a confidentiality determination for this data element as it has done for other data elements and, instead, allow individual reporters to assert confid ential business information claims for this data element, as appropriate. Response: The EPA agrees with the commenter that, in cases where a facility has only one nitric acid train with N 2 O, the data element “annual percent nitrous oxide emissions reductio n for all production units combined” (40 CFR 98.226(q)) could be used to calculate nitric acid production. See Section III.B of the preamble to the final rule for further discussion of the EPA’s response to this comment, including the decision to not final ize the confidentiality determination for this data element.Draft Deliberative

121 Commenter Name: Peter Pagano Commenter Affiliation: American Iron and Steel Institute 33 Document Control Number: EPA

- HQ

- OAR

- 2010

- 0929

- 0072 Comment Excerpt Number: 4

Comment: The new data elements related to flaring of iron and steel process gases under Subpart Y are listed in Table 6 of the preamble as data elements that do not support a CBI determination. AISI respectfully disagrees that such data are not CBI. The flared gases are process gases a nd therefore, reveal characteristics of iron and steel processes. AISI respectfully asserts that such data elements are details that may reveal operating efficiency, provides information that would allow competitors to infer production costs, process chara cteristics and therefore enable them to gain a competitive advantage. For these reasons, AISI asserts that the annual quantity of flare gas combusted (in MMscf per year)

- when using Equation Y

– 3 of subpart Y; annual average molecular weight of flare gas c ombusted (in mmBtu per MMscf when using Equation Y

– 3 of subpart Y); and annual average carbon content of flare gas combusted (expressed as a decimal fraction when using Equation Y

– 3 of subpart Y) are CBI and must be afforded such protection in any final ru le. Response: The EPA is not finalizing the proposed addition of these three new data elements (annual quantity of flare gas combusted, annual average molecular weight of flare gas combusted, and annual average carbon content of flare gas combusted, all for normal opera tions and startup, shutdown, and malfunction [ SSM ] events combined) to subpart Y

. See Section II.D.2 of the preamble to the final rule for the EPA’s rationale for this final decision.

Commenter Name: Karen Ritter Commenter Affiliation: API Document Contr ol Number: EPA

- HQ

- OAR

- 2010

- 0929

- 0074 Comment Excerpt Number: 2

Comment: API concurs with the CBI determination proposed by EPA for the new data elements for Subparts P and Y EPA is proposing several additional data elements for reporting under the various Subparts of the GHGRP: For Subpart Y, EPA proposes three new data elements that are not considered as CBI: 40 C.F.R. § 98.256(e)(11)(i) for annual quantity of flare gas combusted (in MMscf per year)(only when using Equation Y

– 3 of Subpart Y); 40 C.F.R. § 9 8.256(e)(11)(ii) for annual average molecular weight of flare gas combusted (in mmBtu per MMscf) (only when using Equation Y

– 3 of Subpart Y); and 40 C.F.R. § 98.256(e)(11)(iii) for annual average carbon content of flare gas combusted (expressed as a decima l fraction)(only when using Equation Y

– 3 of Subpart Y).

33 This comment was also supported by United States Steel Corporation (Docket I D No. EPA

- HQ

- OAR

- 2010

- 0929

- 0078).Draft Deliberative

122 API agrees with the category assignments and CBI classifications of these new data elements. Response: T he EPA thanks the commenter for their support of the EPA’s proposed CBI determinations for the p roposed new data elements in subparts P and Y.

Commenter Name: Paul Noe and Robert Glowinski Commenter Affiliation: American Forest and Paper Association/American Wood Council Document Control Number: EPA

- HQ

- OAR

- 2010

- 0929

- 0083 Comment Excerpt Number: 2

Comment: AF&PA has reviewed the additional four data elements EPA is proposing to add to the reporting regime for pulp and paper mills under Subpart AA and EPA’s proposal regarding the CBI status of each of those elements. We understand EPA’s thinking behind the need for two of the data elements and do not object to their addition. We also agree with the proposed approach to their confidentiality. Those two are:

 For each pulp mill lime kiln: Quantity of calcium oxide (CaO) produced (metric tons). EPA pr oposes this be considered CBI.

 For each pulp mill lime kiln: Percent of annual heat input, individually for each fossil fuel type. EPA proposes this not be considered CBI because these data have already been submitted to EPA under the 2011 ICR survey. Resp onse: The EPA thanks the commenter for their support of the EPA’s proposal to add two new reporting elements to subpart AA, and for the EPA’s proposed CBI determinations: q uantity of calcium oxide (CaO) produced and percent of annual heat input (individual ly for each fossil fuel type) to subpart AA, both for each pulp mill lime kiln

.


### 14.0 Additional Comments

Commenter Name: Kerry Kelly, Director, Federal Public and Regulatory Affairs Commenter Affiliation: Waste Management Document Control Number: EPA

- HQ

- OAR

- 201 0

- 0929

- 0061 Comment Excerpt Number: 1

Comment: Waste Management (WM) requests that the U.S. Environmental Protection Agency (EPA) extend the public comment period for 30 days for its Proposed Revisions to Reporting and Recordkeeping Requirements, and Propo sed Confidentiality Determinations under the Greenhouse Gas Reporting Program (hereinafter referred to as the “GHG Reporting CBI”) 78 Fed. Reg. 55,994 (September 11, 2013). Waste Management respectfully urges the Agency to consider a 30

- day extension to th e comment period so that we may have the time to successfully test the “inputs verification tool,” and provide pertinent comments as requested. We appreciate your consideration of our request.Draft Deliberative

123 Response: The EPA agrees with the commenter that the public nee ded additional time to prepare comments on the proposed rule. Refer to the November 6, 2013 , Federal Register notice (78 FR 66674) that extended the comment period from November 12, 2013 , to November 26, 2013.

Commenter Name: Bryan Brendle Commenter Affi liation: Portland Cement Association Document Control Number: EPA

- HQ

- OAR

- 2010

- 0929

- 0062 Comment Excerpt Number: 1

Comment: Because of the suspension of government operations, and the related cancellation of the stakeholder webinar, now scheduled for Octobe r 28, the associations request that EPA extend the comment period for a period of 30 days beyond the October 28 stakeholder webinar, thereby receiving comments by November 27, 2013. EPA’s latest proposed revisions to GHG reporting and related confidentiali ty determinations solicits comment on issues that are technically complex, and of interest to our members, requiring a thorough review and analysis. Significantly, many stakeholders plan to pose questions to EPA staff relating to the latest GHG/CBI proposa l to more clearly evaluate possible impacts on October 28 on current GHG reporting methods. Because of the highly technical nature of the GHG/CBI proposal, compounded by the difficulties associated with the cancellation of an opportunity for stakeholder di alogue, we request a 30 day extension of the comment period, to allow stakeholders sufficient time to prepare responsive comments. Response: See the EPA’s response to comment EPA

- HQ

- OAR

- 2010

- 0929

- 0061, Excerpt 1.

Commenter Name: Andrew T. O ’ Hare Commenter Affiliation: Portland Cement Association Document Control Number: EPA

- HQ

- OAR

- 2010

- 0929

- 0067 Comment Excerpt Number: 1

Comment: EPA has proposed several revisions to the MRR for GHGs since promulgating the rule in 2009. Federal regulators have proposed thr ee rulemakings during the last 12 months, and classify these proposed revisions as “currently active.” While cement manufacturers appreciate regulators’ efforts to address technical and CBI issues arising from implementation of the rule, regular revisions undermine business and regulatory certainty, and render difficult the comparison of data for individual facilities on a year to year basis. Response: The EPA recognizes that regulatory changes made to P art 98 require facilities to adjust to the new reporti ng requirements. The amendments in this action respond to stakeholder concern regarding the reporting of many inputs to equations. The changes made in this action doDraft Deliberative

124 not change the monitoring or calculation methods used by the facility, and therefore will not impact the comparison of data from year to year.

Commenter Name: G. Woods Commenter Affiliation: Littlejohn Engineering Associates Document Control Number: EPA

- HQ

- OAR

- 2010

- 0929

- 0057 Comment Excerpt Number: 2

Comment: Why does EPA think the GHG data being reported might be incorrect, especially since there are several areas where double reporting most likely occurs? Response : Veri fication of the greenhouse gas emissions submitted to the EPA is a critical component of the GHGRP and is necessary to ensu re the accuracy and completeness of reported data

. There are many factors that could cause incorrect emissions to be reported, such as mathematical errors, other human errors associated with entering data, and a misunderstanding of rule requirements. The EPA anticipates that there will be errors in reported GHG values. For example, a reporter may enter correct values for monthly as well as annual production; however, the error may be related to the emission factor used to calculate reported GHG emissi ons, not to the production values. Based on the EPA’s experience in managing the GHGRP and other emissions reporting programs, the EPA has determined that reporting errors routinely occur. Because of the complexity of the industrial processes involved, the facility

- to

- facility variations in process design and operation, the amount of process monitoring and data processing involved in preparing the annual reports, and the level of detail of the reporting requirements , rule misinterpretations and data handlin g errors are expected to occur to some degree even with the most diligent reporters. The EPA’s verification of reported data during the first four years of the GHGRP has identified a significant number of reporting errors, some of which are errors in repor ted GHG values. For reporting year 2010, this verification resulted in approximately 2,300 of the 6,700 reporting facilities resolving verification issues by responding to the EPA and/or resubmitting their annual report. For reporting year 2011, this verif ication resulted in approximately 3,000 of the 8,000 reporting facilities likewise resolving verification issues. For reporting year 2012, this verification resulted in approximately 3,450 of the 8,320 reporting facilities likewise resolving verification i ssues. This verification experience under the GHGRP confirms that there are reporting errors.

Commenter Name: Unknown Commenter Affiliation: Illinois Institute of Technology, Environmental Policy Class Document Control Number: EPA

- HQ

- OAR

- 2010

- 0929

- 0060 Co mment Excerpt Number: 1

Comment: 1) Does EPA anticipate systematic differences between the EPA model and other models used to calculate GHG emissions? 2) How does and how will EPA verify the modelsDraft Deliberative

125 used to calculate GHG emissions? 3) Will EPA analyze the p ositive or negative implications of the reported data either by state, region, nationally, or for individual companies? 4) If EPA discovers excellent GHG emissions by a company, will those best practices be shared with others? Response: The EPA provides th e following responses, which correspond to the numbers provided in the comments:

1. This rulemaking does not address the methodologies developed for calculating greenhouse gas emissions for the GHGRP, nor does it address how the methodologies differ from othe r models or methodologies that exist to calculate greenhouse gas emissions. For a detailed analysis of methodologies considered for the GHGRP , please refer to the docket for the 2009 Proposed Rule for the Greenhouse Gas Reporting Program ( Docket ID No. EPA

- HQ

- OAR

2008

- 0508 ).
2. For information on how the EPA verifies data reported to the GHGRP , please see the proposed preamble to this action ( 78 FR 55994 ) as well as the Greenhouse Gas Reporting Program Final Rule in 2009 ( 74 FR 56260 ).
3. This rulemaking does not address whether or how the EPA will analyze the data reported to the GHGRP

. For additional information on published GHGRP data and related documents, please see http://www.epa.go v/ghgreporting/ghgdata/reportingdatasets.html

. 4. This rulemaking does not address the sharing of best practices regarding GHG emissions.



### 15.0 Out of Scope Comments

Commenter Name: Anonymous Commenter Affiliation: Private Citizen Document Control Number: EPA

- HQ

- OAR

- 2010

- 0929

- 0059 Comment Excerpt Number: 1

Comment: This reporting and responsibility requirement is an important step forward in climate action. Please adopt a strong and stringent final regulation. Require emitters to pay the full cost for any a nd all emissions released, through a strong mitigations program, administered by the government not industry, into which the full cost is paid and then government awards to actual emissions reduction sequester, mode shift, housing near transit, transit ope rations, etc. DO not all sequester which releases stored carbon (eg cutting down a forest to store underground or to replant a new forest) released carbon needs to be counted AGAINST the emitters as it increases emissions (Fracking is a good example of thi s

- ground water contamination is eventually released to the atmosphere or if not is more deadly to humans than the original emissions

- these results cannot be financed as emissions mitigations or carbon removal).Draft Deliberative

126 Commenter Name: Margaia Commenter Affili ation: Unknown Document Control Number: EPA

- HQ

- OAR

- 2010

- 0929

- 0065 Comment Excerpt Number: 1

Comment: What I want to emphasize: PLEASE, IT'S TIME FOR STRONG RULES LIMITING CARBON POLLUTION FROM NEW AND EXISTING POWER PLANTS!...AND THAT MAY MEAN: ENFORCE THO SE RULES AND THE CLEAN AIR ACT! When will the USA stand up for CLIMATE CHANGE?!!!! Seriously, not just in words! President Obama is very eloquent in speaking of doing our best to "arrest" climate change, but the various departments that could do something, just don't seem to follow suit! It's very discouraging and disheartening for all of us citizens who want to do all we can to save our environment.

Commenter Name: Glenn E. Davis Commenter Affiliation: HelperBroom LLC

- Mississippi Lime Document Control Number: EPA

- HQ

- OAR

- 2010

- 0929

- 0069 Comment Excerpt Number: 5

Comment: MLCO is also concerned about the data elements presently classified as "ND" (no determination has been made for this data element) in USEPA's Table A

- 1: Final Data Category Assignments an d Confidentiality Determinations. The specific concerns and suggested refinements to address these matters are included below. While USEPA has addressed almost all of MLCO's concerns regarding subpart S data elements we consider CBI, one data element remai ns denoted as "ND" in USEPA's Table A

- 1: Final Data Category Assignments and Confidentiality Determinations. No CBI determination has yet been made for data element §98.196(b)(15), Annual lime production capacity (tons) per facility. While MLCO understands USEPA's "ND" designation, as well as its CBI justification procedures, we propose that this data element

— which MLCO believes absolutely qualifies for CBI protection

—

be deemed CBI through the regulatory process in order to avoid any error or misundersta nding or inadvertent release of sensitive data considered CBI by the reporting facility. Section VI of our September 7, 2010 comment letter and Section III.A of our March 4, 2011 comment letter, both included in Exhibit A, set forth our explicit rationale for this request. [See DCN EPA

- HQ

- OAR

- 2010

- 0929

- 0069 for Exhibit A.]Draft Deliberative

127 Commenter Name: Various Commenter Affiliation: Natural Resources Defense Council/Environmental Defense Fund/Earthjustice/Clean Air Task Force/Sierra Club Document Control Number: EPA

- HQ

- OAR

- 2010

- 0929

- 0088 Comment Excerpt Number: 1

Comment: We disagree that EPA lacks the necessary information to set performance standards for methane. The agency has a mandatory legal duty to address these harmful emissions and robust Subpart W data only st rengthens the imperative for addressing these harmful emissions

.